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Rule 38B. Qualifications forappointed appellate counsel.

(a) In all appeals where a party is entitled to appointedcounsel, only an attorney proficient in appellate practice may be appointed torepresent such a party before either the Utah Supreme Court or the Utah Courtof Appeals.

(b) The burden of establishing proficiency shall be oncounsel. Acceptance of the appointment constitutes certification by counselthat counsel is eligible for appointment in accordance with this rule.

(c) Counsel is presumed proficient in appellate practice ifany of the following conditions are satisfied:

(1) Counsel has briefed the meritsin at least three appeals within the past three years or in 12 appeals total;or

(2) Counsel is directly supervisedby an attorney qualified under subsection (c)(1); or

(3) Counsel has completed theequivalent of 12 months of full time employment, either as an attorney or as alaw student, in an appellate practice setting, which may include but is notlimited to appellate judicial clerkships, appellate clerkships with the UtahAttorney General?s Office, or appellate clerkships with a legal services agencythat represents indigent parties on appeal; and during that employment counselhad significant personal involvement in researching legal issues, preparingappellate briefs or appellate opinions, and experience with the Utah Rules ofAppellate Procedure.

(d) Counsel who do not qualify for appointment under thepresumptions described above in subsection (c) may nonetheless be appointed torepresent a party on appeal if the appointing court concludes there is acompelling reason to appoint counsel to represent the party and furtherconcludes that counsel is capable of litigating the appeal. The appointingcourt shall make findings on the record in support of its determination toappoint counsel under this subsection.

(e) Notwithstanding counsel?s apparent eligibility forappointment under subsection (c) or (d) above, counsel may not be appointed torepresent a party before the Utah Supreme Court or the Utah Court of Appealsif, during the three-year period immediately preceding counsel?s proposedappointment, counsel was the subject of an order issued by either appellatecourt imposing sanctions against counsel, discharging counsel, or taking otherequivalent action against counsel because of counsel?s substandard performancebefore either appellate court.

(f) The fact that appointed counsel does not meet therequirements of this rule shall not establish a claim of ineffective assistanceof counsel.

(g) An attorney who, before adoption of Rule11-401 of the Utah Code of Judicial Administration, contracted with agovernment entity to represent indigent individuals on appeal is subject to theprovisions of this rule. Upon termination, expiration, or renewal of thecontract, the attorney is subject to the provisions of Rule11-401.

Effective October 8,2019

AdvisoryCommittee Note

?Qualifications for appointed appellate counselare governed by Utah Code of Judicial Administration (CJA) Rule 11-401. Rule38B applies only to certain appointed attorneys operating under a contractpredating the adoption of CJA Rule 11-401. Upon termination, expiration, orrenewal of the contract, the attorney is subject to CJA Rule 11-401exclusively.