COMMITTEE SUBSTITUTE
FOR
H. B. 4684
(By Delegates
Staton, Amores, Rowe, Smirl and Thomas
)
(Originating in the Committee on Finance)
[March 5, 1998]
A BILL to
amend and reenact sections three, six, eight, nine,
ten, eleven, thirteen, thirteen-a, fifteen, sixteen,
seventeen and nineteen, article twenty-one, chapter twenty- nine of the code of West Virginia, one thousand nine hundred
thirty-one, as amended, all relating to public defender
services; continuing public defender services; describing
duties, powers and limitations of the executive director and
public defender services; contracts with public defender
corporations; activation of public defender corporations;
required financial statements; subdivision of public
defender offices; order of appointment of panel attorneys
and public defender offices; applications for funding;
proposed budgets and operating plans; claims for
compensation and expenses; requiring certification of the
date of submission of claims; requiring that claims be
submitted within one hundred eighty days of last date of
service; requiring the development and distribution of an electronic voucher system by auditor, treasurer,
administrative director of the courts and executive
director; requiring the development and distribution of an
abbreviated voucher form; establishing the submission of
abbreviated voucher forms directly to the executive
director; required expedited payment of claims of certain
claims; establishing that time spent awaiting hearing or
trial shall be compensated at the rate of forty-five dollars
per hour; eliminating double billing while awaiting trial or
hearing; restricting compensation for time spent by panel
attorneys traveling outside the circuit of appointment;
limiting each panel attorney to seven hundred billable hours
per calender year except when the appointing judge approves
a greater number of hours; limiting the total cost of
investigative, expert or other services that may be obtained
without prior approval to three hundred dollars;
appointments to board of directors; establishing that the
board of directors is subject to the open meetings laws;
establishing that a public defender's budget is subject to
approval of the executive director and legislative
appropriation; requiring the executive director to establish
and annually update and review of financial guidelines for
determining client eligibility; establishing the
circumstances and manner according to which magistrates and
circuit judges shall order repayment costs of
representation; requiring the magistrate or circuit judge to order payment forthwith or within a specified time when a
person is required to repay costs; authorizing a person who
has been assessed costs to petition the circuit court for a
modification of the order and giving the circuit court power
to modify the method or amount of payment; authorizing the
magistrate or circuit court to make repayment of costs a
condition of probation or suspended sentence; requiring the
clerk of the magistrate or circuit clerk to notify the
executive director that payment of costs was ordered;
requiring the executive director to ascertain the costs of
providing representation and to certify that amount;
establishing that when a person is ordered to pay costs,
those costs constitute a lien against all property of the
person ordered to pay the costs; establishing procedure for
enforcement of the lien; requiring circuit clerks to keep
itemized records of counsel fees and expenses and to provide
reports of payment to the executive director; criminal
penalties; requiring the report of the annual audit to be
submitted to the joint committee on government and finance
as well filed with the public defender service.
Be it enacted by the Legislature of West Virginia:
That sections three, six, eight, nine, ten, eleven,
thirteen, thirteen-a, fifteen, sixteen, seventeen and nineteen,
article twenty-one, chapter twenty-nine of the code of West
Virginia, one thousand nine hundred thirty-one, as amended,
be
amended and reenacted, all to read as follows:
ARTICLE 21. PUBLIC DEFENDER SERVICES.
§29-21-3. Establishment of public defender services, termination
date.
There is hereby created an executive agency known as public
defender services. The agency shall administer, coordinate and
evaluate programs by which the state provides legal
representation to indigent persons, monitor the progress of
various delivery systems, and recommend improvements. The agency
shall maintain its office at the state capitol.
Pursuant to the provisions of article ten, chapter four of
this code, public defender services shall continue to exist until
the first day of July, one thousand nine hundred ninety-eight
ninety-nine.
§29-21-6. Powers, duties and limitations.
(a) Consistent with the provisions of this article, the
agency executive director is authorized to make grants to and
contracts with public defender corporations and with individuals,
partnerships, firms, corporations and nonprofit organizations,
for the purpose of providing legal representation under this
article, and may make such other grants and contracts as are
necessary to carry out the purposes and provisions of this
article: Provided, That any contract entered into between the
executive director and any public defender corporation shall
contain a detailed description of each position, salary and
associated employee benefits, equipment, rent, current expenses
and other such information prescribed by the executive director.
(b) The agency executive director is authorized to accept,
and employ or dispose of in furtherance of the purposes of this
article, any money or property, real, personal or mixed, tangible
or intangible, received by gift, devise, bequest or otherwise.
(c) The agency executive director shall establish and the
executive director or his designate shall operate a criminal law
research center as provided for in section seven of this article.
