DAR File No. 31011

Administrative Services, Finance

R25-14

Payment of Attorneys Fees in Death Penalty Cases

NOTICE OF PROPOSED RULE

DAR File No.: 31011
Filed: 02/15/2008, 04:55
Received by: NL

RULE ANALYSIS

Purpose of the rule or reason for the change:

The amendment to this rule will adjust the rates at which attorneys in death penalty cases are compensated.

Summary of the rule or change:

Maximum rate for attorney fees is $100 per billable hour not to exceed $60,000. Payments for individual benchmarks in legal process have been removed in favor of a straight hourly compensation. In addition to attorney fees, the Division of Finance shall increase compensation for reasonable and necessary litigation expenses from $20,000 to $25,000. Court must approve any overages of these fees as necessary.

State statutory or constitutional authorization for this rule:

Section 78-35a-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 law 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 amendment to 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

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 MPRICHINS@utah.gov

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:

03/31/2008

This rule may become effective on:

04/07/2008

Authorized by:

John Reidhead, Director

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 pursuant to Section 78-35a-202.

(2) The purpose of the rule is to establish the procedures and [maximum ]compensation amounts to be paid for 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 78, Chapter 35a, 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.

 

R25-14-2. Request for Payment.

[In order t]To obtain payment for attorney['s]s' fees and litigation expenses, counsel appointed by a district court, pursuant to Section 78-35a-202(2)(c), shall:

(1) [p]Present to the Division of Finance a certified copy of the district court order of appointment of legal counsel 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 both reasonable and necessary for the presentation of the client's claims.

(3) Submit the court's written approval and a request for payment to the Division of Finance. The request for payment must be signed by the appointed counsel[and a signed Request for Payment] verifying the work has been performed as provided in Section R25-14-4 or R25-14-5[pursuant to the schedule of payments set forth in that section]. 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, evaluate, and process the payment. Original invoices must be submitted for all litigation expenses for which payment is requested. Before making payment, the Division of Finance reserves the right to request additional supporting documentation or to adjust any item of a request for payment when such item conflicts with a rate established in this rule.

 

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 to provide all reasonable and necessary post-conviction legal services for the client, including the timely filing of 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.

(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 and R25-14-5.

 

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

(1) Attorney fees for appointed counsel shall be paid up to a maximum rate of $100 per billable hour not to exceed $60,000 except as provided in subsection (2).

(2) The Division of Finance may pay amounts exceeding the $60,000 amount allowed by subsection (1) if:

(a) appointed counsel files a request with the court for fees that exceed $60,000;

(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 $60,000 amount.

(3) The maximum rate of $100 per billable hour shall include general office overhead, clerical services or other expenses and costs, unless separately billable under R25-14-5.[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.]

 

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

(1) The Division of Finance shall pay reasonable and necessary litigation expenses not to exceed a total of $25[0],000.00 in any one case, except as provided in subsection (2), for the following:

(a) Investigator fees, other than mitigation specialist fees, not to exceed $60 per hour plus reasonable expenses including travel costs;

(b) Mitigation specialist fees not to exceed $75 per hour plus reasonable expenses including travel costs;

(c) Transcription fees;

(d) Witness costs;

(e) Expert witness fees;

(f) Fees for mental and physical examinations and costs associated therewith;

(g) Costs for voluminous copying by an outside provider;

(h) Mailing costs;

(i) Travel costs of the appointed counsel.

(2) The Division of Finance may pay amounts exceeding the $25,000 amount allowed by subsection (1) if:

(a) appointed counsel files a request with the court for expenses that exceed $25,000;

(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 $25,000 amount.

(3) The Division of Finance may pay amounts exceeding the maximum hourly rates allowed by subsection (1) if:

(a) before services are performed, appointed counsel files a request with the court to exceed the maximum hourly rates;

(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 maximum rates.

(4) 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 considered necessary when the purpose of the trip can reasonably be accomplished in another way, such as by telephone or correspondence.

(5) Costs for time spent creating billing and expense reports, petitions for exemptions or revisions to this rule, and other expenses not directly related to the petitioner's claims are not allowable.[ 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.]

 

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

Date of Enactment or Last Substantive Amendment: [January 22, 2001]April 7, 2008

Notice of Continuation: January 17, 2007

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