4-Attachment B SOW AppellateJuvenile.docx

Attachment B: Scope of Work Appellate Counsel in Juvenile Delinquency

1. Introduction

The Utah Indigent Defense Commission (IDC) protects constitutionally guaranteed liberties by providing ongoing support for effective indigent defense services across the state.

In 2020, the Utah legislature created the Indigent Appellate Defense Division (IADD) within the Office of Indigent Defense Services (Office), the commission’s administrative arm, to serve indigent individuals in rural counties appealing their criminal convictions, including juvenile delinquency cases. The legislature also authorized the Office to enter into contracts with attorneys to provide indigent defense services.

The Office seeks qualified attorneys (Provider) to serve as independent contractors to represent indigent individuals seeking to directly appeal their JUVENILE COURT DECISIONS IN DELINQUENCY CASES that occur in counties eligible for the IADD’s services.

Providers who are qualified to be appointed as appellate counsel in juvenile delinquency matters are those attorneys who are included on the Utah Courts’ Appellate Roster and identified as qualified to handle juvenile delinquency cases. This roster is administered by the Utah Supreme Court’s Standing Committee on Appellate Representation and the Board of Appellate Court Judges. See Rule 11-401, https://legacy.utcourts.gov/rules/view.php?type=ucja&rule=11-401; Utah Juvenile Delinquency Appellate Roster:

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2. Background

In 2019, the Utah Supreme Court created the Standing Committee on Appellate Representation and the Appellate Roster. See Rule 11-401. The purpose of the committee is “to assist the Board of Appellate Court Judges in determining a roster of indigent service provider attorneys who are eligible for appointment to represent indigent individuals on appeal to the Utah Supreme Court and the Utah Court of Appeals.” Id. With few exceptions, only attorneys included on the Appellate Roster are eligible for court appointments to represent indigent individuals on appeal.

The committee recommends attorneys for inclusion on the Appellate Roster based on eligibility criteria listed within the rule, “together with any other factor bearing on an applicant’s ethics, diligence, competency, abilities in briefing and oral advocacy, and willingness to fairly, efficiently, and effectively provide appellate representation to indigent individuals on appeal.” Id. The committee “considers issues such as quality of briefing, the applicant’s frequency of inadequate briefing, summary dismissals, or involuntary dismissals, and the applicant’s professionalism and civility.” Id. The committee may “recommend the removal of an attorney from the Appellate Roster.” Id. The appointed term of those included on the Appellate Roster is three years after which the attorney must reapply.

3. Scope of Work

A. Cases appointed to the IADD will be assigned to Provider in the following manner:

1. The IADD has adopted a process for assigning appellate counsel in juvenile delinquency appeals. Judges presiding in courts located in the 24 eligible counties will appoint the IADD to represent juveniles on direct appeal from juvenile court cases. After receiving a notice of an appeal, the IADD will select one of the contracted providers who is likely not only to have the necessary qualifications but also the capacity to take the case and will then offer the assignment of the case to that Provider.

2. Upon an offer of the assignment, the selected Provider shall determine whether effective and timely assistance of counsel can be provided on the case, considering any material conflict of interest and existing caseload.

3. If the selected Provider is unable to accept the offered case assignment, the IADD will move to another contracted Provider. Any Provider’s decision to decline an offer of a case assignment will not preclude future appeals being assigned to that Provider.

4. Accepting offered case assignments means that Provider assures the IADD of having the time, experience, training, and expertise to provide constitutionally effective legal representation and assistance of counsel on appeal in cases arising in the counties in which the contractual agreement requires Provider to appear as counsel of record.

5. Once appearance has been entered, Provider agrees to provide effective, timely, and continuing services for indigent individuals appealing criminal convictions, pursuant to the obligations set forth in Utah and federal law and the contract with the IADD.

B. Provider’s appellate defense services shall include, but will not be limited to, the following activities in a case:

1. Enter an appearance with the appellate court.

2. Collect all relevant case information for each individual represented and submit it to the IADD within three calendar days after the entry of appearance.

3. Consult with clients in person, or as practicable, as soon as possible after entering an appearance.

4. Order transcripts, requesting the official court record/pleadings, and requesting trial counsel’s files.

5. Review the court record, pleadings, transcripts, and trial counsel’s file for appellate issues.

6. Prepare an initial petition and reply briefs and, if applicable, rule 23B briefs, and petitions for Certiorari and subsequent briefing in the Supreme Court as required (if representing Appellant), or preparing a response brief, and responding to Certiorari pleadings as necessary (if representing Appellee).