This center shall undertake directly, or by grant or contract, to
serve as a clearinghouse for information; to provide training and
technical assistance relating to the delivery of legal
representation; and to engage in research, except that broad
general legal or policy research unrelated to direct
representation of eligible clients may not be undertaken.
(d) The agency shall establish and the executive director
or his designate shall operate an accounting and auditing
division to require and monitor the compliance with this article
by public defender corporations and other persons or entities
receiving funding or compensation from the agency. The executive
director shall have the authority to reduce or reject vouchers or
requests for payment submitted by panel attorneys. This The
accounting and auditing division shall review all plans and
proposals for grants and contracts, and shall make a
recommendation of approval or disapproval to the executive
director. The division shall prepare, or cause to be prepared,
reports concerning the evaluation, inspection or monitoring of
public defender corporations and other grantees, contractors, persons or entities receiving financial assistance under this
article, and shall further carry out the agency's
responsibilities for records and reports as set forth in section
eighteen of this article.
The accounting and auditing division shall require each
public defender corporation to submit financial statements
monthly and to periodically report monthly on the billable and
nonbillable time of its professional employees and such other
information as the executive director may deem necessary to carry
out the purposes of this article or any duty required of the
executive director or the agency, including, but not limited to,
time utilized in administration of the respective offices, so as
to compare such time to similar time expended in nonpublic law
offices for like activities.
The accounting and auditing division shall provide to the
executive director assistance in the fiscal administration of all
of the agency's divisions. Such assistance shall include, but
not be limited to, budget preparation and statistical analysis.
(e) The agency shall establish and the executive director
or a person designated by the executive director shall operate an
appellate advocacy division for the purpose of prosecuting
litigation on behalf of eligible clients in the supreme court of
appeals. The executive director or a person designated by the
executive director shall be the director of the appellate
advocacy division. The appellate advocacy division shall
represent eligible clients upon appointment by the circuit courts, or by the supreme court of appeals. The division may,
however, refuse such appointments due to a conflict of interest
or if the executive director has determined the existing caseload
cannot be increased without jeopardizing the appellate division's
ability to provide effective representation. In order to
effectively and efficiently utilize the resources of the
appellate division the executive director may restrict the
provision of appellate representation to certain types of cases.
The executive director is empowered to select and employ
staff attorneys to perform the duties prescribed by this
subsection. The division shall maintain vouchers and records for
representation of eligible clients for record purposes only.
§29-21-8. Public defender corporations.
(a) In each judicial circuit of the state, there is hereby
created a "public defender corporation" of the circuit. The
purpose of these public defender corporations is to provide legal
representation in the respective circuits in accordance with the
provisions of this article.
(b) If the judge of a single-judge circuit, the chief judge
of a multi-judge circuit or a majority of the active members of
the bar in the circuit determine there is a need to activate the
corporation, they shall certify that fact in writing to the
executive director. The executive director shall allocate funds
to those corporations that have been activated so certifying in
the order in which he or she deems most efficient and cost
effective.
(c) The executive director shall, by January 1, 1999,
subdivide the public defender office in any single-county
circuits which have four or more circuit judges and an activated
public defender corporation. The executive director shall
subdivide public defender offices in all circuits with two or
more circuit judges in which a public defender corporation is
hereafter activated. The executive director may subdivide
offices in all circuits in which there is an activated public
defender corporation. In circuits with subdivided public
defender offices, the executive director shall determine how the
caseload shall be divided. The subdivision of an office shall be
made in a manner that would permit a subdivision to represent a
client when another subdivision of the office is prevented from
doing so by the West Virginia Rules of Professional Conduct.
(c)(d) Public defender corporations may apply in writing to
the executive director for permission to merge to form multi- circuit or regional public defender corporations. Applications
for mergers shall be subject to the review procedures set forth
in section eleven of this article.
§29-21-9. Panel attorneys.
(a) In each circuit of the state, the circuit court shall
establish and maintain regional and local panels of private
attorneys-at-law who shall be available to serve as counsel for
eligible clients.
An attorney-at-law may become a panel attorney and be
enrolled on the regional or local panel, or both, to serve as
counsel for eligible clients, by informing the court. An agreement to accept cases generally or certain types of cases
particularly shall not prevent a panel attorney from declining an
appointment in a specific case.
(b) In all cases where an attorney-at-law is required to
be appointed for an eligible client, the appointment shall be
made by the circuit judge. In circuits where a public defender
office is in operation, the judge shall appoint the public
defender office unless such appointment is not appropriate due to
a conflict of interest or unless the public defender corporation
board of directors or the public defender, with the approval of
the board, has notified the court that the existing caseload
cannot be increased without jeopardizing the ability of defenders
to provide effective representation.
