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SB521 SUB2 Senate Bill 521 History

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Key: Green = existing Code. Red = new code to be enacted

WEST virginia legislature

2017 regular session

Committee Substitute

for

Committee Substitute

for

Senate Bill 521

By Senator Trump

[Originating in the Committee on Finance; reported on March 25, 2017]

 

 

A BILL to amend and reenact §29-21-2, §29-21-6, §29-21-8, §29-21-9 and §29-21-13a of the Code of West Virginia, 1931, as amended, all relating generally to Public Defender Services; transferring initial authority to review, approve, reduce or reject panel attorney vouchers from circuit courts to Public Defender Services; providing for resubmission of vouchers previously reduced or rejected; establishing protocol for handling of rejected or reduced vouchers; maintaining final authority over payment vouchers with the appointing courts; authorizing the Executive Director of Public Defender Services, with approval of the Indigent Defense Commission, to establish conflict public defender corporations and establishing criteria therefor; authorizing the Executive Director of Public Defender Services, with approval of the Indigent Defense Commission, to contract for legal services or specialized legal services in any circuit; revising order of preference for the appointment of attorneys; and requiring panel attorneys to maintain time-keeping records on a daily basis.

Be it enacted by the Legislature of West Virginia:


That §29-21-2, §29-21-6, §29-21-8, §29-21-9 and §29-21-13a of the Code of West Virginia, 1931, as amended, be amended and reenacted, all to read as follows:

ARTICLE 21. PUBLIC DEFENDER SERVICES.


§29-21-2. Definitions.

As used in this article, the following words and phrases are hereby defined:

(1) “Conflict public defender corporation” – A public defender corporation that is created and operated to provide legal representation to eligible clients who cannot be represented by an existing public defender corporation.  A conflict public defender corporation is to be considered a public defender corporation for all purposes under this article except with respect to the manner and order in which cases are to be appointed to the conflict public defender corporation.

(1) (2) “Eligible client” – Any person who meets the requirements established by this article to receive publicly funded legal representation in an eligible proceeding as defined herein;

(2) (3) “Eligible proceeding” – Criminal charges which may result in incarceration; juvenile proceedings; proceedings to revoke parole or probation if the revocation may result in incarceration; contempt of court; child abuse and neglect proceedings which may result in a termination of parental rights; mental hygiene commitment proceedings; extradition proceedings; proceedings which are ancillary to an eligible proceeding, including, but not limited to, proceedings to enhance sentences brought pursuant to sections eighteen and nineteen, article eleven, chapter sixty-one of this code, forfeiture proceedings brought pursuant to article seven, chapter sixty-a of this code, and proceedings brought to obtain extraordinary remedies; and appeals from or post-conviction challenges to the final judgment in an eligible proceeding. Legal representation provided pursuant to the provisions of this article is limited to the court system of the State of West Virginia, but does not include representation in municipal courts unless the accused is at risk of incarceration;

(3) (4) “Legal representation” – The provision of any legal services or legal assistance as counsel or guardian ad litem consistent with the purposes and provisions of this article;

(4) (5) “Private practice of law” – The provision of legal representation by a public defender or assistant public defender to a client who is not entitled to receive legal representation under the provisions of this article, but does not include, among other activities, teaching;

(5) (6) “Public defender” – The staff attorney employed on a full-time basis by a public defender corporation who, in addition to providing direct representation to eligible clients, has administrative responsibility for the operation of the public defender corporation. The public defender may be a part-time employee if the board of directors of the public defender corporation finds efficient operation of the corporation does not require a full-time attorney and the executive director approves such part-time employment;

(6) (7) “Assistant public defender” – A staff attorney providing direct representation to eligible clients whose salary and status as a full-time or part-time employee are fixed by the board of directors of the public defender corporation;

(7) (8) “Public defender corporation” – A corporation created under section eight of this article for the sole purpose of providing legal representation to eligible clients; and

(8) (9) “Public defender office” – An office operated by a public defender corporation to provide legal representation under the provisions of this article.


§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.


§29-21-8. Public defender corporations; establishment thereof.

(a) (1) In each judicial circuit of the state, there is hereby created a public defender corporation of the circuit: Provided, That the executive director, with the approval of the Indigent Defense Commission, may authorize the creation, merger or dissolution of a public defender corporation in a judicial circuit where the creation, merger or dissolution of such a public defender corporation would improve the quality of legal representation, assure the prudent and resourceful expenditure of state funds and further the purposes of this article: Provided, however, That prior to the creation, merger or dissolution of a public defender corporation in accordance with this subsection, the commission shall provide a report to the Legislature pursuant to subsection (g), section three-b of this article for approval of the creation, merger or dissolution of any public defender corporation.

