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COURTS

LUZERNE COUNTY

Order Establishing a Conflict Counsel Pool and Fee Schedule for the Payment of Conflict Counsel Certified to Represent Defendants When They are Deemed Ineligible for Representation by the Luzerne County Public Defenders Office Due to a Conflict of Interest

[39 Pa.B. 520]
[Saturday, January 31, 2009]

Order

   And Now, this 13th day of January, 2009, the Court hereby adopts Guidelines for the establishment of a Conflict Counsel Pool and the Rate of Compensation to be paid to counsel deemed eligible to be appointed Conflict Counsel upon application of Luzerne County, through application of its Public Defender's Office, with counsel fees to be paid through the Luzerne County's General Fund, effective sixty (60) days from the date of this Order.

   It is further ordered that the District Court Administrator shall file seven (7) certified copies of this Order and the following Guidelines, along with a diskette with the Administrative Office of Pennsylvania Courts, two (2) certified copies of this Order and the following Guidelines along with a diskette to the Legislative Reference Bureau for publication in the Pennsylvania Bulletin, one (1) certified copy to the Criminal Procedural Rules Committee, one (1) certified copy to the Judicial Council of Pennsylvania Statewide Rules Committee, and one (1) copy to the Luzerne Legal Register for publication in the next issue.

   It is further ordered that this Order and Guidelines shall be kept continuously available for public inspection and copying in the Luzerne County Clerk of Court's Office.

By the Court

MARK A. CIAVARELLA, Jr.,   
President Judge

CONFLICT COUNSEL GUIDELINES

I.  STATEMENT OF GUIDELINES

   A.  Objectives

   1.  The objective of these Guidelines is to attain the ideal of equality before the law for all persons. Therefore, the Guidelines shall be administered so that those accused of crimes, or otherwise eligible for legal representation will not be deprived, because they are financially unable to pay for adequate representation, of any element of representation necessary to an effective defense.

   2.  The further objective of these Guidelines is to enumerate the criteria in a way that meet the Conflict Counsel needs of the 11th Judicial District of Pennsylvania, Court of Common Pleas of Luzerne County.

   B.  Compliance

   1.  The court, its clerk, the Luzerne County Public Defender's Office, and appointed private counsel shall comply with the Guidelines as set forth herein.

II.  DEFINITIONS

   A.  ''Appointed counsel'' includes private attorneys.

   B.  ''Judge'' means Judge of the Pennsylvania Court of Common Pleas of Luzerne County.

   C.  ''Representation'' includes counsel and investigative, expert, and other services necessary for an adequate defense.

III.  PROVISIONS OF REPRESENTATION

   A.  Circumstance

   1.  Mandatory

   Representation shall be provided for any financially eligible person who cannot be represented by the Luzerne County Public Defender's Office because of a conflict of interest with the Public Defender's Office.

   a.  is charged with a felony or with a misdemeanor;

   b.  is a juvenile alleged to have committed an act of juvenile delinquency defined in the Juvenile Act;

   c.  is charged with a violation of probation, or faces a change of a term or condition of probation;

   d.  is under arrest, when such representation is required by law;

   e.  is entitled to appointment of counsel in parole proceedings;

   f.  is charged with a violation of supervised release or faces modification, reduction, or enlargement of a condition, or extension or revocation of a term of supervised release;

   g.  is subject to a mental condition hearing;

   h.  is in custody as a material witness;

   i.  is seeking to set aside or vacate a death sentence;

   j.  is entitled to appointment of counsel under the Pennsylvania Constitution;

   k.  faces loss of liberty in a case and state law requires the appointment of counsel;

   l.  faces termination of parental rights; or

   m.  drug treatment court defendants.

   2.  Discretionary

   Whenever a Judge determines that the interests of justice so require, representation may be provided for any financially eligible person who cannot be represented by the Luzerne County Public Defender's Office because of a conflict of interest with the Public Defender's Office:

   a.  is charged with a summary offense for which a sentence to confinement is authorized;

   b.  is charged with civil or criminal contempt who faces loss of liberty;

   c.  has been called as a witness before a grand jury, a court, the Pennsylvania Legislature, or a State agency or commission which has the power to compel testimony, and there is reason to believe, either prior to or during testimony, that the witness could be subject to a criminal prosecution, a civil or criminal contempt proceeding, or face loss of liberty.

   B.  When Counsel Shall be Provided

   Counsel shall be provided to eligible persons as soon as feasible after a conflict of representation with the Public Defender's Office is established and they are taken into custody, when they appear before a judge, when they are formally charged or notified of charges if formal charges are sealed, or when a judge otherwise considers appointment of counsel appropriate under these Guidelines, whichever occurs earliest.

   In appointing counsel, the Court shall select an attorney from the panel of private attorneys approved by the court, except in extraordinary circumstances where appointment of other qualified and experienced counsel becomes necessary.

   Appointment of counsel may be retroactive to include representation furnished pursuant to these Guidelines prior to appointment. The Court shall appoint separate counsel for persons having interests that cannot be represented by the same counsel or when other good cause is shown.

   C.  Number and Qualifications of Counsel

   1.  Number

   a.  State Capital Prosecutions. A person charged with a capital offense is entitled to the appointment of two (2) attorneys, at least of whom shall be learned in the law applicable to capital cases and has attained Capital Case Certification.

   b.  Habeas Corpus Proceedings. A financially eligible person seeking to vacate or set aside a death sentence is entitled to appointment of one or more qualified attorneys. Due to the complex, demanding, and protracted nature of death penalty proceedings, judicial officers should consider at least two counsel.

