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TCL > November 1997 Issue > Chief Justice Directive 97-01

November 1997       Vol. 26, No. 11       Page  133
From the Courts
Court Business

Chief Justice Directive 97-01

CHIEF JUSTICE DIRECTIVE 97-01:

Supreme Court of Colorado

Office of the Chief Justice

Appointment of State-Funded Counsel in
Criminal and Juvenile Delinquency Cases

I. Statutory Authority

A. The federal and state constitutions provide that an accused person has the right to be represented by counsel in criminal prosecutions. This constitutional right has been interpreted to mean that counsel will be provided at state expense for indigent persons in all cases in which actual incarceration is a likely penalty, unless incarceration is specifically waived as a sentencing option pursuant to Section 16-5-501, 6 C.R.S. (1997), or there is a waiver of the right to counsel at the advisement.

B. State funds are appropriated to the Office of the Public Defender to provide for the representation of indigent persons in criminal and juvenile delinquency cases pursuant to section 21-1-103, 6 C.R.S. (1997).

C. State funds are appropriated to the Office of Alternate Defense Counsel to provide for the representation of indigent persons in criminal and delinquency cases in cases in which the Public Defender declares a conflict of interest or the court finds the person to be partially indigent pursuant to Section 21-2-103, 6 C.R.S. (1997).

D. Section 19-2-706(2), 6 C.R.S. (1997) provides for the representation of juveniles in delinquency cases in which (1) the parent or legal guardian refuses to retain counsel for the juvenile, or (2) the court finds such representation is necessary to protect the interest of the juvenile or other parties involved in the case. When such an appointment is necessary and the juvenile does not qualify for representation by the Public Defender or the Office of Alternate Defense Counsel, the Judicial Department will pay for the costs of counsel and investigator services as no funds are specifically appropriated for this purpose.

II. Indigency Determination

A. A defendant in a criminal case or a juvenile's parent or legal guardian in a delinquency case must be indigent to be represented by the Public Defender or by the Office of Alternate Defense Counsel, in cases of Public Defender conflict, at state expense. Such person(s) must also be indigent, partially indigent, or otherwise qualify for court-appointed counsel as described in Section III. for the court to authorize the payment of certain costs/expenses. Any defendant in a criminal case, or the juvenile's parent, guardian, or legal custodian in a delinquency case, requesting court-appointed representation on the basis of indigency or partial indigency must complete Form JDF 208, Application for Court-Appointed Counsel or Guardian ad Litem, signed under oath, and either pay the application fee or have the fee waived pursuant to Section 21-1-103(3), 6 C.R.S. (1997), before indigency may be considered.

B. An indigent person is one whose financial circumstances fall within the fiscal standards established by the Supreme Court (Attachments A, B, and C).

C. Pursuant to 21-1-103 (3), 6 C.R.S. (1997), the determination of indigency shall be made by the Public Defender subject to review by the court. Therefore, all persons seeking court-appointed representation shall complete form JDF 208 and shall first apply with the Office of the Public Defender. The Public Defender will determine if the defendant, or a juvenile's parent or legal guardian in a delinquency case, is eligible for representation in accordance with the fiscal standards.

D. If the Public Defender finds the person to be ineligible and denies representation, the court shall determine the following: (1) whether the person is partially indigent and the Office of Alternate Defense Counsel should be appointed as provided in paragraph III.B.2. herein; (2) whether the court disagrees with the Public Defender's evaluation and determination, and the Public Defender should be appointed; or (3) whether the person is not eligible for state-paid representation. The court may use the judicial district's collection investigator(s) to provide a recommendation to the court relative to the above determinations.

III. Guidelines for Appointment of Counsel and Investigators

A. Public Defender Appointments.

1. Appointments on the Basis of Indigency: To be eligible for representation by the Public Defender, a defendant, or a juvenile's parent or legal guardian in a delinquency case, must be indigent, as defined above and determined by the Public Defender, subject to review by the court. If such person is indigent, the court shall appoint the Public Defender, except as otherwise provided in paragraph III.B.

