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Rule11-401. Standing Committee on Appellate Representation

Intent:

To establish a standing Committee to assistthe Board of Appellate Court Judges to determine a roster of attorneys eligiblefor appointment to represent indigent parties on appeal to the Utah SupremeCourt and the Utah Court of Appeals.

To establish uniform termsand a uniform method for appointing committee members.

To establish a schedule forrecommending the appointment of attorneys to, or the removal of attorneys from,the appellate roster.

Applicability:

This rule shall apply to the internaloperation of the Board of Appellate Court Judges and the Committee on AppellateRepresentation and to district and appellate courts in indigent criminal cases,juvenile delinquency, and child welfare proceedings.

Statementof the Rule:

(1) Establishment.The Standing Committee on Appellate Representation is hereby established as acommittee of the Board of Appellate Court Judges.

(1)(A)Composition. The Committee shallconsist of one member of the Office of General Counsel of the AdministrativeOffice of the Courts; one member from the Criminal Appeals Division of the UtahAttorney General?s Office; one active or retired trial court judge from eithera District or Juvenile court in the state; one active or retired appellatecourt judge; one private civil appellate attorney; two criminal defenseappellate attorneys: at least one of whom is currently practicing in the areaof indigent criminal appeals in a legal defender?s office under UtahCode ? 77-32-302(2)(a) or (2)(b); one attorney practicing inthe area of juvenile delinquency defense appeals; and one attorney practicingin the area of child welfare defense appeals.

(1)(B)Appointment. Committee members shallbe appointed by the Supreme Court and shall serve staggered four-year terms.The Supreme Court shall select a chair from among the Committee?s members.Judges who serve as members of the Committee generally shall not be selected aschair. Committee members shall serve as officers of the court and not asrepresentatives of any client, employer, or other organization or interestgroup. At the first meeting of the Committee in any calendar year, and at everymeeting at which a new member of the Committee first attends, each Committeemember shall briefly disclose the general nature of his or her legal practice.

(1)(C)Vacancies. In the event of a vacancyon the Committee due to death, incapacity, resignation or removal, the SupremeCourt, after consultation with the Committee chair, shall appoint a newCommittee member from the same category as the prior Committee member to servefor the remainder of the unexpired term.

(1)(D)Absences. In the event that aCommittee member fails to attend two consecutive Committee meetings, the chairmay notify the Supreme Court of those absences and may request that the SupremeCourt replace that Committee member.?

(1)(E)Administrative assistance. TheAdministrative Office of the Courts shall coordinate staff support to theCommittee, including the assistance of the Office of General Counsel inresearch and drafting and the coordination of secretarial support.

(2) AppellateRoster. The Board of Appellate Judges shall create and maintain anappellate roster of attorneys skilled in handling criminal, juveniledelinquency, and abuse, neglect and dependency appeals.

(2)(A)Purpose of the Committee. Thepurpose of the Committee shall be to recommend to the Board of Appellate CourtJudges attorneys for inclusion on an appellate roster of attorneys eligible forappointment by the courts of this state to represent indigent parties on appealbefore the Utah Supreme Court or the Utah Court of Appeals pursuant to Rule 38Bof the Utah Rules of Appellate Procedure. Except as specified in paragraphs (2)(G) of this rule, only attorneys on the roster shall beeligible for such court appointments.

(2)(B)Committee recommendations. The Committeeshall consider and recommend attorneys for inclusion on the appellate rosterbased on the eligibility criteria listed in subsection (2)(C) together with anyother factor bearing on an applicant?s ethics, diligence, competency, andwillingness to fairly, efficiently, and effectively provide appellaterepresentation to indigent parties on appeal. The Committee may also recommendthe removal of an attorney from the roster.

(2)(C)Eligibility criteria. To beconsidered for inclusion on the roster, an applicant must complete anapplication in a form provided by the Committee and must:

(2)(C)(i) comply with the requirements ofrule 38B of the Utah Rules of Appellate Procedure, sections (b) through (e);

(2)(C)(ii)be a member of the Utah Bar in good standing;

(2)(C)(iii)submit at least two appellate briefs to the Committeewith a certification that the applicant was substantially responsible fordrafting the briefs;

(2)(C)(iv)demonstrate knowledge of appellate practice as shownby experience, training, or legal education;

(2)(C)(v)provide citations for all appellate decisions in whichthe applicant was counsel of record; and

(2)(C)(vi)certify that the applicant has sufficient time andadministrative support to accept an appointment to represent indigent partieson appeal and to provide the effective assistance of counsel in every case anda willingness to commit those resources to that representation.

(2)(D)Roster Selection. The Board ofAppellate Court Judges shall approve or disapprove the recommendations of theCommittee with respect to attorneys to be included on the appellate roster. TheBoard may also at any time remove an attorney from the appellate roster basedon an attorney?s qualifications, skills, experience, and prior performance inthe Utah appellate courts. The Board may not add to the roster an attorney whowas not recommended by the Committee.

(2)(E)Reconsideration. An attorney whosubmitted an application to the Committee but was not chosen by the Board forinclusion on the appellate roster, or who was removed from the roster, may filea petition for reconsideration in the form of a letter submitted to the Board ofAppellate Court Judges. The petitioner shall submit an original letter andtwelve copies.

(2)(F)Retention. To maintain eligibility,an attorney must be recommended by the Committee and reappointed by the Boardof Appellate Court Judges every two years. An attorney desiring to maintaineligibility shall submit a renewal request to the Committee by January 1 of theyear in which the attorney reports his or her MCLE compliance to the Utah StateBar; provided, however, that the first such request shall not be due earlierthan the first January 1 at least two years after the date on which theattorney originally qualified to be on the roster. The renewal request shallinclude the following:

(2)(F)(i) a certification that theattorney is a member of the Utah Bar in good standing;

(2)(F)(ii)a certification that the attorney has not, within the preceding three years,been the subject of an order issued by either appellate court imposingsanctions against counsel, discharging counsel, or taking other equivalent actionagainst counsel because of counsel?s substandard performance before eitherappellate court;

(2)(F)(iii)a showing that the attorney has maintained competencein appellate practice, which showing may be achieved by:

(2)(F)(iii)(a)submitting two appellate briefs filed with appellatecourts during the previous two years, together with a certification that theattorney was substantially responsible for drafting the briefs;

(2)(F)(iii)(b)certification that the attorney has attended at least six hours of CLE dealingwith the area of appellate practice in which the attorney has acceptedcourt-appointments on appeal in the previous two years; or

(2)(F)(iii)(c)an equivalent demonstration of continued competence.

(2)(G)Exemption. Notwithstanding any otherprovision of this rule, any attorney currently employed in a county or otherregional legal defender?s office under UtahCode ? 77-32-302(2)(a) or (2)(b) to provide court-appointedrepresentation and defense resources on appeal, shall be independently eligiblefor appointment to represent indigent parties on appeal. This paragraph doesnot apply to an attorney who has contracted with a county in the attorney?sindividual capacity to provide court-appointed representation and defenseresources on appeal.

(2)(H)Disqualification. Nothing in thisrule is intended to supplant or create an exception to the disqualificationprovisions of Rule 38B of the Utah Rules of Appellate Procedure.

(3) AnnualSchedule. The Committee shall meet at least annually and shall submit itsrecommendations to the Board of Appellate Court Judges by February 1 of eachyear. The Board of Appellate Court Judges shall at its next meeting thereafterapprove or disapprove the recommendations of the Committee with respect toattorneys to be included on the appellate roster.

 

Effective October 29, 2018pursuant to CJA Rule 11-105