5-Attachment B Scope of Work AggravatedMurderAppeals 050526.docx

Scope of Work Attachment : B

1. Introduction

The Agency seeks to enter into a contract with an appellate attorney (Contractor) who is qualified to handle appeals for clients convicted of Aggravated Murder, under the criteria set forth in Rule 8 of the Utah Rules of Criminal Procedure. Clients will primarily be located in the Central Utah Correctional Facility (CUCF) in Gunnison or in the Utah State Correctional Facility in Salt Lake City during the course of the case. The work will primarily occur in Utah’s two state appellate courts. The appellate attorney will be responsible for representing clients through the conclusion of all matters in the state appellate courts.

2. Background

An indigent individual who faces a criminal prosecution that carries with it any potential deprivation of the indigent person’s liberty is entitled to the effective assistance of counsel under the United States and Utah Constitutions. Utah has historically delegated the responsibility for providing effective indigent defense services (Services) to its political subdivisions; the 29 counties and 247 cities.

Created in 2016, the Utah Indigent Defense Commission (IDC) protects constitutionally guaranteed liberties through ongoing support for effective indigent defense services throughout the state. The duties of IDC are carried out by the Office of Indigent Defense Services (Agency).

In the 2024 Legislative Session, the Utah legislature passed Senate Bill 240, which added to the IDC’s duties the responsibility of administering the Aggravated Murder Indigent Defense Fund (Fund). As a result, the Agency must maintain a list of Rule-8 Qualified Attorneys (Contractor(s)) who are available to represent individuals charged with aggravated murder in cases arising from counties that participate in the Fund. These indigent defense services include appellate representation.

3. Scope of Work for Contractors

Contractors shall:

1. Ensure that Contractor(s) assigned to the case remains qualified by experience and training, to represent individuals charged with capital aggravated murder on appeal, under Rule 8 of the Utah Rules of Criminal Procedure.

2. Upon notice of assignment to a case review current workloads to determine if effective Services can be provided to the assigned case. The Contractors must consider any material conflict of interest.

3. Upon acceptance of an appointment, Contractor(s) shall:

a. Enter an appearance by all Attorneys assigned to the case with the relevant court, as soon as practicable after appointment.

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

c. Provide effective, timely, and continuing Services for indigent client(s), pursuant to obligations set forth in Utah and Federal Law, and this agreement.

d. Order transcripts requesting the official court record/pleadings, and requesting trial counsel's files, and the Contractor shall ensure that in the request for official transcripts, which is sent to courts, that the courts order transcripts from an approved state vendor whenever possible.

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

f. Prepare and timely file opening and reply briefs and, if applicable, rule 23 briefs, and petitions for Certiorari and subsequent briefing in the Supreme Court as required (if representing Appellant), or preparing response brief, and responding to Certiorari pleadings as necessary (if representing Appellee).

g. Brief all meritorious and /or relevant issues, as well as non-frivolous issues requested by the indigent individual whom the Contractor represents.

h. Thoroughly research the law specific to an individual's issues.

i. Work with investigators to investigate facts and circumstances necessary to fully brief issues.

j. Employ other defense resources as appropriate with approval in writing from the Agency of Indigent Defense Services (agency).

k. Thoroughly research the law specific to individual issues.

l. Prepare for and appear for oral arguments(s) in the case and any other hearings directly relating to the assigned case.

m. Perform all legal services required under this contract in a professional and ethical manner, consistent with the guidelines and standards set forth in the American Bar Association Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases, the Utah Rules of Professional Conduct, and such other applicable law, rule, and case law governing the practice of law in the State of Utah together with such other regulations or statutory provisions to which the Contractors may be subject as a result of federal law. See https://files.deathpenaltyinfo.org/legacy/files/pdf/2003ABAGuidelines.pdf and https://files.deathpenaltyinfo.org/legacy/files/pdf/2008SupplementaryGuidelines.pdf

Contractors agree to:

A. Make reasonable efforts to visit and communicate with indigent clients, return phone calls, respond to correspondence, keep the client updated on this/her appeal, and otherwise be accessible.

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

C. Once Contractor(s) enters an appearance, s/he 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 this agreement

D. Track Services provided for indigent individuals appealing criminal convictions using Defender Data to record work for billing, motions filed, visits, and other information that does not violate the attorney client privilege.

E. Submit reports and invoices to the Agency for work performed on a quarterly basis. The invoices shall be submitted to the Agency by email <idc@utah.gov> at least quarterly by the following dates: April 20 (Jan-Mar), July 15 (Apr-Jun), October 20 (Jul-Sep) and Jan 20 (Oct- Dec). Billing may not be accepted if it is received by the Agency late, if prior approval has not been obtained in writing.

Agency Agreements:

1. Work with the Contractors to determine if they can provide effective Services on the assigned case, or reassign cases if there is an issue with Contractor(s) taking on a case assigned by the Agency.

2. Provide adequate, free, relevant CLE training to Contractors. However, Contractors may request additional CLE-related funding from the Agency for specialized legal training that the Contractor(s) demonstrates is relevant to their appointed cases and their category of Services.