2. Appointments to Assist in Motions Under Rule 35 of the Colorado Rules of Criminal Procedure: An indigent defendant may be entitled to conflict-free counsel to assist in motions under Rule 35 if it is determined that there is arguable merit to the proceeding. If another attorney represents the defendant and withdraws, the Public Defender may be appointed if the defendant is indigent and there is no conflict with such representation.

a) New counsel may be appointed if the motion includes an allegation of ineffective assistance of counsel and the court determines that there is arguable merit to the allegation. The attorney against whom the allegation is made shall withdraw, and the court shall appoint the Public Defender if the defendant is indigent and there is no conflict with such representation.

B. Office of Alternate Defense Counsel Appointments. The Office of Alternate Defense Counsel shall be appointed under the following circumstances:

1. Conflict-of-Interest Appointments: The Public Defender shall file a motion or otherwise notify the court to withdraw in all cases in which a conflict of interest exists. The court shall appoint the Office of Alternate Defense Counsel to represent indigent persons in cases in which the court determines that the Public Defender has a conflict of interest and removes the Public Defender from the case. The court shall promptly notify the designee of the Office of Alternate Defense Counsel of such appointments.

2. Partially-Indigent Appointments: If the Public Defender has determined the person is not eligible for representation, the court may determine that the defendant, or a juvenile's parent or legal guardian in a delinquency case, is partially indigent. The court shall enter a written order stating this finding and shall appoint the Office of Alternate Defense Counsel. The court shall enter a written order requiring the person to reimburse the state for all or part of the expense of legal services and other costs pursuant to 21-2-103, 6 C.R.S. (1997).

3. Appointments to Represent a Juvenile When a Family Member is a Victim: The court may appoint counsel in a juvenile delinquency case if the parent or guardian refuses to retain counsel, pursuant to 19-2-706(2)(b), 6 C.R.S. (1997). If such refusal is for good cause due to the fact that a family member is a victim in the case and the person is not eligible for representation by the Public Defender, the court shall enter a written order stating this finding and shall appoint the Office of Alternate Defense Counsel.

4. Appointments to Assist in Motions Under Rule 35 of the Colorado Rules of Criminal Procedure: An indigent or partially indigent defendant may be entitled to conflict-free counsel to assist in motions under Rule 35 if it is determined that there is arguable merit to the proceeding. If another attorney represents the defendant and withdraws, the Office of Alternate Defense Counsel may be appointed if the defendant qualifies for such representation as stated above.

a) New counsel may be appointed if the motion includes an allegation of ineffective assistance of counsel and the court determines that there is arguable merit to the allegation. The attorney against whom the allegation is made shall withdraw, and the court shall appoint the Office of Alternate Defense Counsel if the defendant qualifies for such representation as described earlier in this Section III.B.

5. Attorney Appointments: The Office of Alternate Defense Counsel shall maintain a list of qualified attorneys from which appointments will be made as described above. Upon appointment of the Office of Alternate Defense Counsel, the clerk shall notify the Alternate Defense Counsel's designee. No more than one attorney may be appointed as counsel for an indigent or partially indigent person except as provided below.

a) It is recognized that in specific exceptional circumstances a second attorney may be necessary. Accordingly, upon specific written request by counsel for appointment of an additional attorney to assist in the defense of an indigent or partially indigent person, the Office of Alternate Defense Counsel may approve appointment of an additional attorney for good cause shown. Such requests should be made in writing and directed to the Office of Alternate Defense Counsel.

6. Investigator Appointments: The Office of Alternate Defense Counsel shall maintain a list of investigators from which appointments will be made. The attorney should contact the Office of Alternate Defense Counsel to request appointment of an investigator.

C. Judicial Department Appointments. Private counsel paid by the Judicial Department will be appointed under the following circumstances.