If the public defender office is not available for
appointment, the court shall appoint one or more panel attorneys
from the local panel. If no local panel attorneys are available,
the court shall appoint a public defender office in operation in
an adjoining circuit. If a public defender office in an
adjoining circuit is not available for appointment, the court
shall appoint one or more panel attorneys from an adjoining
circuit. If there is no local panel attorney available, the
judge shall appoint one or more panel attorneys from the regional
panel . If there is no regional panel attorney available, the
judge may appoint a public defender office from an adjoining
circuit if such public defender office agrees to the appointment.
In circuits where no public defender office is in operation, the judge shall first refer to the local panel and then to the
regional panel in making appointments, and if an appointment
cannot be made from the panel attorneys, the judge may appoint
the public defender office of an adjoining circuit if the office
agrees to the appointment. If no adjoining public defender is
available, the judge shall appoint a panel attorney from an
adjoining circuit. In any circuit, when there is no public
defender, or assistant public defender, local panel attorney or
regional panel attorney from an adjoining circuit available, the
judge may appoint one or more qualified private attorneys to
provide representation, and such private attorney or attorneys
shall be treated as panel attorneys for that specific case. In
any given case, the appointing judge may alter the order in which
attorneys are appointed if the case requires particular knowledge
or experience on the part of the attorney to be appointed.
§29-21-10. Public defender corporation -- Intent to apply for
funding.
(a) Any public defender corporation applying to public
defender services for financial assistance to establish a program
to provide legal representation or proposing a major substantive
modification to an existing program shall notify the executive
director, the joint committee on government and finance and the
circuit judges in the area in which the program will deliver
legal representation of the intent to apply for such assistance
or modification. Such notice shall be given at least thirty days
prior to the filing of an application or a proposal for modification.
(b) Notifications shall include a summary description of
the proposed program. The summary description shall contain the
following information:
(1) The identity of the applicant;
(2) The geographical area to be served by the proposed
program;
(3) A brief description of the proposed program, general
size or scale, estimated cost, or other characteristics which
will enable the circuit court to determine how the system for
representation of indigents within the circuit may be affected by
the proposed program; and
(4) The estimated date the public defender corporation
expects to formally file an application or modification proposal.
§29-21-11. Public defender corporations -- Funding applications;
legal representation plans; review.
(a) Any public defender corporation or any other entity
wishing to secure state financial assistance through the agency
shall submit a funding application to the executive director.
The executive director shall submit a copy of the funding
application to the joint committee on government and finance
within thirty days of receiving it.
(b) The funding application, which is to be submitted in a
form prescribed by the executive director, shall contain a
general description of the plans and policies the applicant
intends to utilize in providing legal representation, proposals for staffing, salary and employee benefits, equipment, rent,
current expenses and such other information prescribed by the
executive director.
(c) All applications for financial assistance from public
defender services under the provisions of this article must be
submitted to the circuit judges of the circuit for review prior
to their submission to public defender services.
Reviews shall be completed by circuit judges within fifteen
thirty days after receipt. If the public defender corporation or
other applicant has not received a response within the fifteen- day period, the public defender corporation may consider the
judge to have waived his or her opportunity to review and comment
on the proposed program or program modification and may submit
the application to public defender services.
(d) Completed applications shall include:
(1) All comments and recommendations made by the circuit
judges, along with a statement that such comments have been
considered prior to submission of the application; or
(2) If no comments have been received from circuit judges,
a statement that the procedures outlined in this section have
been followed and that no comments or recommendations have been
received.
§29-21-13. Public defender corporation funding; record keeping
by public defender corporations.
(a) On or before the first day of May of each year, every
public defender corporation shall submit to the executive director a proposed budget for the next fiscal year. The
accounting and auditing division shall review all funding
applications and prepare recommendations for an operating plan
and budget for each public defender corporation. The executive
director shall review the funding applications and the accounting
and auditing recommendations and shall, in consultation with the
applicants, prepare a plan an operating plan for each public
defender corporation for providing legal services.
(b) Upon final approval of a funding application by the
executive director, the approved budget shall be set forth in an
approval notice. The total cost to the agency shall not exceed
the amount set forth in the approval notice and the agency shall
not be obligated to reimburse the recipient for costs incurred in
excess of the amount unless and until a program modification has
been approved in accordance with the provisions of this article.
(c) Funding of public defender corporations or other
programs or entities providing legal representation under the
provisions of this article shall be by annual grants disbursed in
such periodic allotments as the executive director shall deem
appropriate.
(d) All recipients of funding under this article shall
maintain such records as required by the executive director.
§29-21-13a. Compensation and expenses for panel attorneys.