(2) The purpose of these public defender corporations is to provide legal representation in the respective circuits in accordance with the provisions of this article. A public defender corporation may employ full-time attorneys and employ part-time attorneys in whatever combination that the public defender corporation deems most cost effective.

(b) If the executive director, with the approval of the Indigent Defense Commission, determines there is a need to activate, merge or dissolve a corporation in a judicial circuit of the state, pursuant to subsection (a) of this section, the Indigent Defense Commission shall first consult with and give substantial consideration to the recommendation of the judge of a single-judge circuit or the chief judge of a multijudge circuit.

(c) 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 creation of a conflict public defender corporation to serve the sixth or thirteenth judicial circuits, or both the creation and operation of a conflict public defender corporation is authorized; Provided, That such conflict public defender corporation may only represent defendants in the sixth or thirteenth judicial circuit or pursuant to the provisions of section nine of this article.

(d) 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. 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.


§29-21-9. 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 are 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 may 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: Provided, That in family court contempt cases, the family court judge shall appoint an attorney-at-law when required, in the following order of preference:

(1) In circuits where a public defender office is in operation, the judge shall appoint the public defender office unless an 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;

(2) If the public defender office is not available for appointment, the court shall appoint one or more panel attorneys from the local panel the conflict public defender corporation if one has been created;

(3) If neither the public defender office nor a conflict public defender corporation, if created, is available, the court shall appoint one or more panel attorneys from the local panel;

(3) (4) If there is no local panel attorney available, the judge shall appoint one or more panel attorneys from the regional panel;

(4) (5) If there is no regional panel attorney available, the judge may appoint a public defender office or a conflict public defender corporation pursuant to the provisions of subsection (c), section eight of this article from an adjoining circuit if such the public defender office or conflict public defender corporation agrees to the appointment;

(5) (6) If the adjoining public defender office or conflict public defender corporation does not accept the appointment, the judge may appoint a panel attorney from an adjoining circuit; or

(6) (7) If a panel attorney from an adjoining circuit is unavailable, the judge may appoint a panel attorney from any circuit.

(c) 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: Provided, That any time a court, in appointing counsel pursuant to the provisions of this section, alters the order of appointment as set forth herein, the order of appointment shall contain the court’s reasons for doing so.


§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 which records are to be maintained contemporaneously with the performance of the legal services in a form promulgated by the executive director designed 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. Upon completion of each case, exclusive of appeal, panel attorneys shall submit to the appointing court Public Defender Services a voucher for services. Claims for fees and expense reimbursements shall be submitted to the appointing court Public Defender Services 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 Public Defender Services 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 Public Defender Services 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 A voucher found to be correct shall be processed and payment promptly directed and in no event shall payment of such voucher be directed more than sixty days after receipt of the voucher. If Public Defender Services rejects a voucher, the attorney submitting the voucher shall be promptly notified electronically of the rejection. The attorney may resubmit the voucher accompanied by copies of his or her records supporting the voucher and certification from the appointing court that the services or expenses were performed or incurred, and were reasonable and necessary. The executive director shall then make a final agency decision regarding the payment of the voucher. If the executive director declines to pay the voucher, the attorney may request review of the final agency decision by the appointing court by motion to the appointed court filed within thirty days of the final agency decision. 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.

(c) If Public Defender Services reduces the amount of compensation claimed or reimbursement requested, the attorney submitting the voucher shall be notified electronically of the reduction and the reasons therefor. The attorney may:

1) Agree with the reduction and certify his or her agreement 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. An attorney proceeding pursuant to this paragraph shall inform Public Defender Services of a decision by electronic means within thirty days of receiving notice of the reduction. The attorney may 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. The executive director shall then make a final agency determination regarding the amount reduced within thirty days of receipt of the submitted records and certification. The attorney may request review of the final agency decision by the appointing court by motion to the appointing court filed within thirty days of notice of the final agency decision. 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. 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 section.

(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 may 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 the 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 may be no reimbursement for the expense of any appearance fee.

(iii) Except for the appearance fees provided in this paragraph, there shall may 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 Public Defender Services 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.

 

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