1. Counsel in Delinquency Cases: The court may appoint counsel in a delinquency case if it deems representation by counsel is necessary to protect the interest of the juvenile or of other parties or if the parent or guardian refuses to retain counsel, pursuant to 19-2-706(2), 6 C.R.S. (1997). If an appointment of counsel is necessary for these reasons and the juvenile does not qualify for representation by the Public Defender or the Office of Alternate Defense Counsel as described above, the court may appoint private counsel which will be paid by the Judicial Department. The court shall order the parent or guardian to reimburse the court for the costs of counsel unless the court finds there is good cause for the refusal to retain counsel.

2. Appointments of Advisory Counsel: There is no constitutional right to the appointment of advisory counsel to assist a pro se defendant. However, pursuant to case law, the court may appoint private advisory counsel either (1) at the request of an indigent pro se defendant, or (2) over the objections of an indigent pro se defendant to ensure orderly proceedings and to provide assistance to the defendant. If the court appoints private advisory counsel for an indigent pro se defendant in a criminal case, the Judicial Department will pay for counsel, as no funds are specifically appropriated for this purpose and there is no statutory authority for the Public Defender or the Alternate Defense Counsel to advise pro se defendants.

3. Appointments of Contempt Counsel: Private counsel may be appointed for an indigent person facing contempt charges in criminal or delinquency cases when punitive sanctions may be imposed, in accordance with Rule 107(d) of the Colorado Rules of Civil Procedure. If the court appoints private counsel to represent an indigent party for contempt charges in a criminal or delinquency case, the Judicial Department will pay for counsel, as no funds are specifically appropriated for this purpose and there is no statutory authority for the Public Defender or the Alternate Defense Counsel to represent clients for the sole purpose of addressing contempt charges. Costs and reasonable attorney's fees in connection with the contempt proceeding may be assessed in the discretion of the court.

4. Attorney Appointments: The Clerk of Court or the District Administrator shall maintain a list of qualified private attorneys from which appointments will be made for cases in which neither the Public Defender nor the Alternate Defense Counsel can be appointed. Upon appointment, the Clerk of Court or the District Administrator shall provide the attorney with a written order of appointment stating the reason for appointment and date of the appointment.

5. Investigator Appointments: If a private appointed attorney requires the services of an investigator, he or she shall submit a motion to the court requesting authority to hire an investigator. The court shall authorize such appointments as the judge or magistrate deems necessary, and shall issue an order authorizing the amount of investigator fees and expenses that may be incurred, not to exceed the maximum fees set forth in Attachment E. The Judicial Department shall pay for investigator services under this Section III.C. In addition, if a person qualifies for representation by the Public Defender or the Alternate Defense Counsel, but the person receives counsel from another source, such as pro bono counsel or counsel paid by other parties, the court may authorize the services of an investigator at state expense as the judge or magistrate deems necessary, in accordance with the rates and maximum fees established in Attachment E. The Judicial Department will pay for investigator services in these instances, as no funds are specifically appropriated for this purpose and there is no statutory authority for the Public Defender or the Alternate Defense Counsel to provide and pay for these services.

IV. Appointment of Counsel for Witnesses

A. Grand Jury Witnesses. A witness subpoenaed to appear and testify before a grand jury is entitled to assistance of counsel pursuant to Section 16-5-204, 6 C.R.S. (1997). For any person financially unable to obtain adequate assistance, counsel may be appointed in the same manner as if that person were eligible for appointed counsel. Pursuant to case law, no attorney who provides counsel in the grand jury room may represent more than one witness in a single investigation without grand jury permission. If the court appoints counsel for an indigent or partially indigent witness before a grand jury, the Judicial Department will pay for counsel, as no funds are specifically appropriated for this purpose and there is no statutory authority for the Public Defender or the Alternate Defense Counsel to represent grand jury witnesses.

B. Victims and Other Witnesses. An indigent witness subpoenaed to appear and testify in a court hearing may be appointed counsel if the witness requests counsel and the judge determines the appointment of counsel is necessary to assist the witness in asserting his or her privilege against self-incrimination. If the court appoints counsel for an indigent witness for this purpose, the Judicial Department will pay for counsel, as no funds are specifically appropriated for this purpose and there is no statutory authority for the Public Defender or the Alternate Defense Counsel to represent a witness.

