This filing was published in the 05/15/2008, issue, Vol. 2008, No. 10, of the Utah State Bulletin.
Administrative Services, Finance
Payment of Attorneys' Fees in Death Penalty Cases
NOTICE OF 120-DAY (EMERGENCY) RULE
DAR File No.: 31363
Filed: 05/01/2008, 05:03
Received by: NL
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:
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.
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
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:
This rule is effective on:
Kimberly K Hood, Executive 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 [
pursuant to Section [ 78-35a-202].
(2) The purpose of the rule is to establish the
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
R25-14-2. Request for Payment.
In order to]
obtain payment for attorney's fees and litigation expenses, counsel appointed
by a [ district] court, pursuant to Section [ 78-35a-202(2)(c)],
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.]
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]equest for [ P]ayment to the
Division of Finance, agree 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.]
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.]
R25-14-4. Schedule of Payments of Attorneys Fees.
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.
The Division of Finance shall pay
reasonable litigation expenses not to exceed a total of $20,000[
[ 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.]
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.]
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
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For questions regarding the content or application of this rule, please contact 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 For questions about the rulemaking process, please contact the Division of Administrative Rules (801-538-3764).
Last modified: 05/14/2008 3:03 PM