(a) All panel attorneys shall maintain detailed and
accurate records of the time expended and expenses incurred on
behalf of eligible clients, and upon completion of each case, exclusive of appeal, shall submit to the appointing court a
voucher for services. Claims for fees and expense reimbursements
shall be submitted to the appointing court on forms approved by
the executive director. Claims shall contain a certification
from the panel attorney of the date the claim is submitted to the
appointing court or to the executive director. Claims submitted
to the appointing judge or executive director more than four
years one hundred and eighty days after the last date of service
shall be rejected.
The appointing court shall review the voucher to determine
if the time and expense claims are reasonable, necessary and
valid and shall forward the voucher to the agency with an order
approving payment of the claimed amount or of a lesser sum the
court considers appropriate.
(b) Notwithstanding any other provision of this section to
the contrary, public defender services may pay by direct bill,
prior to the completion of the case, litigation expenses incurred
by attorneys appointed under this article.
(c) Notwithstanding any other provision of this section to
the contrary, a panel attorney may be compensated for services
rendered and reimbursed for expenses incurred prior to the
completion of the case where: (1) More than six months have
expired since the commencement of the panel attorney's
representation in the case; and (2) no prior payment of attorney
fees has been made to the panel attorney by public defender
services during the case. The amounts of any fees or expenses paid to the panel attorney on an interim basis, when combined
with any amounts paid to the panel attorney at the conclusion of
the case, shall not exceed the limitations on fees and expenses
imposed by this section.
(d) The auditor, treasurer, administrative director of the
courts and executive director shall develop a system for
electronic submission and payment of vouchers, by the thirty- first day of December, nineteen hundred and ninety-eight,
including the abbreviated voucher form described in subsection
(e) of this section, and shall develop computer software for
panel attorneys to use in the preparation and submission of
vouchers. The executive director may charge a reasonable fee for
providing copies of the software.
(e) The executive director shall develop and distribute to
panel attorneys an abbreviated voucher form for claims of two
hundred and fifty dollars or less by the first day of July,
nineteen hundred and ninety-eight. Notwithstanding any
provisions of this article to the contrary, panel attorneys shall
submit completed abbreviated voucher forms directly to the
executive director. Expedited
payment shall be made to panel
attorneys at the conclusion of a case if the total claim for the
case, including expenses, is two hundred and fifty dollars or
less and if the claim is submitted on the abbreviated form.
Claims of two hundred and fifty dollars or less submitted on the
abbreviated voucher form are not claims required by law to be
allowed by any court as described in section one, article three, chapter twelve of this code.
(d) (f) In each case in which a panel attorney provides
legal representation under this article, and in each appeal after
conviction in circuit court, the panel attorney shall be
compensated at the following rates for actual and necessary time
expended for services performed and expenses incurred subsequent
to the effective date of this article:
(1) For attorney's work performed out of court,
compensation shall be at the rate of forty-five dollars per hour.
For paralegal's work performed out of court for the attorney,
compensation shall be at the rate of the paralegal's regular
compensation on an hourly basis or, if salaried, at the hourly
rate of compensation which would produce the paralegal's current
salary, but in no event shall the compensation exceed twenty
dollars per hour. Out-of-court work includes, but is not limited
to, travel, interviews of clients or witnesses, preparation of
pleadings and prehearing or pretrial research, and all time spent
awaiting hearing or trial if the presence of the attorney is
required by the court for such hearing or trial. Time spent
waiting for hearing or trial may not be billed if the attorney is
performing work for another client during that period. Time
spent traveling to the circuit in which the appointment is made
from outside the circuit may not be billed without prior approval
from the appointing judge.
(2) For attorney's work performed in court, compensation
shall be at the rate of sixty-five dollars per hour. No compensation for paralegal's work performed in court shall be
allowed. In-court work includes, but is not limited to, all
actual time spent awaiting in hearing or trial before a judge,
magistrate, special master or other judicial officer. if the
presence of the attorney is required.
(3) The maximum amount of compensation for out-of-court and
in-court work under this subsection is as follows: For
proceedings of any kind involving felonies for which a penalty of
life imprisonment may be imposed, the amount as the court may
approve; for all other eligible proceedings, three thousand
dollars unless the court, for good cause shown, approves payment
of a larger sum.
(4) Each individual panel attorney shall be limited to a
maximum of seven hundred billable hours per calendar year for all
representation in all matters to which he or she is appointed
unless the appointing judge for good cause shown supported by
findings of fact approves, by separate order, a greater number of
billable hours.
