No. 31363: R25-14. Payment of Attorneys' Fees in Death Penalty Cases

DAR File No.: 31363
Filed: 05/01/2008, 05:03
Received by: NL

RULE ANALYSIS

Purpose of the rule or reason for the change:

The purpose of this emergency rule is to establish the method in which attorneys receive compensation in compliance with Section 78B-9-202 which was amended by S.B. 277 (2008). (DAR Note: S.B. 277 (2008) is found at Chapter 288, Laws of Utah 2008, and is effective 05/05/2008.)

Summary of the rule or change:

The requirement of a submission of written approval from the court certifying that fees and expenses were reasonable. The maximum compensation rate was increased from $100 per hour to $125 per hour, not to exceed $60,000.

State statutory or constitutional authorization for this rule:

Section 78B-9-202

Anticipated cost or savings to:

the state budget:

Cost to the state budget is dependent upon the number of death penalty cases in the system. This amendment removes benchmark payments in favor of an hourly compensation with additional funds available for reasonable litigation expenses. With this method of payment, moderately higher costs are likely to be incurred.

local governments:

This rule does not affect local government because local government does not compensate attorneys in death penalty cases.

small businesses and persons other than businesses:

This rule may increase profit for small law firms with attorneys representing clients in death penalty cases. The exact increase is impossible to predict because the number of attorneys from small firms who will be involved in these post-conviction cases is unknown.

Compliance costs for affected persons:

No associated compliance costs because this amendment does not require further action on the part of any person. It simply changes the rate at which attorneys are compensated.

Comments by the department head on the fiscal impact the rule may have on businesses:

The rule will have no net cost to businesses; however, attorneys who serve as counsel in post-conviction cases will see a possible increase in payment from the state. Kimberly Hood, Executive Director

Emergency rule reason and justification:

Regular rulemaking procedures would place the agency in violation of federal or state law.

The amended Section 78B-9-202 increasing attorney compensation will become law on 05/05/2008.

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Administrative Services
Finance
Room 2110 STATE OFFICE BLDG
450 N MAIN ST
SALT LAKE CITY UT 84114-1201

Direct questions regarding this rule to:

Marilee Richins at the above address, by phone at 801-538-3450, by FAX at 801-538-3244, or by Internet E-mail at [e-mail]

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

This rule is effective on:

05/05/2008

Authorized by:

Kimberly K Hood, Executive Director

RULE TEXT

R25. Administrative Services, Finance.

R25-14. Payment of Attorneys Fees in Death Penalty Cases.

R25-14-1. Authority and Purpose.

(1) This rule is [implemented]enacted pursuant to Section [78-35a-202]78B-9-202.

(2) The purpose of the rule is to establish the procedures [and maximum compensation amounts to be paid for]for payment of attorneys' fees and litigation expenses by the Division of Finance to legal counsel appointed by [district ]courts to represent indigent persons sentenced to death who request representation to file an action under Title 78B, Chapter [35a]9, Post-Conviction Remedies Act.

(3) All payments under this rule are subject to the availability of funds appropriated by the Utah State Legislature for the purpose of making these payments.

(4) This rule applies to fees and expenses incurred on and following the effective date of this rule.

(5) This rule is effective May 5, 2008.

 

R25-14-2. Request for Payment.

[In order to]To obtain payment for attorney's fees and litigation expenses, counsel appointed by a [district] court, pursuant to Section [78-35a-202(2)(c)]78B-9-202, shall:

(1) P[p]resent to the Division of Finance a certified copy of the [district ]court order of appointment [of legal counsel and a signed Request for Payment verifying the work has been performed as provided in Section R25-14-4 pursuant to the schedule of payments set forth in that section.]before or at the time the first request for payment is submitted.

(2) Obtain the court's review and written approval certifying that the fees and expenses were reasonable in accordance with Section 78B-9-202 and this rule.

(3) Submit the court's written approval and a request for payment to the Division of Finance.

(4) The request for payment must verify that the work has been performed as provided by this rule and Section 78B-9-202 and be signed by the appointed counsel. The request for payment must be sufficiently itemized to describe the services performed and such other information as may be reasonably required by the Division of Finance to properly review and process the payment. Original invoices must be submitted for all litigation expenses for which payment is requested.

(5) Before making payment, the Division of Finance may request additional supporting documentation.

(6) The Division of Finance may withhold payment for any item in a request for payment when such item conflicts with this rule or the Post-Conviction Remedies Act pending resolution of the amount requested.

 

R25-14-3. Scope of Services.

