SB521 HJUD AM
The Committee on the Judiciary moved to amend the bill on page one, by striking out everything after the enacting clause, and inserting in lieu thereof the following:
That §29-21-6 and §29-21-13a of the Code of West Virginia,1931, as amended, be amended and reenacted, all to read as follows:
§29-21-6. Powers, duties and limitations.
(a) Consistent with the provisions of this article, the agency 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 any other grants and contracts that are necessary to carry out the purposes and provisions of this article.
(b) The agency 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 shall establish and the executive director or his or her designee shall operate a criminal law research center as provided 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 related 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 or her designee 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 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 accounting and auditing 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 report monthly on the billable and nonbillable time of its professional employees, including time used in administration of the respective offices, so as to compare the time to similar time expended in nonpublic law offices for similar activities. The accounting and auditing division shall provide to the executive director assistance in the fiscal administration of all of the agency's divisions. This assistance shall include, but not be limited to, budget preparation and statistical analysis. The agency may reduce or reject vouchers or requests for payment submitted pursuant to section thirteen-a of this article found not to be in compliance with the provisions of this article.
(e) The agency shall establish and the executive director or his or her designee 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 his or her designee 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 the 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 use the resources of the appellate division, the executive director may restrict the provision of appellate representation to certain types of cases. The executive director may select and employ staff attorneys to perform the duties prescribed by this subsection. The appellate division shall maintain records of representation of eligible clients for record purposes only.
(f) If the executive director, with the approval of the Indigent Defense Commission and the Secretary of Administration, determines that the purposes of this article can be furthered and costs reduced by the execution of a contract with a provider of legal services in discrete or specialized areas of the law other than criminal defense to provide legal representation to eligible clients, the execution of the contract is authorized and is exempt from the provisions of, and procedures adopted pursuant to, article three, chapter five-a of this code: Provided, That the executive director may not contract for such legal services in more than two judicial circuits. Contracts based upon the provisions of this subsection shall comply with the American Bar Association’s Standards for Criminal Justice, Providing Defense Services, Third Edition. The payment of the contract amount is authorized from the funds appropriated for the payment of appointed counsel fees.
§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
and which records are to be maintained
contemporaneously with the performance of the legal services and in such a
manner as to enable the attorney to determine for any day the periods of time
expended on behalf of any eligible client and the total time expended on that
day on behalf of all eligible clients: Provided, That in no event shall
panel attorneys be required to maintain or submit the actual start and finish
times for times expended.
upon Upon completion of
each case, exclusive of appeal, the panel attorney 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. The executive director shall establish guidelines for
the submission of vouchers and claims for fees and expense reimbursements under
this section. Claims submitted more than ninety calendar days after the last
date of service shall be rejected, unless for good cause, the appointing court
authorizes in writing an extension: Provided, That claims where the last
date of service occurred prior to July 1, 2008, shall be rejected unless
submitted prior to January 1, 2009.
(b) 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.
(c) If Public Defender Services reduces the amount of compensation claimed or reimbursement requested, the attorney submitting the voucher shall be notified by the Public Defender Services, by mail or electronically, of the reduction and the reasons therefor. The attorney may:
(1) Agree with the reduction and certify his or her agreement, by mail or electronically, to Public Defender Services which shall then proceed to process payment; or
(2) Disagree with the reduction and request payment of the reduced amount while preserving the ability to contest the reduction. As to the disagreed reduction, the following procedure shall be followed:
(A) An attorney proceeding pursuant to this subdivision shall inform Public Defender Services of a decision within fifteen days of receiving notice of the reduction. The attorney shall then submit records and certification from the appointing court that the services or expenses reflected in the amount reduced were performed or incurred and were reasonable and necessary, along with any additional information the attorney desires in support of full payment.
(B) The executive director shall then make a final agency determination regarding the amount reduced within fifteen days of receipt of the submitted records and certification from the attorney.
(C) If the executive director still desires to make the reduction, the executive director shall request review of his or her decision by motion to the appointing court filed within thirty days of the final agency determination, otherwise the attorney shall be paid the amount of the reduction.
(D) After a hearing providing the attorney and Public Defender Services an opportunity to be heard, the appointing court shall have final authority to resolve the issue of payment.
(E) Notwithstanding any provisions of this code to the contrary, the executive director may employ in-house counsel to represent Public Defender Services in hearings held pursuant to this subsection.
(b) (d) 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) (e) 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 executive director, in his or her discretion, may authorize periodic
payments where ongoing representation extends beyond six months in duration.
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) (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 $45 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 $20 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.
(2) For attorney's work performed in court, compensation shall be at the rate of $65 per hour. No compensation for paralegal's work performed in court shall be allowed. In-court work includes, but is not limited to, all time spent awaiting hearing or trial before a judge, magistrate, special master or other judicial officer.
(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, $3,000 unless the court, for good cause shown, approves payment of a larger sum.
(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 $1,500 unless the
court, for good cause shown, approves reimbursement of a larger sum.
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 and per copy page as set forth in section four, article seven, chapter fifty-one of this code.
(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 trial, where such hearing or 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) of this paragraph is limited to $25. Where a transcript of a proceeding is produced, there shall be no reimbursement for the expense of any appearance fee.
(iii) 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 trials is limited to $1 per page.
(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 $30 per hour for work performed by an investigator.
(f) (h) For purposes of compensation under this section, an
appeal from magistrate court to circuit court, an appeal from a final order of
the circuit court or a 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 or the voucher guidelines established issued pursuant to
subsection (a) of this section and in such circumstance shall return the voucher
to the court or to the service provider for further review or correction. (h) (j) Vouchers submitted under this section after July 1,
2008, shall be reimbursed within ninety days of receipt. Reimbursements after
ninety days shall bear interest from the ninety-first day at the legal rate in
effect for the calendar year in which payment is due. (i) (k) Vouchers submitted for fees and expenses involving
child abuse and neglect cases shall be processed for payment before processing
vouchers submitted for all other cases.
(l) Panel attorneys who expend at least 1200 hours per fiscal year on court appointed cases in which vouchers are submitted to Public Defender Services for payment pursuant to this article, as certified by the executive director based upon the prior fiscal year, are eligible to enroll for insurance coverage under the Public Employees Insurance Act in article sixteen, chapter five of this code The Public Employees Insurance Agency, in consultation with the executive director of Public Defender Services, shall propose rules for legislative approval in accordance with article three, chapter twenty-nine-a of this code in order to determine the requirements for court appointed attorneys to enroll in the Public Employees Insurance Agency plans. The provisions of this subsection shall not be effective until benefit year 2019 -2020 that begins on July 1, 2019.