V. Guidelines for Payment

A. Public Defender.

1. Court Costs: Costs incurred by the Public Defender shall be billed to the appointing court and, if approved, paid by the court. Court costs include such items as: expert and standard witness fees and expenses, service of process, out-of-state investigation travel, mental health examinations, transcripts, and discovery costs. Payment of all court costs shall be in accordance with applicable statutes, Chief Justice Directives, and other policies and procedures of the Judicial Department, including Fiscal Procedure, Chapter 22, "Procedure for Processing Court Cost Bills."

B. Office of Alternate Defense Counsel.

1. Claims for Payment of Fees: Claims for payment of counsel and investigator fees and expenses shall be filed with the Office of Alternate Defense Counsel on Form ADC 97-02. All forms must be in compliance with the Procedures for Payment (Attachment D). All requests for payment shall be reviewed by the Office of Alternate Defense Counsel to ensure compliance with all regulations before payment will be issued. All incomplete claims will be returned to the attorney or investigator with instructions regarding the additional information needed to process the payment.

2. Hourly Rate and Maximum Total Fee:

a) The Office of Alternate Defense Counsel shall contract where feasible to provide representation in conflict-of-interest and partially-indigent appointments, without prior approval of the court, for the provision of services described in 21-2-103(1), 6 C.R.S. (1997). Such contract shall set forth the terms and conditions of payment of fees and costs.

b) When a contract is not feasible, appointments on an hourly basis will be made. A schedule of hourly rates for state-funded counsel and investigators is attached as Attachment E. No payment shall be authorized or made for hourly rates in excess of the scheduled rate unless authorized by the court. The maximum total fee, exclusive of allowable incidental expenses, which may be made to court-appointed counsel is established in Attachment E. The maximum fee shall be based on the original most serious charge arising out of a single criminal episode.

c. An attorney may use a paralegal/legal assistant when practical. A paralegal/legal assistant should be used when it is more cost-efficient for the attorney to use an assistant, i.e., for tasks such as drafting routine orders. Time spent on administrative tasks, i.e., copying, typing, filing, or preparing payment orders, will not be paid. Paralegal/legal assistant time should be clearly itemized on all Requests for Payment.

3. Expenses: State-funded counsel and investigators are entitled to reimbursement for reasonable out-of-pocket expenses incurred on behalf of their clients. Reimbursable expenses include travel, long-distance telephone calls, and photocopies.

Alternate Defense Counsel attorneys and investigators should submit an itemized request for reimbursement on Form ADC 97-02 to the Office of the Alternate Defense Counsel in accordance with the Procedures for Payment set forth in Attachment D.

4. Court Costs: Costs incurred by Alternate Defense Counsel shall be billed to the appointing court and, if approved, paid by the court. Court costs include such items as: expert and standard witness fees and expenses, service of process, out-of-state investigation travel, mental health examinations, transcripts, and discovery costs. Payment of all court costs shall be in accordance with applicable statutes, Chief Justice Directives, and other policies and procedures of the Judicial Department, including Fiscal Procedure, Chapter 22, "Procedure for Processing Court Cost Bills."

C. Court-Appointed Counsel and Investigators Paid by the Judicial Department.

1. Fees and Expenses: Appointments may be made under contracts developed by the Judicial Department or on an hourly fee basis. A schedule of hourly rates and maximum total fees for state-funded counsel and investigators is attached as Attachment E. Claims for payment shall be filed with the District Administrator in the respective judicial district on the Order for Payment of Fees, JDF 207. All orders for payment must be in compliance with the Court-Appointed Counsel Procedures for Reimbursement of Fees and Expenses (Attachment F) and shall follow the Guidelines for Payment of Court-Appointed Counsel and Investigators Paid by the Judicial Department for Itemized Fees and Expenses on an Hourly Basis (Attachment G). All requests for payment shall be reviewed by the district administrator or designee and the judge or magistrate, to ensure that all charges are appropriate and in compliance, before payment will be issued. The Office of the State Court Administrator may review, verify, and revise, when appropriate, such orders for payment. All incomplete claims will be returned to the attorney or investigator with instructions regarding the additional information needed to process the payment.