(1) All appointed counsel, by accepting the court appointment to represent an indigent client sentenced to death and by presenting a [R]request for [P]payment to the Division of Finance, agree in accordance with the Post-Conviction Remedies Act to provide all reasonable and necessary post-conviction legal services for the client, [including timely filing an action under the provisions of Title 78, Chapter 35a, Post-Conviction Remedies Act and representing the client in all legal proceedings conducted thereafter including, if requested by the client, an appeal to the Utah Supreme Court.]and represent the client in all legal proceedings conducted thereafter including, if requested by the client, an appeal to the Utah Supreme Court.

(2) [All appointed counsel agree to accept as full compensation for the legal services performed and litigation costs incurred the amounts provided in the Schedule of Payments of Attorneys Fees found in Section R25-14-4.]Full compensation for the legal services performed and litigation costs incurred shall be the amounts provided in the Post-Conviction Remedies Act and this rule.

 

R25-14-4. Schedule of Payments of Attorneys Fees.

[All counsel appointed to jointly represent a single client shall be paid, in the aggregate, according to the following schedule of payments upon certification to the Division of Finance that the specified legal service was performed or the specified events have occurred:

(1) $5,000.00 upon appointment by the district court and presentation of a signed Request for Payment to the Division of Finance.

(2) $5,000.00 upon timely filing a petition for post-conviction relief.

(3) $10,000.00 after all discovery has been completed, all prehearing motions have been ruled upon, and a date for an evidentiary hearing has been set.

(4) If an evidentiary hearing is required, $5,000.00 on the date the first witness is sworn.

(5) $7,500.00 if an appeal is filed from a final order of the district court. $5,000.00 of the total shall be paid when the brief on behalf of the indigent person is filed and $2,500.00 when the Utah Supreme Court finally remits the case to the district court.

(6) An additional fee of $100 per hour, but in no event to exceed $5,000.00 in the aggregate, shall be paid if:

(a) counsel satisfy the requirements of Rule 4-505, Utah Code of Judicial Administration; and

(b) the district court finds:

(i) that the appointed counsel provided extraordinary legal services that were not reasonably foreseeable at the time of accepting the appointment, such as responding to or filing a petition for interlocutory appeal, and

(ii) the services were both reasonable and necessary for the presentation of the client's claims.

(c) These additional fees shall be paid upon approval by the district court and compliance with the provisions of this rule.](1) The Division of Finance shall pay reasonable attorney fees for appointed counsel up to the maximum rate of $125 per billable hour not to exceed a total amount of $60,000, except as provided in subsection (2).

(2) The Division of Finance shall pay amounts exceeding the total amount if:

(a) before services are performed, appointed counsel files a request with the court to exceed the total amount allowed by subsection (1);

(b) appointed counsel serves the request upon the Division of Finance before or on the date of filing the request with the court;

(c) the Division of Finance is allowed to respond to the request; and

(d) the court determines there is sufficient cause to exceed the amount in accordance with Section 78B-9-202.

 

R25-14-5. Payment of Reasonable Litigation Expenses.

(1) The Division of Finance shall pay reasonable litigation expenses not to exceed a total amount of $20,000[.00] [in any one case for court approved investigators, expert witnesses, and consultants. Before payment is made for litigation expenses, the appointed counsel must submit a request for payment to the Division of Finance including:

(1) a detailed invoice of all expenses for which payment is requested; and

(2) written approval of the district court certifying that the expenses were both reasonable and necessary for the presentation of the client's claims.]except as provided in subsection (2).

(2) The Division of Finance shall pay amounts exceeding the total amount if:

(a) before services are performed or expenses are incurred, appointed counsel files a request with the court to exceed the total amount;

(b) appointed counsel serves the request upon the Division of Finance before or on the date of filing the request with the court;

(c) the Division of Finance is allowed to respond to the request; and

(d) the court determines there is sufficient cause to exceed the total amount in accordance with Section 78B-9-202.

(3) Travel costs, including mileage, per diem for meals, and lodging will be reimbursed based on state rates and criteria published in rule or policy by the Division of Finance. Travel is not reasonable when the purpose of the travel can reasonably be accomplished in another way, such as by telephone or correspondence.[

 

R25-14-6. Withdrawal of Counsel.

(1) If an attorney appointed under Section 78-35a-202 is permitted to withdraw by the court or, due to death or disability, is unable to continue, the attorney shall be paid only for the actual work performed to the date of withdrawal as certified by the court.

(2) If withdrawal is ordered by the court because of counsel's improper conduct or the court finds that a foreseeable conflict of interest which should have been disclosed prior to appointment existed, all compensation received by the attorney shall be repaid to the Division of Finance.]

 

KEY: attorneys, fees, capital punishment, post-conviction[*]

Date of Enactment or Last Substantive Amendment: May 5, 2008

Notice of Continuation: January 17, 2007

Authorizing, and Implemented or Interpreted Law: [78-35a-202]78-9-202