   D.  Eligibility for Representation

   1.  Fact Finding

   The determination of eligibility for representation under these Guidelines is a judicial function to be performed by a judge after Petition for Appointment of Conflict Counsel is presented to the President Judge or his designee and a conflict has been established by the Luzerne County Public Defender's Office.

   2.  Disclosure of Change in Eligibility

   If, at any time after appointment, counsel obtains information that a client is financially able to make payment, in whole or in part, for legal or other services in connection with his or her representation, and the source of the attorney's information is not protected as privileged communication, counsel shall advise the court.

IV.  PRIVATE COUNSEL

   A.  Establishment of Conflict Counsel

   The existing, previously established panel of attorneys who have been acting as conflict counsel are eligible and hereby appointed to provide representation under these Guidelines. The court shall review and approve attorneys for membership on the panel who are deemed competent to give adequate representation to parties under the Pennsylvania Constitution and Crimes Code.

V.  DUTIES OF APPOINTED COUNSEL

   A.  Standards

   The services to be rendered a person represented by appointed counsel shall be commensurate with those rendered if counsel were privately employed by the person.

   B.  Professional Conduct

   Attorneys appointed pursuant to these Guidelines shall conform to the highest standards of professional conduct, including, but not limited to the provisions of the Pennsylvania Rules of Professional Conduct.

   C.  No Receipt of Other Payment

   Appointed counsel may not require, request, or accept any payment or promise of payment or any other valuable consideration for representation under the appointment, unless such payment is approved by order of the court.

   D.  Continuing Representation

   Once counsel is appointed under these Guidelines, counsel shall continue the representation until the matter, including appeals or review by certiorari, is closed; until substitute counsel has filed a notice of appearance; until an order has been entered allowing or requiring the person represented to proceed pro se; or until the appointment is terminated by court order.

VI.  MISCELLANEOUS

   A.  Claims

   Claims for compensation of private attorneys providing representation under these Guidelines shall be submitted on an approved form to the Office of the Luzerne County Court Administration or the individual appointed by the court to oversee the processing and submission for payment monies due and owed. That office shall review the claim form for mathematical and technical accuracy and for conformity with these Guidelines, and, if correct, shall forward the claim form for the consideration of the appropriate judge. The court will exert its best effort to avoid delays in reviewing payment vouchers and in submitting them for further processing.

VII.  EFFECTIVE DATE

   This Plan shall become effective sixty (60) days from the date of this Order.

HOURLY FEE SCHEDULE

   (1)  Except for Capital Murder cases appointed counsel shall be paid at a rate of $100.00 per hour, calculated at tenth-of-hour increments with maximum compensation limits as set forth herein.

   (2)  Capital Murder cases appointed counsel shall be paid at a rate of $170.00 per hour, calculated at tenth-of-hour increments with without a maximum compensation limit subject, however, to approval by the trial judge.

   (3)  Non-Capital Murder cases appointed counsel shall be paid at a rate of $135.00 per hour, calculated at tenth-of-hour increments with maximum compensation limits as set forth herein.

PAYMENT OF COUNSEL/CASE COMPENSATION MAXIMUMS

   (1)  Specific Proceedings

   (i)  Felonies (except capital prosecution)
   $7,800 for trial court level
   $5,600 for appeal

   (ii)  Non-Capital Murder
   $10,000 for trial court level
   $7,500 for appeal

   (iii)  Misdemeanors
   $4,500 for trial court level
   $5,600 for appeal

   (iv)  Non-Capital Post-Conviction Proceedings
   $7,800 for trial court level
   $5,600 for appeal

   (v)  Capital Post-Conviction Proceedings
   No Maximum compensation limit, subject, however, to approval by the trial judge.

   (vi)  Capital Conviction Appeals
   No Maximum compensation limit, subject, however, to approval by the trial judge.

   (vii)  Appointed counsel shall also be reimbursed for expenses, including mileage authorized and established pursuant to the Luzerne County Mileage Reimbursement Rate.

   (viii)  Fees and expenses paid for investigative, expert, and other reasonably necessary services shall not exceed $7,500 in any case, unless payment in excess of that limit is certified by the court, as necessary to provide fair compensation for services of an unusual character or duration, and the amount of the excess payment is approved by the President Judge or his or her designee.

   The fee schedule also includes, but is not limited to the following representations:

   (2)  Probation Violation--$100.00 per hour

   (3)  Supervised Release Hearing (for persons charged with a violation of supervised release or facing modification, reduction or enlargement of a condition or extension or revocation of a term of supervised release)--$100.00 per hour

   (4)  Parole Proceedings--$100.00 per hour

   (5)  Material Witness in Custody--$100.00 per hour

   (6)  Mental Competency Hearings--$100.00 per hour

   (7)  Civil or Criminal Contempt (where the person faces loss of liberty)--$100.00 per hour

   (8)  Witness (before a grand jury, a court, the Pennsylvania Legislature, or a State agency or commission which has the power to compel testimony, where there is a reason to believe either prior to or during testimony, that the witness could be subject to a criminal prosecution, a civil or criminal contempt proceeding, or face loss of liberty)--$100.00 per hour

   (2)  APPROVAL OF PAYMENT

   Prior to payment, all fee and expense reimbursements shall be approved by the presiding judge.

[Pa.B. Doc. No. 09-152. Filed for public inspection January 30, 2009, 9:00 a.m.]



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