7. Brief all meritorious and relevant issues.

8. Brief non-frivolous issues requested by client.

9. Thoroughly research the law specific to client’s issues.

10. Work with an investigator to investigate facts and circumstances necessary to fully brief issues.

11. Use other defense resources as appropriate with approval from the Chief Appellate Officer.

12. Appear for oral argument(s) in the case, and any other hearings directly relating to the assigned appeal.

C. Provider will also agree to do the following in assigned cases:

1. Make reasonable efforts to visit and communicate with indigent individuals, return telephone calls, respond to individuals’ correspondence, keep clients updated on their appeals, and otherwise be accessible.

2. Remain on the appeal through either the final disposition of the case, or termination of the contract by either party pursuant to the contract, or for material breach.

3. Track services provided for indigent individuals appealing juvenile court decisions and maintain records of those services using DefenderData, including but not limited to time spent and billed for working on cases, motions filed, visits, and other information that does not violate the attorney-client privilege.

4. Submit reports and invoices to the IADD for work performed on a monthly basis, or as requested by the division.

D. In addition to representing individual clients in juvenile delinquency appeals, Provider will perform the following tasks:

1. Develop and propose to the IADD a resource for trial-level counsel for consultation and collaboration on specific cases to which Provider is not yet appointed, but where an appeal is anticipated.

2. Create and present continuing legal education (CLE) that assists trial counsel in identifying and preserving issues for an appeal to better protect clients’ interests throughout their cases.

3. Provider will be compensated on an hourly basis for time spent consulting trial counsel and preparing and delivering legal education and other related approved tasks and activities.

E. Provider Pay and Non-monetary Benefits

In exchange for Provider’s services, the IADD will provide the following monetary compensation and non-monetary benefits:

1. Develop and present free and relevant CLE training to appellate attorneys, including specialized training targeted to juvenile delinquency appellate defense providers.

a. Provider may request additional CLE-related funding from the IADD for specialized legal training that the Provider demonstrates is relevant to the appointed cases and category of services.

2. Free in-person and remote interpreting services using a valid statewide cooperative contract, arranged through the Office.

3. Reimburse Provider for travel costs, namely lodging (if the destination is 50 miles or more from the Provider’s office) and mileage to and from Utah’s appellate courts and Utah juvenile detention facilities where clients reside. These costs will be reimbursed based on proper documentation at the state per diem rates for lodging and mileage in place at the time of travel. The IADD will not pay Provider for travel time.

4. Pay or reimburse other reasonable and necessary expenses, including:

a. Transcription fees and costs for copying documents at 10 cents per copy.

b. For purposes of rule 23B briefs for claims of ineffective assistance of counsel, the IADD will pay fees for investigators, expert witnesses, and other necessary defense resources, with prior written approval submitted before incurring the expense to the IADD.

c. Any expenses incurred in this category without prior approval may not be reimbursed.

5. Upon Provider’s timely submission of required reports showing time and non-protected work performed on an appeal, the IADD shall pay Provider in accordance with the level of appeal handled as follows:

a. Level 1 Appeals - from a juvenile delinquency decision that does not involve a trial or other substantive legal issue on appeal or is an interlocutory appeal:

$75/hour with a presumptive maximum of 20 hours -- $1,500 plus travel and expenses.

b. Level 2 Appeals - from a juvenile delinquency decision that involves a trial or other substantive legal issue on appeal: $150/hour with a presumptive maximum of 54 hours -- $8,100 plus travel and expenses.

c. Level 3 Appeals - from an adverse decision by the Utah Court of Appeals in juvenile court cases: $150 per hour for filing for a petition for certiorari and representation on certiorari, if granted, from either level of appeal. Where such a petition is prepared and filed and/or further representation on certiorari is required, Provider agrees not to bill the IADD more than $3,500 for representation on certiorari without prior approval, in writing, from the IADD.

6. Provider agrees not to exceed the presumptive maximum amounts for any appeal without prior approval, in writing, from the IADD. Prior to Provider working above any of the hourly caps specified above, Provider shall notify the IADD and set forth an explanation in writing why any additional work is required above these caps in a particular case. Provider shall use best efforts to minimize the cost and expenses. Any services provided above these caps without prior written approval by the IADD may not be compensated.