(e) (g) Actual and necessary expenses incurred in providing
legal representation for proceedings of any kind involving
felonies for which a penalty of life imprisonment may be imposed,
including, but not limited to, expenses for travel, transcripts,
salaried or contracted investigative services and expert
witnesses, shall be reimbursed in an amount as the court may
approve. For all other eligible proceedings, actual and
necessary expenses incurred in providing legal representation, including, but not limited to, expenses for travel, transcripts,
salaried or contracted investigative services and expert
witnesses, shall be reimbursed to a maximum of fifteen hundred
dollars unless the court, for good cause shown, approves
reimbursement of a larger sum: Provided, That the total cost of
investigative, expert, or other services that may be obtained
without prior authorization of the appointing court may not
exceed $300.00, exclusive of expenses reasonably incurred.
Expense vouchers shall specifically set forth the nature,
amount and purpose of expenses incurred and shall provide
receipts, invoices or other documentation required by the
executive director and the state auditor:
(1)(A) Reimbursement of expenses for production of
transcripts of proceedings reported by a court reporter is
limited to the cost per original page set forth in section four,
article seven, chapter fifty-one of this code. Reimbursement of
the cost of copies of such transcripts is limited to the cost per
copy page as provided for under said section. It is the duty of
the executive director of public defender services to maintain
computer records of all transcripts, including originals and
copies, for which payment has been made.
(B)(i) There shall be no reimbursement of expenses for or
production of a transcript of a preliminary hearing before a
magistrate or juvenile referee, or of a magistrate court jury
trial, which has been reported by a court reporter at the request
of the attorney, where the preliminary hearing or jury trial has also been recorded electronically in accordance with the
provisions of section eight, article five, chapter fifty of this
code or court rule.
(ii) Reimbursement of the expense of an appearance fee for
a court reporter who reports a proceeding other than one
described in subparagraph (i), paragraph (B), subdivision (1) of
this subsection, or who reports a proceeding which is not
reported by an official court reporter acting in his or her
official capacity for the court, is limited to twenty-five
dollars. Where a transcript of a proceeding is produced, there
shall be no reimbursement for the expense of any appearance fee.
Where a transcript is requested by the attorney after an
appearance fee has been paid, reimbursement of the expense
incurred to obtain the transcript is limited to the cost of
producing the transcript, within the prescribed limitations of
paragraph (A) of this subdivision, less the amount of the paid
appearance fee.
(iii) Reimbursement of travel expenses incurred for travel
by a court reporter is subject to the limitations provided by
subdivision (2) of this subsection.
(iv) Except for the appearance fees provided in this
paragraph, there shall be no reimbursement for hourly court
reporters' fees or fees for other time expended by the court
reporter, either at the proceeding or traveling to or from the
proceeding.
(C) Reimbursement of the cost of transcription of tapes electronically recorded during preliminary hearings or magistrate
court jury trials is limited to the rates established by the
supreme court of appeals for the reimbursement of transcriptions
of electronically recorded hearings and trial.
(2) Reimbursement for any travel expense incurred in an
eligible proceeding is limited to the rates for the reimbursement
of travel expenses established by rules promulgated by the
governor pursuant to the provisions of section eleven, article
eight, chapter twelve of this code and administered by the
secretary of the department of administration pursuant to the
provisions of section forty-eight, article three, chapter five-a
of this code.
(3) Reimbursement for investigative services is limited to
a rate of thirty dollars per hour for work performed by an
investigator.
(f) (h) For purposes of compensation under this section, an
appeal from a final order of the circuit court, or proceeding
seeking an extraordinary remedy, made to the supreme court of
appeals, shall be considered a separate case.
(g) (i) Vouchers submitted under this section shall
specifically set forth the nature of the service rendered, the
stage of proceeding or type of hearing involved, the date and
place the service was rendered and the amount of time expended in
each instance. All time claimed on the vouchers shall be
itemized to the nearest tenth of an hour. If the charge against
the eligible client for which services were rendered is one of several charges involving multiple warrants or indictments, the
voucher shall indicate the fact and sufficiently identify the
several charges so as to enable the court to avoid a duplication
of compensation for services rendered. The executive director
shall refuse to requisition payment for any voucher which is not
in conformity with the recordkeeping, compensation or other
provisions of this article and in such circumstance shall return
the voucher to the court or to the service provider for further
review or correction.
§29-21-15. Public defender corporations -- Board of directors.
(a) The governing body of each public defender corporation
shall be a board of directors consisting of persons who are
residents of the area to be served by the public defender
corporation.
(1) In multi-county circuits, and in the case of multi- circuit or regional corporations, the county commission of each
county within the area served shall appoint a director, who shall
not be an attorney-at-law. The president of each county bar
association within the area served shall appoint a director, who
shall be an attorney-at-law: Provided, That in a county where
there is not an organized and active bar association, the circuit
court shall convene a meeting of the members of the bar of the
court resident within the county and such members of the bar
shall elect one of their number as a director. The governor
shall appoint one director, who shall serve as chairman, who
may be an attorney-at-law, unless such appointment would result in there being an even number of directors, in which event the
governor shall appoint two directors, one of whom may be an
attorney-at-law. The governor's appointees shall serve four-year
terms which terms shall coincide with the term of the governor.
