5-Attachment B SOW PostConvictions.docx

Attachment B Scope of Work: Post-Conviction Relief Act (PRCA) Litigation Services

1. Introduction The Utah Indigent Defense Commission (IDC) protects constitutionally guaranteed liberties through ongoing support for effective indigent defense services throughout the state.

In the 2020 Legislative Session, the Utah Legislature passed Senate Bill 139, which created the Office of Indigent Defense Services (the Office), within the IDC. Senate Bill 139, also created the Indigent Appellate Defense Division (IADD), within the Office, to serve indigent individuals in rural counties appealing their criminal convictions.

In 2022, the legislature expanded IADD’s duties to allow for IADD’s appointment to represent petitioners, throughout the state of Utah, pursuing postconviction relief pursuant to Utah Code Title 78, Chapter 9–the Postconviction Remedies Act (the Act). See Utah Code §§78B-22-109, -901, -903, -904. IADD’s representation includes postconviction cases in the district and appellate courts.

To fulfill its mandate, IADD contracts independent contractors to serve as indigent appellate defense service contractors (Contractors), to represent petitioners throughout the state seeking postconviction relief through the Act.

2.Background IADD is dedicated to protecting and defending the rights and dignity of each of our clients through zealous, compassionate, and client-centered advocacy. The goal of the office is to ensure delivery throughout the state—at the trial and appellate stages—of indigent defense services that do not merely meet the Strickland constitutional standard for effective assistance but provide all clients the highest quality of representation they deserve.

During Utah’s 2022 General Session, the legislature expanded IADD's responsibilities to include statewide representation of petitioners seeking postconviction relief under the Act. See Utah Code §78-9-109; see also Utah Code §§78B-22-109, -901, -903, -904. IADD assumed this responsibility in July 2022.

Pursuant to the above-referenced statutes, IADD is tasked with representing petitioners “in an action or an appeal for postconviction relief under Title 78B, Chapter 9, Postconviction Remedies Act, if the court appoints the division to represent the indigent individual.”

IADD contracts with experienced Contractors to handle postconviction relief cases, providing representation in both district and appellate courts where IADD has been appointed by the courts.

Contractors will be given the option to provide representation to Petitioners (1) during the initial petition phase in the district court where Petitioner’s claims have not been dismissed at the time of appointment and further litigation is required, or (2) during the appellate phase where the district court has dismissed Petitioner’s claims, and that decision has been appealed requiring appellate briefing of the issues/claims on appeal, or (3) during both the initial petition and appellate phases.

3.Scope of Work A. Contractor’s representation shall include, but will not be limited to the following activities in a case:

1. Entering an appearance with applicable court–district and/or appellate.

2. Consulting with clients in person, or as practicable, as soon as possible after entering an appearance and maintaining contact throughout representation

3. Be responsible for all aspects of the case assigned, including, but not limited to court filings–motions, pleadings, petitions, appellate briefs, and petitions for writ of certiorari.

4. Ordering transcripts, requesting the official court records/pleadings, and requesting trial and appellate counsel’s files. This includes requesting these documents/records/pleadings/transcripts/files in the underlying criminal case.

5. Reviewing the trial and appellate court records, pleadings, transcripts, police reports, discovery; and trial and appellate counsels’ files for issues to raise in the petition or on appeal.

6. Managing docket of petitioners seeking postconviction relief through the Act.

7. Preparing an initial or amended petition and, if applicable, opening and reply briefs, rule 23B briefs, and petitions for Certiorari along with any 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).

8. Conducting evidentiary and other needed hearings, briefing all meritorious and relevant issues in the petition filed in the district court and/or in the briefs on appeal filed in the appellate courts.

9. Briefing non-frivolous issues requested by the petitioner.

10. Thoroughly researching the law specific to petitioner’s issues.

11. Working with an investigator to investigate facts and circumstances necessary to fully brief issues.

12. Using other defense resources as appropriate with approval from the Chief Appellate Officer.

13. Appearing for scheduled hearings, oral argument(s) in the case, and any other hearings or arguments directly relating to the assigned petition.