3. Provide reimbursement of travel costs based on proper documentation at the state rate in place at the time of travel. Time spent traveling is also eligible for payment.

4. Agency will pay or reimburse other reasonable and necessary expenses, including: postage, transcription/transcript fees, witness costs, costs for copying documents at 10 cents per copy.

5. In addition to the investigative and mitigation fees described below, the Agency will pay fees for mental and physical examinations and costs associated therewith, with prior written approval from the Agency.

6. Upon Contractor(s)’s timely submission of required reports showing time and non-protected work performed on a case, the Agency shall pay Contractor(s) as follows:

a. The Agency will pay Contractor on each case as follows:

i. $200 per hour each, up to 150 hours total, for legal services rendered on assigned cases, upon timely submission of hours and time reports from Defender Data, without prior authorization.

b. The Agency will pay non-attorney expenses as follows:

i. Mitigation Specialist and Mitigation Investigator fees: Reasonable expenses not to exceed $30,000, without prior authorization in writing from the Agency.

ii. Investigator fees: Reasonable expenses not to exceed $20,000, without prior authorization in writing from the Agency.

iii. Expert fees: Reasonable expenses not to exceed $30,000.

iv. Administrative/Paralegal Assistance $60/hour. Contractors shall make good faith attempts to use legal assistants where attorney work is not required. The hourly work of legal assistants will count towards the total hourly caps specified above for legal services.

c. Prior to Contractors working above the caps specified above, they shall notify the Agency before reaching any cap, and set forth an explanation in writing why any additional work is required above these caps in a particular case. A Contractor(s) shall use best efforts to minimize the cost and expenses. The Agency will make a timely decision and notify the Contractors of its decision. Any Services provided above these caps without prior approval by the Agency, may not be compensated and shall be the sole responsibility of the Contractor(s).

Requirements: During the duration of the contract with the Agency, Contractors shall:

1. Maintain an active license and remain in good standing with the Utah State Bar at all times during the period of this contract, and remain qualified under Rule 8 of the Utah Rules of Criminal Procedure.

2. Not be currently, or prospectively a party to any litigation which would place Contractor(s)’s licensing or standing with the Utah State Bar in question;

3. Abide by all federal state and local laws, the Canons of Ethics adopted by the Utah State Bar, the Rules of Professional Conduct, and the Rules of Civility, as adopted and modified by the Utah Supreme Court, in the performance of the duties under this Agreement;

4. Be qualified by experience and relevant training to provide effective Services to indigent inmates as required by the United States and Utah Constitutions, the Act, and this Agreement;

5. Remain educated and current on all developments in the law relevant to the legal defense of an individual for which the Contractor(s) has been appointed to represent;

6. Attend at least eight (8) hours of a combination of relevant criminal defense and appellate CLE training per year through a CLE program approved by the Utah State Bar for CLE credit;

7. Promptly notify the Agency in writing of any change of address, conflict of interest, conflicting litigation, or other inability to practice law;

8. Maintain and provide the Agency 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;

9. Hold the Agency harmless from all damages, loss or injury it may suffer or be held liable for as a result of the conduct of Contractor(s) or as a result of the contract;

10. Not accept appointments or private clients, when those cases would cause the Contractor(s)’s caseload to exceed a number that allows the Contractor(s) to provide effective Services to indigent inmates;

11. Avoid material conflicts of interest which would divide loyalty of the Contractor(s) to the client or violate the Utah Rules of Professional Conduct.

12. Contact the Agency as soon as possible, if the Contractor(s) determines that acceptance of appointment on a case or cases under this contract would cause Contractor(s) to have a material conflict of interest or otherwise impair the Contractor(s)’s ability to provide effective Services to every client, or about any circumstances which are likely to cause any Contractor(s) to withdraw after acceptance of a case;

13. Ensure that the representation under this contract is the first priority in scheduling and if a matter must be temporarily reassigned because of a scheduling conflict, the Contractor(s) shall use a Contractor(s) under contract with the Agency;

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

15. Upon request, provide the Agency a quarterly report of the number and types of cases or matters handled specifying the types and classes of offenses, courts, particular clients, non-jury trials, jury trials, hearings other than trials, plea-negotiated settlements and/or such other factors or statistical information as may be reasonably requested by the Agency that do not violate the attorney/client privilege; and

16. Keep the Agency apprised of whether additional funding may be necessary to address the Services provided.

Compliance:

1. During the duration of the contract with the Agency, Contractors shall provide timely and accurate compliance with the Agency’s quarterly reporting requirements, specified in the contract, using the IDC’s case counting definitions.

2. The Agency may remove any Contractor(s) that fails to maintain active status in Good Standing with the Utah State Bar, Utah Appellate Roster or Rule 8 qualification if applicable, for any other ethical or criminal violations that may prevent Contractor(s) from fairly, efficiently and effectively providing Services.

Project Budget The Fund budget is dependent upon annual assessments from participating counties as stated in Senate Bill 160, 2024. The contract amount may be adjusted (increased or decreased) as needed based on caseloads and legal costs at the discretion of the Executive Director of the Office of Indigent Defense Services.