Appointments may be made for unexpired terms as may be necessary.
Other board members' terms shall be as determined by the board.
(2) In single-county circuits, the manner of selecting
directors shall be the same as that described in subdivision (1)
of this subsection, except that the county commission shall
appoint two directors rather than one, and the bar shall appoint
two directors rather than one.
(3) In the event the person or entity required to fill a
position described in this subsection fails to do so, the
executive director may fill the position until such time as the
position is filled in accordance with the provisions of this
subsection.
(b) The board of directors shall have at least four
meetings a year. Timely and effective prior public notice of all
meetings shall be given pursuant to rules promulgated in
accordance with the provisions of section three, article nine-a,
chapter six of this code, and all meetings shall be public except
for those concerned with matters properly discussed in executive
session. The board of directors shall be a public body subject
to the provisions of article nine-a, chapter six of this code.
(c) The board of directors shall establish and enforce
broad policies governing the operation of the public defender corporation but shall not interfere with any attorney's
professional responsibilities to clients. The duties of the
board of directors shall include, but not be limited to, the
following:
(1) Appointment of the public defender and any assistant
public defenders as may be necessary to enable the public
defender corporation to provide legal representation to eligible
clients; and
(2) Approval of the public defender corporation's budget
and the fixing of professional and clerical salaries, subject to
the approval of the executive director and legislative
appropriation: Provided, That the compensation paid to any part-
time public defender, part-time assistant public defender or
other part-time employee shall not include benefits such as
retirement, health insurance or paid leave time for illness or
vacation unless public defender services has certified in writing
to the board of directors that there exists sufficient funding to
provide such benefits and the board of directors authorizes such
benefits to be included in the compensation; and
(3) Removal of any public defender, assistant public
defender or other employee for misfeasance, malfeasance or
nonfeasance.
(d) To the extent that the provisions of chapter thirty-one
of this code regarding nonprofit corporations are not
inconsistent with this article, the provisions of said chapter
shall be applicable to the board of directors of the public defender corporation.
(e) While serving on the board of directors, no member may
receive compensation from the public defender corporation, but
a member may receive payment for normal travel and other
out-of-pocket expenses required for fulfillment of the
obligations of membership and may accept appointments to
represent eligible clients so long as he or she does not discuss
a particular case with any public defender, assistant public
defender or other employee of the office governed by the board.
Directors may not serve as cocounsel with the public defender or
assistant public defender in any matter.
§29-21-16. Determination of maximum income levels; eligibility
guidelines; use of form affidavit; inquiry by
court; denial of services; repayment; liens;
limitation on remedies against affiant.
(a) The executive director agency shall establish, and
periodically annually review and update financial guidelines for
determining eligibility for legal representation made available
under the provisions of this article. The agency shall adopt a
financial affidavit form for use by persons seeking legal
representation made available under the provisions of this
article. The agency shall promulgate rules requiring the
applicant to document his or her financial need for publicly
funded legal representation.
(b) All persons seeking legal representation made available
under the provisions of this article shall complete the agency's financial affidavit form, which shall be considered as an
application for the provision of publicly funded legal
representation.
(c) Any juvenile shall have the right to be effectively
represented by counsel at all stages of proceedings brought under
the provisions of article five, chapter forty-nine of this code.
If the child advises the court of his or her inability to pay for
counsel, the court shall require the child's parent or custodian
to execute a financial affidavit. If the financial affidavit
demonstrates that neither of the child's parents, or, if
applicable, the child's custodian, has sufficient assets to pay
for counsel, the court shall appoint counsel for the child. If
the financial affidavit demonstrates that either of the child's
parents, or, if applicable, the child's custodian, does have
sufficient assets to pay for counsel, the court shall order the
parent, or, if applicable, the custodian, to provide, by paying
for, legal representation for the child in the proceedings.
The court may disregard the assets of the child's parents or
custodian and appoint counsel for the child, as provided above,
if the court concludes, as a matter of law, that the child and
the parent or custodian have a conflict of interest that would
adversely affect the child's right to effective representation of
counsel, or concludes, as a matter of law, that requiring the
child's parent or custodian to provide legal representation for
the child would otherwise jeopardize the best interests of the
child.