B. Contractor will agree also to:

1. Make reasonable efforts to visit and communicate with clients, return telephone calls, respond to individual’s correspondence, keep the client updated on their postconviction case, and otherwise be accessible. Failure to maintain proper communication with the client may result in termination of the contract at IADD's discretion.

2. Remain on the petition through either the final disposition of the postconviction case, the agreed upon petition phase (as spelled out above in the Background section), or until termination of this Agreement by either party pursuant to this Agreement or for material breach.

3. Keep abreast of recent legislation and case law related to the postconviction process and work with IADD to help shape relevant postconviction procedures.

4. Track services provided for petitioners using a case management system to record work for billing, motions filed, visits, and other information that does not violate the attorney-client privilege.

5. Submit reports and invoices to IADD for work performed, as requested by the Division, on a monthly basis.

6. Maintain records to track the Services provided for each client for whom the Contractor enters an appearance, collect all relevant case information for each individual represented, and submit it to IADD within three calendar days after the entry of appearance.

7. In addition to representing petitioners, Contractor will coordinate with the Division to:

a. Provide IADD staff, when requested, with consultation and collaboration services on postconviction cases.

b. If requested by IADD, create and present a legal education program to assist with the development and implementation of training for trial and appellate practitioners statewide in the field of postconviction.

c. Attend monthly trainings presented by IADD or one of its designees.

d. Contractor will be compensated on an hourly basis for the time given to consultation and collaboration with IADD staff,

8. Contractor will be compensated on an hourly basis for the time spent delivering the legal education program, if requested by IADD, and for attending monthly trainings.

C. In exchange for Contractor’s services to indigent individuals in postconviction, IADD will:

1. Develop and present free, relevant CLE training for Contractors.

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

2. Reimburse Contractor for travel costs (mileage and pre-approved lodging) to and from Utah’s courts and for other necessary travel. These costs will be reimbursed based on proper documentation at the state mileage rate and the federal lodging per diem rates on the GSA site in place at the time of travel. IADD will not pay a Contractor for travel time.

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

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

b. Retaining investigators, expert witnesses, and other defense resources deemed necessary, with prior written approval submitted to IADD’s chief appellate officer before incurring the expense.

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

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

iii. Upon a showing that defense resources above $500 are necessary, a Contractor may request additional funding for expenses related to an appointed case in writing, before incurring the expenses, to IADD’s chief appellate officer. Contractors shall make best efforts to minimize the cost and expenses. Without IADD approval, such expenses incurred by the Contractor shall be the Contractor's sole responsibility.

4. Upon Contractor’s timely submission of required reports showing time and non-protected work performed on postconviction, IADD shall pay Contractor an hourly rate of $150/hour plus travel and expenses:

a. There will be the following presumptive maximums for all assignments:

1. $9,000, plus travel and expenses, if the assignment begins with a case pending in the district court and the Contractor agrees to only handle the case in the district court, and does not have any appellate court responsibility;

2. $9,000, plus travel and expenses, if the assignment begins with the appeal of a district court’s decision on a petition filed pursuant to the PCRA;

3. $12,000, plus travel and expenses, if the assignment begins with a case pending in the district court and the Contractor agrees to maintain representation in the case throughout all proceedings in Utah courts, whether district courts, Court of Appeals, or Supreme Court. Under such circumstances, the assignment will have a presumptive maximum of $9,000, plus travel and expenses, for all district court proceedings, and an additional $3,000 for any appeal. Contractor may seek to exceed either maximum by obtaining prior written approval from IADD.

5. For petitioners located out of state, contractors agree to seek the written approval of the chief appellate officer before making any travel arrangements to visit with petitioner.

