H.
B.
4379
(By Delegate Staton)
[Introduced February 7, 1994; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact sections two, five, six, eight, nine, thirteen-a, fifteen and seventeen, article twenty-one, chapter twenty-nine of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to public defender services generally; excluding paternity proceedings from inclusion as an eligible proceeding for defender services and adding enhanced sentencing proceedings as an eligible proceeding; excluding part-time employees from certain benefits; removing the qualification that the administrator be a member of the bar; allowing public defender organizations to file periodic reports; removing the requirement that one public defender serve two certain circuits; eliminating requirement that panel attorneys file preference statement; limiting hourly rate for paralegal services; removing allowance for travel expense reimbursements above certain limits for attorneys appointed to cases outside the attorney's circuit; limiting reimbursement for certain transcripts and court reporter expenses; establishing an hourly rate for reimbursement for investigators; designating an extraordinary writ as a separate case; providing for the correction of vouchers; limiting the terms of board members appointed by the governor to four years; and, making the private practice of law by full-time defenders and assistant grounds for dismissal.
Be it enacted by the Legislature of West Virginia:
That sections two, five, six, eight, nine, thirteen-a, fifteen and seventeen, article twenty-one, chapter twenty-nine of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted to read as follows:
ARTICLE 21. PUBLIC DEFENDER SERVICES.
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2. Definitions.
As used in this article, the following words and phrases are hereby defined:
(1) "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) "Eligible proceeding": Criminal charges which may result in incarceration, juvenile proceedings, proceedings to revoke parole or probation if the revocation may result in incarceration, contempts of court, child abuse and neglect proceedings which may result in a termination of parental rights, mental hygiene commitment proceedings, paternity proceedings, extradition proceedings, proceedings brought in aid of an eligible proceeding, including, but not limited to, proceedings to enhance sentences 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) "Legal representation": The provision of any legal services or legal assistance consistent with the purposes and provisions of this article;
(4) "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) "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. Part-time employment does not include benefits such as retirement, health insurance or paid leave time for illness or vacation;
(6) "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) "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) "Public defender office": An office operated by a public defender corporation to provide legal representation under the provisions of this article.
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5. Executive director.
(a) The governor shall appoint, by and with the advice and consent of the Senate, the executive director of public defender services, who shall serve at the will and pleasure of the governor. The executive director shall be a qualified administrator as determined by the governor. and shall be a member of the bar of the supreme court of appeals In addition to the executive director there shall be such other employees as the executive director determines to be necessary. The executive director shall have the authority to promulgate rules, and shall have such other authority and perform such duties as may be required or necessary to effectuate this article. The executive director shall provide supervision and direction to the other agency employees in the performance of their duties.
(b) The executive director's annual salary shall be as determined by the Legislature.
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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 such other grants and contracts as 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 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. This 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 annually periodically report on the billable and nonbillable time of its professional employees, including 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.
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8. Public defender corporations.
(a) In each judicial circuit of the state, there is hereby created a "public defender corporation" of the circuit.
Provided,
That one such public defender corporation shall serve both the twenty-third and thirty-first judicial circuits The purpose of such 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 multijudge 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 so certifying in the order in which he or she deems most efficient and cost effective.
(c) Public defender corporations may apply in writing to the executive director for permission to merge to form multicircuit or regional public defender corporations. Applications for mergers shall be subject to the review procedures set forth in section eleven of this article.
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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.
(b) 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. A prospective panel attorney shall inform the court in writing, on forms provided by the executive director, of a desire to accept appointments generally, or of the specific types of cases in which he or she will accept appointments. The attorney shall also indicate whether or not he or she will accept appointments in adjoining circuits and, if so, in which circuits. 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.
(c) (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 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. In any circuit, when there is no public defender, or assistant public defender, local panel attorney or regional panel attorney 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.
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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. 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 such lesser sum the court considers appropriate. Notwithstanding any other provision of this section, public defender services may pay by direct bill, prior to the completion of the case, litigation expenses incurred by attorneys appointed under this article.
Provided,
That 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. That The amounts of any fees or expenses paid to the panel attorney on such an interim basis, when combined with any such 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.
(b) 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 attorneys' work performed out of court, compensation shall be at the rate of forty-five dollars per hour. Paralegals' compensation shall be at the rate of 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.
(2) For attorneys' work performed in court, compensation shall be at the rate of sixty-five dollars per hour. No paralegal's compensation is be allowed for in-court work. In-court work includes, but is not limited to, all time spent awaiting hearing or trial if the presence of the attorney is required. at the time
(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, such amount as the court may approve; for all other eligible proceedings, three thousand dollars.
(c) 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, gives advance approval to incur expenses for a larger sum. That when an attorney is appointed to a case outside of the circuit where his or her principal office is located, travel expenses incurred for travel as the result of providing legal representation in the case shall be reimbursed not withstanding the fifteen hundred dollar limit provided by this subsection: That notwithstanding any other provision of this article, these travel expenses incurred by an attorney appointed to a case outside of his or her circuit as aforesaid shall be reimbursed by public defender services prior to the completion of the case upon the request of the panel attorney on such forms approved by the executive director
Expense vouchers shall specifically set forth the nature, amount and purpose of expenses incurred and shall provide such receipts, invoices or other documentation required by the executive director and the state auditor. Expenses for production of transcripts requested by defense counsel, exclusive of transcripts for appeals or habeas corpus proceedings, are limited to the cost per original page set forth in section four, article seven, chapter fifty-one of this code. The costs of copies may not be reimbursed unless those copies are made by the attorney, in which case costs are limited to twenty-five cents per page.
No hourly court reporters' fees or fees for time expended either at the proceeding recorded or traveling to or from the proceeding may be paid, except reimbursement for actual and necessary expenses may be allowed according to the rules of the travel management office of the department of administration. These rules govern reimbursement of travel expenses for all service providers, including attorneys, court reporters, expert witnesses, investigators and others. The hourly rate for investigators for any work performed is twenty-five dollars per hour.
(d) For purposes of compensation under this section, an appeal or extraordinary writ to the supreme court of appeals from a final order of the circuit court shall be considered a separate case.
(e) 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 such fact and sufficiently identify the several charges so as to enable the court to avoid a duplication of compensation for services rendered. The voucher shall indicate whether the services were rendered by a local panel attorney, a regional panel attorney, or such other private attorney as may have been appointed. The executive director shall refuse to requisition payment for any voucher which is not in conformity with the record keeping, 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.
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15. Public defender corporations
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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 multicounty circuits, and in the case of multicircuit 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.
(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 section one, 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.
(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; and
(3) Renewal of the employment contract of the public defender on an annual basis except where such renewal is denied for cause:
Provided,
That the board of directors shall have the power at any time to remove the public defender 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 such 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.
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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. Violation of the provision of this section is grounds for immediate dismissal regardless of the conditions of employment established by a corporation's board of directors.
(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.
NOTE: The purpose of this bill is to make technical changes to the law governing the administration of the public defender program. The bill excludes paternity proceedings from inclusion as an eligible proceeding for defender services and it adds enhanced sentencing proceedings as an eligible proceeding. The bill excludes part-time employees from certain benefits, and it removes the qualification that the administrator be a member of the bar. The bill streamlines the reporting and voucher submission process, and it establishes hourly rates of reimbursement for paralegal and investigator services. The bill also limits expense reimbursements for travel, transcripts and court reporter services. It limits the terms of board members appointed by the governor to four years and it makes the private practice of law by full-time defenders and assistants grounds for dismissal.
Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.
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