H. B. 4684
(By Delegates Staton, Amores, Rowe, Smirl and Thomas)
(Originating in the Committee on the Judiciary)
[February 27, 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 the public defender services;
continuing public defender services; describing duties, powers
and limitations of the executive director and of public
defender services; describing public defender corporations,
the activation of public defender corporations and the
creation of second offices within public defender
corporations; describing the appointment of panel attorneys
and the order of appointment of panel attorneys and public
defender corporations; describing the process by which public
defender corporations may apply for funding; describing public
defender corporation funding applications, legal
representation plans and review; describing public defender
corporation funding, record keeping, submission of proposals
to the executive director; providing for review of operating plans and budgets of public defender corporations; requiring
the preparation of an operating plan; establishing
compensation and expenses for panel attorneys; requiring
certification of the date of submission of claims; requiring
that claims be submitted within one hundred and eighty days of
last date of service; requiring the development and
distribution of an electronic voucher system; requiring the
development and distribution of an abbreviated voucher form;
establishing the submission of abbreviated voucher forms
directly to the executive director; 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; describing the board of directors;
authorizing the executive director to fill a temporarily
vacant board position; 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; deleting
language limiting penalties against affiants pursuant to this
article; 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,
establish a second public defender office in all single-county
circuits which have four or more circuit judges and an activated public defender corporation. The executive director shall
establish two 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 establish second
offices in all circuits in which there is an activated public
defender corporation. In circuits with two public defender
offices, the executive director shall determine how the caseload
shall be divided. In circuits with two public defender offices,
the offices shall be separately administered and operated and may
not be in the same location. In circuits with two offices, the
offices may be governed by the same public defender corporation,
but public defender corporations may not interfere with either
offices professional responsibilities to clients.
(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. 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.
Note: The purpose of this bill is to reform and improve the
public defender services and to continue the agency until July 1,
1999.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.