6. Contractor agrees that they will not exceed the presumptive maximum amounts for any case without prior approval, in writing, from IADD’s chief appellate officer. Prior to Contractor working above any of the hourly caps specified above, Contractor shall notify IADD and set forth an explanation in writing why any additional work is required above these caps in a particular case. A Contractor shall use best efforts to minimize the cost and expenses. Any Services provided above these caps without prior approval by IADD may not be compensated.

7. Contractor will not be paid any compensation in excess of the total dollar amount identified in Section C of this document unless the work has been authorized in writing as stated in paragraph 6.

4.Requirements of IADD contracts with Contractors A. IADD will contract with Contractors in the following manner:

1. After receiving notice of appointment, IADD will review the list of contractors and work with selected Contractors to ensure they can take a case and provide constitutionally mandated, effective, and timely assistance of counsel.

2. Upon notice of assignment to a postconviction case, Contractor shall review the Contractor’s total workload to determine if effective Services can be provided on an assigned case, considering any material conflict of interest.

3. If a Contractor refuses to take a postconviction case, IADD will move to another Contractor. Any Contractor’s refusal to take a postconviction case will not preclude future cases from being assigned to that Contractor.

4. By taking a postconviction case, the Contractor agrees that they have the time, experience, training, and expertise to provide constitutionally effective legal representation and assistance of counsel.

5. Once the Contractor enters an appearance, they agree to provide effective, timely, and continuing Services for petitioners pursuing postconviction relief under the Act pursuant to the obligations set forth in Utah and Federal law, and this agreement.

6. A Contractor assigned a case that is pending in the district court prior to a final decision to deny or dismiss the entirety of the petition, may accept the case and indicate an intention to limit representation to district court proceedings. Under such circumstances, Contractor would not be contracted to handle any appeal of an adverse decision by the district court in the case. A Contractor who agrees to maintain representation of a PCRA case pending in the district court through the conclusion of any appeal will have the maximum case budget increased to $12,000 at the outset, without the need for any prior approval. All other terms of this agreement shall apply, including that Contractor must obtain prior written approval to exceed the contract limit.

B. IADD will require and Contractors will agree to the following:

1. To notify IADD promptly in writing of any change of address, conflict of interest, conflicting litigation, or other inability to practice law.

2. To maintain and provide IADD proof of professional malpractice insurance with a minimum limit of no less than $250,000.00 per claim and $500,000.00 per occurrence.

3. To hold IADD, the IDC, 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 Contractor or as a result of the contract.

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

5. To avoid material conflicts of interest which would divide loyalty of the Contractor to the client or violate the Utah Rules of Professional Conduct.

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

7. To 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, client communication and contact, motions filed (timing and type), use of investigators and experts.

8. To provide IADD a monthly report of the number and types of postconviction cases, 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 IADD that do not violate the attorney/client privilege.

9. To keep IADD apprised of whether additional funding may be necessary to address the Services provided.

5. Compliance A. IADD tracking of compliance with terms of contract with Contractor

1. Contractor will submit timely and accurate monthly reports that comply with IADD’s reporting requirements, as specified in the contract, by the IADD. Contractor will use a case management system to report on the requested information.

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

3. IADD will implement a system to periodically listen to live-streamed audio of oral arguments in the district and appellate courts or observe Contractors in court during proceedings to aid in its assessment of Contractors’ Services.

6. Timeline IADD’s responsibility for administering postconviction cases throughout the state arises from authority granted by the Utah State Legislature. The additional funding provided, and the need for postconviction representation, have led IADD to exercise its statutory authority to contract with qualified counsel to provide this representation. This project has no terminal date. Although specific, individual contracts may be terminated, the project will continue until the statutes creating IADD are modified or eliminated, or funding is no longer available.

The scope of work identified for the Contractors will accompany a signed contract with each Contractor to provide representation as assigned by IADD and accepted by Contractor.

7. Budget The budget for this project is based on legislatively appropriated funds. Additional funding may be added to the awarded contract(s), at the discretion of IADD’s Chief Appellate Officer, if available.