(d) In circuits in which no public defender office is in
operation, circuit judges shall make all determinations of
eligibility. In circuits in which a public defender office is in
operation, all determinations of indigence shall be made by a
public defender office employee designated by the executive
director. Such determinations shall be made after a careful
review of the financial affidavit submitted by the person seeking
representation. The review of the affidavit shall be conducted
in accord with the financial eligibility guidelines established
by the agency pursuant to subsection (a) of this section. In
addition to the financial eligibility guidelines, the person
determining eligibility shall consider other relevant factors,
including, but not limited to, those set forth in subdivisions
(1) through (9) of subsection (e) of this section. If there is
substantial reason to doubt the accuracy of information in the
financial affidavit, the person determining eligibility may make
such inquiries as are necessary to determine whether the affiant
has truthfully and completely disclosed the required financial
information.
After reviewing all pertinent matters the person determining
eligibility may find the affiant to be eligible to have the total
cost of legal representation provided by the state, or may find
that the total cost of providing representation shall be
apportioned between the state and the eligible person. A person
whose annual income exceeds the maximum annual income level
allowed for eligibility may receive all or part of the necessary legal representation, or a person whose income falls below the
maximum annual income level for eligibility may be denied all or
part of the necessary legal representation if the person
determining eligibility finds the person's particular
circumstances require that eligibility be allowed or disallowed,
as the case may be, on the basis of one or more of the nine
factors set forth in subsection (e) of this section. If legal
representation is made available to a person whose income exceeds
the maximum annual income level for eligibility, or if legal
representation is denied to a person whose income falls below the
maximum annual income level for eligibility, the person
determining eligibility shall make a written statement of the
reasons for the action and shall specifically relate those
reasons to one or more of the factors set forth in subsection (e)
of this section.
(e) The following factors shall be considered in
determining eligibility for legal representation made available
under the provisions of this article:
(1) Current income prospects, taking into account seasonal
variations in income;
(2) Liquid assets, assets which may provide collateral to
obtain funds to employ private counsel and other assets which may
be liquidated to provide funds to employ private counsel;
(3) Fixed debts and obligations, including federal, state
and local taxes and medical expenses;
(4) Child care, transportation and other expenses necessary for employment;
(5) Age or physical infirmity of resident family members;
(6) Whether the person seeking publicly funded legal
representation has made reasonable and diligent efforts to obtain
private legal representation, and the results of those efforts;
(7) The cost of obtaining private legal representation with
respect to the particular matter in which assistance is sought;
(8) Whether the person seeking publicly funded legal
representation has posted a cash bond for bail or has obtained
release on bond for bail through the services of a professional
bondsman for compensation and the amount and source of the money
provided for such bond;
(9) The consequences for the individual if legal assistance
is denied.
(f) Legal representation requested by the affiant may not
be denied in whole or part unless the affiant can obtain legal
representation without undue financial hardship. Persons
determined to be ineligible by public defender personnel may have
the initial determination reviewed by a local circuit judge who
may amend, modify or rewrite the initial determination. At any
stage of the proceedings a circuit court may determine a prior
finding of eligibility was incorrect or has become incorrect as
the result of the affiant's changed financial circumstances, and
may revoke any prior order providing legal representation. In
such event any attorney previously appointed shall be entitled to
compensation under the provisions of law applicable to such appointment for services already rendered.
(g) In the circumstances and manner set forth below,
magistrates and circuit judges may shall order repayment to the
state, through the office of the clerk of the circuit court
having jurisdiction over the proceedings, of the costs of
representation provided under this article:
(1) In every case in which services are provided to an
indigent person and an adverse judgment has been rendered against
such person, the magistrate or circuit court may shall require
that person, and in juvenile cases, require the juvenile's
parents or custodian, to pay as costs the compensation of
appointed counsel, the expenses of the defense and such other
fees and costs as authorized by statute.
(2) The magistrate or circuit court shall not order set
payment schedules for a person to pay costs unless the person is
able to pay without in a manner which will cause undue hardship.
In determining the amount and method of repayment of costs, the
magistrate or circuit court shall take account of the financial
resources of the person, the person's ability to pay and the
nature of the burden that payment of costs will impose. The fact
that the magistrate or circuit court initially determines, at the
time of a case's conclusion, that it is not proper to order the
repayment of costs does not preclude the court from subsequently
ordering repayment should the person's financial circumstances
change immediate repayment of costs does not preclude the court
from setting a payment schedule to allow later payment or payments in amounts and at such times as will not likely cause
undue hardship.
(3) When a person is ordered able to repay costs, the
magistrate or circuit court may shall order payment to be made
forthwith or within a specified period of time or in specified
installments. If a person is sentenced to a term of
imprisonment, an order for repayment of costs is not enforceable
during the period of imprisonment unless the court expressly
finds, at the time of sentencing, that the person has sufficient
assets to pay the amounts ordered to be paid or finds there is a
reasonable likelihood the person will acquire the necessary
assets in the foreseeable future.
