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Rule 11-401. Standing Committee on Appellate Representation and the Appellate Roster

 

Intent:

 

To establisha standing committeeto assist the Board of Appellate Court Judges in determining a roster of indigentservice provider attorneys who areeligible for appointment to representindigent individuals on appeal to the Utah Supreme Court andthe Utah Court of Appeals.

 

To establish uniform terms and a method for appointing committee members.

 

To establisha schedule for recommending the appointment of indigent defense serviceprovider attorneys to, or the removal of indigent defenseservice provider attorneys from, the Appellate Roster.

 

Definitions:

 

The terms ?ndigent defense service provider,?span style='letter-spacing:.4pt'> ?ndigent individual,?spanstyle='color:red;letter-spacing:.4pt'> ?ndigentdefense services,?/span> and ?ndigentAppellate Defense Division?/span> are defined in Utah Code Sections 78B-22-102 and -802.For purposes of this rule:

 

(1) ?ndigent appellate defense service provider entity? means a legal defender office thatis undercontract to perform indigentdefense services for one or morecounties in the state and has a designated appellate division consisting of one or more attorneys who are employed by the legal defender office and whose primary focus is appellate representation. ?mployedby?span style='letter-spacing:.35pt'> does not include an attorney who contracts separately with an indigent appellatedefense service providerentity;

 

(2) ?span class=GramE>indigent defense service providerattorney?span style='letter-spacing:.4pt'> means an individual attorney who hasbeen appointed to the AppellateRoster; and

 

(3) ?ppellate Roster?spanstyle='letter-spacing:.05pt'> means thelist of indigent serviceprovider attorneys who are eligible for appointment to represent indigent individuals on appeal to the Utah Supreme Court and the Utah Court of Appeals.

 

 

 

Applicability:

 

This rule applies to the internal operationof the Board of AppellateCourt Judges and the Committee on Appellate Representation and to courts of record in cases involving indigent individuals.

 

Statement of the Rule:

 

(a)  Committee establishment. The StandingCommittee on AppellateRepresentation is established as a committee of the Boardof Appellate Court Judges.

 

(1) Composition. The Committee consists of at least:

 

(A) One attorneyfrom the CriminalAppeals Division of the Utah AttorneyGeneral? Office;

(B) One attorney from an indigent defense service provider representingcriminal defendants in counties of the firstor second class;

(C) The Chief Appellate Officeror designee of the IndigentAppellate Defense Division;

(D) One attorneyon the Appellate Roster for criminal appeals;

(E) One attorneyon the Appellate Roster for juvenile delinquency appeals;

(F) One attorney on the Appellate Roster for child welfare appeals;

(G) One activeor retired judgefrom an appellate court;

(H) One activeor retired judge from anothercourt of record.

 

(2) Appointment. Committeemembers are appointed by the SupremeCourt and serve staggeredfour-year terms. The Supreme Court selects a chair from among the Committee? members. Judges who serve as members of the Committee willgenerally not be selectedas chair. Committee members serve as officersof the court and not as representatives of any client,employer, or other organization or interest group. At the Committee? first meetingin any calendaryear, and at every meetingat which a new Committeemember first attends, each Committee member will brieflydisclose the generalnature of the member? legal practice.

 

 

 

 

(3) Vacancies. In the event of a Committee vacancy, the Supreme Court, afterconsulting with the Committee chair, will appoint a new Committee member fromthe same category as the prior Committee member to serve for the remainingunexpired term.

 

(4) Absences. If a Committeemember fails to attend two consecutive Committeemeetings, the chair may notifythe Supreme Courtof those absences and may request that the Supreme Court replace that Committeemember.

 

(5) Administrative assistance. The Administrative Officeof the Courts will coordinate staffsupport to the Committee, includingthe Office of General Counsel? assistance in researchand drafting.

 

(b) Appellate Roster. The Board of Appellate Judges maintains an appellate roster of indigentservice provider attorneysskilled in handlingcriminal, juvenile delinquency, and childwelfare proceedings as defined in Rule 1(f) of the UtahRules of Appellate Procedure, and termination of parental rights proceedings under Section 78B-6-112.

 

(1) Purpose of the Committee. The Committee? purposeis to recommend to the Board of Appellate Court Judges attorneysfor inclusion on an appellate roster of indigent defense service providerattorneys eligible for appointment by the courts of this state to represent indigent individuals on appealbefore the Utah Supreme Courtor the Utah Court of Appeals. Except as specified in paragraph (b)(9), only attorneys on the AppellateRoster are eligible for such court appointments.

 

(2) Committee recommendations. The Committee will considerand recommend attorneys for inclusion on the Appellate Roster based on the eligibility criterialisted in paragraph (b)(3),together with any other factorbearing on an applicant? ethics,diligence, competency, abilitiesin briefing and oral advocacy, and willingness to fairly,efficiently, and effectively provide appellate representation to indigent individuals on appeal. The Committee will consider issues such asquality of briefing, the applicant? frequency of inadequate briefing, summary dismissals, or involuntary dismissals, and the applicant? professionalism and civility. The Committee may also recommend removing an attorney from the Appellate Roster.