7. For the purposes of rule 23B briefing of ineffective assistance of counsel claims, the IADD will pay non-attorney expenses as follows:

a. The IADD will reimburse up to $500 on expert witness or investigation fees without prior approval.

b. Upon showing that defense resources above $500 are necessary in a particular appeal, Provider may request additional funding for extraordinary unforeseen expenses related to an appointed case in writing, before incurring the expenses, to the IADD. Provider shall use best efforts to minimize the cost and expenses. Without IADD’s approval, such expenses incurred by Provider shall be the sole responsibility of the Provider.

4. Additional Requirements

The IADD requires and Provider agrees to the following:

1. Maintain current status on the Utah Appellate Roster for Delinquency attorneys. Upon expiration of the Provider’s appointment to the Appellate Roster, the Provider agrees to reapply for appointment to the Appellate Roster--fulfilling the Appellate Roster’s eligibility criteria--and shall maintain his/her appointment for inclusion on the Appellate Roster for Delinquency attorneys during the entire period of contractual agreement.

2. Notify the IADD promptly in writing of any change of address and conflict of interest, as well as conflicting litigation or other inability to practice law.

3. Maintain and provide the IADD proof of professional malpractice insurance with at a minimum, limits of no less than $250,000.00 per claim and $500,000.00 per occurrence.

4. Hold the IADD, the IDC, the Office, and the State harmless from all damages, loss or injury it may suffer or be held liable for as a result of the conduct of Provider or as a result of the contract.

5. Decline to accept offered IADD case assignments or private clients when those cases would cause Provider’s caseload to exceed capacity and scope that allow Provider to provide effective services to indigent individuals in keeping with the IADD Core Principles for Appellate Representation.

6. Avoid material conflicts of interest that would divide Provider’s loyalty to a client or violate the Utah Rules of Professional Conduct.

7. Contact the IADD as soon as possible if Provider determines that acceptance of appointment on a case or cases under this contract would cause Provider to have a material conflict of interest or otherwise impair Provider’s ability to provide effective services to every client, or if the Provider determines there are any other circumstances that would likely cause Provider to withdraw after acceptance of a case.

8. Use and maintain accurate and current information on cases in the DefenderData case management system, to track time and all billable case work, including but not limited to case type, caseload, case outcome, client communication and contact, motions filed (timing and type), use of investigators and experts.

9. Provide the IADD a quarterly report of the number and types of appeals, specifying the types and classes of cases, issues, courts, particular clients, and/or such other factors or statistical information as may be reasonably requested by the IADD that do not violate the attorney/client privilege.

10. Keep the IADD apprised of whether additional funding may be necessary to address the services provided and request pre-approval in writing from the Chief Appellate Officer for such funding.

5. Compliance and Monitoring

1. Provider will submit timely and accurate quarterly reports that comply with the IADD’s reporting requirements as specified in the contract. Provider will use the DefenderData case management software to report on the requested information.

2. The IADD will survey clients, appellate court judges/justices, and appellate court clerks for feedback on the quality and nature of the work provided.

3. The IADD will periodically listen to live-streamed audio of Provider’s oral arguments in the appellate courts or observe Provider in-court during oral arguments to aid in its assessment of Provider’s services.

6. Project Deliverables

The scope of services required to effectively represent indigent individuals appealing juvenile court decisions varies depending on the complexity of the issues being appealed. The IADD will track information and data about appeals arising from eligible counties to better understand the scope of work and services required to zealously advocate for indigent individuals on appeal, including the following:

a. total number of indigent individuals appointed appellate counsel;

b. type and number of issues raised on appeal;

c. complexity of issues raised on appeal;

d. number of rule 23B briefs filed and issues raised in ineffective assistance of counsel claims;

e. average number of hours needed to complete the various issues raised on appeal; and

f. number of conflicts or identified by Providers

7. Timeline

The IADD’s legislative mandate to provide juvenile delinquency appellate services in cases that occur in eligible counties will continue until the statutes are modified or eliminated.

However, the duration of the Provider contract will be five years unless terminated early by either party.

8. Budget The Provider 5-year contract amount is $120,000. However, depending on the availability of legislative appropriations, the Chief Appellate Officer may adjust the contract amount (increase or decrease) as needed to address the services provided. Likewise, the scope of work may be modified as needed to address the services provided.