2. Court Costs: Costs incurred by counsel shall be billed to the appointing court and, if approved, paid by the court. Court costs include such items as: expert and standard witness fees and expenses, service of process, out-of-state investigation travel, courtroom interpreters, mental health examinations, transcripts, and discovery costs. Payment of all court costs shall be in accordance with applicable statutes, Chief Justice Directives, and other policies and procedures of the Judicial Department, including Fiscal Procedure, Chapter 22, "Procedure for Processing Court Cost Bills."

VI. Appeals

A. The court or the Public Defender shall reassess the indigency status of a defendant who requests court-appointed counsel, as described in Section II., for purposes of appeal.

B. When an indigent person has state-funded private counsel for the trial of a criminal or delinquency case, the Public Defender shall be appointed to represent the defendant on appeal unless the court determines that the Public Defender has a conflict of interest. If the court so determines, it shall set forth in a written order the reason for the conflict of interest and the court shall appoint the Office of Alternate Defense Counsel to represent the defendant.

C. The court shall appoint the Office of Alternate Defense Counsel to represent partially indigent defendants on appeal and shall set forth in a written order the reason for such appointment.

D. No more than one private attorney may be appointed as counsel for an indigent or partially indigent person for appeal of a criminal or delinquency case without prior written approval from the Office of Alternate Defense Counsel.

E. Requests for payment should be submitted to the Office of Alternate Defense Counsel on Form ADC 97-02 and must contain a copy of the court order appointing the Office of Alternate Defense Counsel to represent the defendant on appeal.

VII . Reimbursement to the State

The court shall review the person's indigency status at the time of sentencing or case disposition. If the court determines, at any time after the appointment of state-funded counsel, that the person has the ability to pay all or a part of the costs for representation or other expenses/costs, the court shall enter a written order that the person reimburse all or a part of said costs to the registry of the court and shall notify the judicial district's collection investigator or the controller, who shall institute proceedings pursuant to Section 24-30-202.4, 7 C.R.S. (1997) as necessary to recover such fees and costs [see 21-1-106, 6 C.R.S. (1997) and 21-2-106, 6 C.R.S. (1997)]. The court should notify the defendant at the time of sentencing that attorney fees and expenses and other costs have been assessed in an amount to be determined once all bills have been submitted. If the defendant is placed on probation, the court may require payment for the costs of representation as one of the conditions of probation.

If the court appoints counsel for a juvenile in a delinquency case because of the refusal of the parent, guardian, or other legal custodian to retain counsel for the juvenile, the court shall order the responsible party (unless the county department of social services or the Department of Human Services is the responsible party) to reimburse the court for the costs of counsel unless the court finds there is good cause for the refusal to retain counsel pursuant to Section 19-2-706(2)(b), 6 C.R.S. (1997).

Costs for representation provided to indigent persons may be assessed at the fixed hourly rate for state-funded private counsel, at the state-funded counsel contract rate, or at the hourly cost of providing legal representation by the Public Defender for the number of hours reported by counsel to the court. Other costs incurred for the purposes of prosecution of the case may be assessed, including, for example, costs for transcripts, witness fees and expenses, language interpreter fees, and costs for service of process. Costs incurred for services required under the Americans with Disabilities Act, such as hearing interpreter fees, may not be assessed.

CJD 89-3 is repealed and this CJD 97-01 is adopted, effective August 15, 1997.

SIGNED this_________ day of ____________________ 1997.

_____________________________________
Anthony F. Vollack, Chief Justice

© 1997 The Colorado Lawyer and Colorado Bar Association. All Rights Reserved. Material from The Colorado Lawyer provided via this World Wide Web server is protected by the copyright laws of the United States and may not be reproduced in any way or medium without permission. This material also is subject to the disclaimers at http://www.cobar.org/tcl/disclaimer.cfm?year=1997.


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