 

(3) Eligibility criteria. To be considered for the AppellateRoster, an applicant must at a minimum complete an application in a form provided by the Committee and:

(A) demonstrate that the applicant has briefed the merits in at least threeappeals within the past three years or in 12 appeals total,or is directly supervised by an attorneywith that experience;

(B) be a memberof the Utah Bar in good standing;

(C) demonstrate knowledge of appellate practiceas shown by experience,training, or legal education;

(D) demonstrate ability to adequately and effectively raise and argue issues on appealand comply with applicable court rules;

(E) certify that the attorney has not, within the past three years, beenthe subject of an order issued by any appellatecourt imposing sanctionsagainst counsel, discharging counsel,or taking other equivalent action against counsel because of counsel? substandard performance before anappellate court;

(F) must not have been removed from theAppellate Roster within the past year;

(G) submit at least two appellatebriefs, at least one of which is in the relevantsubject matter area, to theCommittee with a certification that the applicantwas primarily responsible fordrafting the briefs;

(H) submit a petition underRule55 of the Utah Rules of Appellate Procedure if theperson is applying to be on the AppellateRoster for appeals from child welfare proceedings;

(I) provide citations for all appellatedecisions in which the applicant was counsel of record; and

(J) certify that the applicanthas sufficient time and administrative support to acceptan appointment to provide indigentdefense services for indigentindividuals on appeal and to providethe effective assistance of counsel in everycase and a willingness to committhose resources to that representation.

 

(4) Roster Selection. The Board of Appellate CourtJudges will approveor disapprove the Committee? recommendations with respect to attorneys to be includedon the Appellate Roster. Except asprovided in paragraph (b)(7), the Board maynot add to the roster an attorney who is not recommended by the Committee.

 

(5) Mentoring. If an attorneyis selected for the Appellate Roster on the conditionthat the attorney have a mentor, then the attorney must select a mentor who meets the qualifications set forth in paragraphs (b)(3)(A)?F). A mentor must have briefed the merits in at least three appeals within the past three years or in 12 appeals total. The attorney subject to the mentoring requirement must certify in each brief filed on behalf of an indigent individualthat the attorney was directly supervised in drafting the brief by a mentor qualified under paragraphs (b)(3)(A)?F). The attorney is not requiredto name the mentor in theircertification.

 

(6) Removal. The Board may at any time removean attorney from the Appellate Roster based on the attorney? qualifications, skills, experience, or prior performance in any appellate court, or theattorney? failure to maintain eligibility under paragraph (b)(8).

 

(7) Reconsideration of removal or non-reappointment. An attorney who isremoved from the Appellate Roster before the end of the attorney? five-year appointment or who is not reappointed to a subsequent term may petitionfor reconsideration by submitting a letter to theStanding Committee on Appellate Representation. The letter must be submitted within 28 days from the date of the noticeinforming the attorney of the removal or non-reappointment. The Committee will review all materials relevant to the attorney? petition and recommendto the Board of AppellateCourt Judges whether the attorney? removal or non-reappointment should be upheld. TheBoard of Appellate Court Judges will approve or disapprove the Committee? recommendations.

 

(8) Appointment term,CLE requirement, and reapplication.

(A) An attorney? Appellate Roster appointment term is five years.

(B) During an attorney? Appellate Roster term, the attorney must complete at least12 hours of continuing legal education on topics directlyrelevant to the attorney? Appellate Roster work.The attorney must certify completion of the hours at the time of reapplication and provide documentation of the hours andtopics completed.

(C) To maintaineligibility for appointment to provide indigentdefense services on appeal, an attorneymust reapply under the provisions of paragraph (b)(3) by September 1 of the attorney? fifth year on the AppellateRoster. The attorney must be recommended by the Committeeand reappointed to theAppellate Roster by the Board of Appellate Court Judges at the conclusion of the attorney? appointment term.

 

(9) Exemption. Attorneys employed by an indigent appellatedefense service provider entity or the Indigent AppellateDefense Division to provide indigent defense services on appeal are exempt from the requirement to be included on the Appellate Roster. This exemption does not apply to an attorney or an entitythat has contracted with an indigentdefense service provider to provideindigent defense services on appeal.

(A) Requirements for entity exemptstatus. In order to qualifyfor exempt status, an indigent appellate defense service providerentity or the Indigent Appellate Defense Division must certifyin writing every five years to the AppellateRepresentation Committee that theentity has:

(i) an appellate divisionwhose primary focus is appellaterepresentation;

(ii) a case management tracking system;

(iii) adequate administrative support;

(iv) one or more supervising attorneyswho are on the appellateroster; and

(v) oversight and supervision of attorneys who handle appellatecases.

(B) Inclusion in an entity?exemption. To be included in an entity?exemption, an attorney must be employedby the indigent appellate defenseservice provider entity. Independent contractors do not qualify under an indigentappellate defense service provider entity? exemption.

 

(c) Annual schedule. The Committee must meet at least annuallyand must submit its annual recommendations to the Board of AppellateCourt Judges by December 31. If the Committee determines that additional recommendations should be submitted to the Board of Appellate Court Judges, the Committee may call for additionalapplications at any time. The Board of Appellate Court Judges will at its next meeting thereafter approve or disapprovethe Committee? recommendations of attorneys to beincluded on the Appellate Roster.

 

(d) Contracts in effect beforethis rule? adoption. An attorney who, before this rule? adoption,contracted with a government entity to represent indigent individuals on appealis subject to the provisions of Rule 38B of the Utah Rules ofAppellate Procedure. Upon the contract? termination, expiration, or renewal, the attorney is subject to this rule.

 

Effective Date November 1st, 2021