(4) A person who has been ordered to repay costs, and who
is not in contumacious default in the payment thereof, may at any
time petition the sentencing circuit court of the circuit in
which payment was ordered for modification of the repayment order
or schedule of payments. If it appears to the satisfaction of
the circuit court that continued payment of the amount ordered
will impose undue hardship on the person or the person's
dependents, the circuit court may modify the method or amount of
payment.
(5) When a person ordered to pay costs is also placed on
probation or imposition or execution of sentence is suspended,
the magistrate or circuit court may make the repayment of costs
a condition of probation or suspension of sentence.
(6) Where the person ordered to pay costs was represented in the case by a public defender, the clerk of the magistrate
court or the clerk of the circuit court in which payment was
ordered shall notify the executive director of the order. Upon
receipt of the notice, the executive director shall ascertain the
cost to the public defender office of providing such
representation and certify the amount ascertained to the
magistrate clerk or the circuit clerk.
(7)
Where a person has been ordered to pay costs pursuant
to this subsection, the amount paid by the executive director for
counsel fees and defense expenses in a claim or claims in a case,
or the amount certified pursuant to subdivision (6) of this
subsection, or any lesser amount that may be ordered by a
magistrate or circuit court under the provisions of this
subsection, shall constitute a lien against all property of the
person ordered to pay the costs and may be enforced in the same
manner as if the same were a judgment lien. The executive
director is authorized and empowered to enforce the lien in any
manner permitted by law for the enforcement of a
judgment lien,
and any magistrate clerk, circuit clerk, county clerk, sheriff or
other office of this state or any political subdivision shall
provide the executive director such services as may be necessary
to enforce the lien
without charge or fee to the executive
director.
(h) Circuit clerks shall keep a an itemized record of
repaid counsel fees and defense expenses paid pursuant to the
provisions of this article collected pursuant to this section and shall, quarterly, pay the moneys to the state auditor who shall
deposit the funds in the general revenue fund of the state, and
provide a report of the moneys received during the quarter to the
executive director.
(i) The making of an affidavit subject to inquiry under
this section does not in any event give rise to criminal remedies
against the affiant nor occasion any civil action against the
affiant except for the recovery of costs as in any other case
where costs may be recovered and the recovery of the value of
services, if any, provided pursuant to this article. A person
who has made an affidavit required by this article knowing the
contents thereof to be false may be prosecuted for false swearing
as provided by law.
§29-21-17. Private practice of law by public defenders.
(a) No full-time public defender or full-time assistant
public defender may engage in any private practice of law except
as provided in this section.
(b) A board of directors may permit a newly employed
full-time public defender or full-time assistant public defender
to engage in the private practice of law for compensation for the
sole purpose of expeditiously closing and withdrawing from
existing private cases from a prior private practice. In no
event shall any person employed for more than ninety days as a
full-time public defender or full-time assistant public defender
be engaged in any other private practice of law for compensation:
Provided, That until the first day of January, one thousand nine hundred ninety-three, the prohibition against the private
practice of law does not apply to full-time public defenders
employed in Class II, III or IV counties as defined by article
seven, chapter seven of this code.
(c) A board of directors may permit a full-time public
defender or full-time assistant public defender to engage in
private practice for compensation if the defender is acting
pursuant to an appointment made under a court rule or practice of
equal applicability to all attorneys in the jurisdiction and if
the defender remits to the public defender corporation all
compensation received.
(d) A board of directors may permit a full-time public
defender or full-time assistant public defender to engage in
uncompensated private practice of law if the public defender or
assistant public defender is acting:
(1) Pursuant to an appointment made under a court rule or
practice of equal applicability to all attorneys in the
jurisdiction; or
(2) On behalf of a close friend or family member; or
(3) On behalf of a religious, community or charitable group.
(e) Violation of the requirements of this section is
sufficient grounds for immediate summary dismissal regardless of
the conditions of employment established by a corporation's board
of directors.
§29-21-19. Audits.
(a) The accounts of each public defender corporation shall be audited annually as soon as possible after the end of each
state fiscal year. Such audits shall be conducted in accordance
with generally accepted auditing standards by the state tax
commissioner.
(b) The audits shall be conducted at the place or places
where the accounts of the public defender corporation are
normally kept. All books, accounts, financial records, reports,
files, and other papers or property belonging to or in use by the
public defender corporation and necessary to facilitate the
audits shall be made available to the person or persons
conducting the audits; and full facilities for verifying
transactions with the balances and securities held by
depositories, fiscal agents, and custodians shall be afforded to
any such person.
(c) The report of the annual audit shall be filed with the
agency, submitted to the joint committee on government and
finance and shall be available for public inspection during
business hours at the principal office of the public defender
corporation. The report of each such audit shall be maintained
for a period of at least five years at the office of the agency.