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

Intent:

To establish astanding committee to assist the Board of Appellate Court Judges in determininga roster of indigent service provider attorneys who are eligible forappointment to represent indigent individuals on appeal to the Utah SupremeCourt and the Utah Court of Appeals.

Toestablish uniform terms and a method for appointing committee members.

To establish aschedule for recommending the appointment of indigent defense service provider attorneysto, or the removal of indigent defense service provider attorneys from, the AppellateRoster.

Definitions:

The terms?indigent defense service provider,? ?indigent individual,? and ?indigentdefense services? are defined in UtahCode Section 78B-22-102.

For purposes ofthis rule, ?indigent defense service provider entity? means a legal defenderoffice that is under contract to perform indigent defense services for one ormore counties in the state; ?indigent defense service provider attorney? meansan attorney who has been appointed to the Appellate Roster; and ?AppellateRoster? means the list of indigent service provider attorneys who are eligiblefor appointment to represent indigent individuals on appeal to the Utah SupremeCourt and the Utah Court of Appeals.

Applicability:

Thisrule shall apply to the internal operation of the Board of Appellate CourtJudges and the Committee on Appellate Representation and to courts of record incases involving indigent individuals.

Statement of the Rule:

(1) Establishment. The Standing Committeeon Appellate Representation is hereby established as a committee of the Boardof Appellate Court Judges.

(1)(A) Composition.The Committee shall consist of one attorney from the Office of General Counselof the Administrative Office of the Courts; one attorney from the CriminalAppeals Division of the Utah Attorney General?s Office; one active or retiredtrial court judge from either a district or juvenile court in the state; oneactive or retired appellate court judge; one private civil appellate attorney;two criminal defense appellate attorneys: at least one of whom is currentlypracticing in the area of indigent criminal appeals for an indigent defense providerentity; one attorney practicing in the area of juvenile delinquency defenseappeals; one attorney practicing in the area of child welfare proceedings asdefined in Rule 1(f)of the Utah Rules of Appellate Procedure; and one attorney practicing in thearea of termination of parental rights proceedings under Section78B-6-112 . The Director or designeeof the Indigent Defense Commission shall be an ex-officio, non-voting memberwho shall not participate in the committee?s recommendation of attorneys forthe roster.

(1)(B) Appointment.Committee members shall be appointed by the Supreme Court and serve staggeredfour-year terms. The Supreme Court shall select a chair from among theCommittee?s members. Judges who serve as members of the Committee generallyshall not be selected as chair. Committee members shall serve as officers ofthe court and not as representatives of any client, employer, or otherorganization or interest group. At the first meeting of the Committee in anycalendar year, and at every meeting at which a new member of the Committeefirst attends, each Committee member shall briefly disclose the general natureof his or her legal practice.

(1)(C) Vacancies.In the event of a vacancy on the Committee, the Supreme Court, afterconsultation with the Committee chair, shall appoint a new Committee memberfrom the same category as the prior Committee member to serve for the remainderof the unexpired term.

(1)(D) Absences.In the event that a Committee member fails to attend two consecutive Committeemeetings, the chair may notify the Supreme Court of those absences and mayrequest that the Supreme Court replace that Committee member.?

(1)(E) Administrativeassistance. The Administrative Office of the Courts shall coordinate staffsupport to the Committee, including the assistance of the Office of GeneralCounsel in research and drafting.

(2) Appellate Roster. The Board ofAppellate Judges shall create and maintain an appellate roster of indigentservice provider attorneys skilled in handling criminal, juvenile delinquency,child welfare proceedings as defined in Rule 1(f)of the Utah Rules of Appellate Procedure, and termination of parental rightsproceedings under Section 78B-6-112. .

(2)(A) Purpose of the Committee. The purpose of the Committee shall be torecommend to the Board of Appellate Court Judges attorneys for inclusion on anappellate roster of indigent defense service provider attorneys eligible forappointment by the courts of this state to represent indigent individuals onappeal before the Utah Supreme Court or the Utah Court of Appeals. Except asspecified in paragraph (2)(I) of this rule, onlyattorneys on the Appellate Roster shall be eligible for such courtappointments.

(2)(B) Committee recommendations. The Committee shall consider andrecommend attorneys for inclusion on the Appellate Roster based on theeligibility criteria listed in paragraph (2)(C) together with any other factorbearing on an applicant?s ethics, diligence, competency, abilities in briefingand oral advocacy, and willingness to fairly, efficiently, and effectivelyprovide appellate representation to indigent individuals on appeal. TheCommittee shall consider issues such as quality of briefing, the applicant?sfrequency of inadequate briefing, summary dismissals, or involuntarydismissals, and the applicant?s professionalism and civility. The Committee mayalso recommend the removal of an attorney from the Appellate Roster.

(2)(C) Eligibility criteria. To be considered for inclusion on the AppellateRoster, an applicant at a minimum shall complete an application in a formprovided by the Committee and:

(2)(C)(i) demonstrate that the applicanthas briefed the merits in at least three appeals within the past three years orin 12 appeals total, or is directly supervised by an attorney with thatexperience;

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

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

(2)(C)(iv)demonstrate ability to adequately and effectivelyraise and argue issues on appeal and comply with applicable court rules;

(2)(C)(v) certify that the attorney has not,within the preceding three years, been the subject of an order issued by anyappellate court imposing sanctions against counsel, discharging counsel, ortaking other equivalent action against counsel because of counsel?s substandardperformance before an appellate court;

(2)(C)(vi)not have been removed from the Appellate Roster withinthe past year;

(2)(C)(vii)submit at least two appellate briefs to the Committeewith a certification that the applicant was primarily responsible for draftingthe briefs;

(2)(C)(viii)submit a petition pursuant to Rule 55of the Utah Rules of Appellate Procedure if the person is applying to be on theAppellate Roster for appeals from child welfare proceedings;

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

(2)(C)(x)certify that the applicant has sufficient time andadministrative support to accept an appointment to provide indigent defenseservices for indigent individuals on appeal and to provide the effectiveassistance of counsel in every case and a willingness to commit those resourcesto that representation.

(2)(D) RosterSelection. The Board of Appellate Court Judges shall approve or disapprovethe recommendations of the Committee with respect to attorneys to be includedon the Appellate Roster. Except as provided in paragraph (2)(G),the Board may not add to the roster an attorney who is not recommended by theCommittee.? ??

(2)(E) Mentoring.If an attorney is selected for the Appellate Roster on the condition that theattorney have a mentor, then the attorney must select a mentor who meets thequalifications set forth in this rule at paragraphs (2)(C)(i)-(vi).A mentor must have briefed the merits in at least three appeals within the pastthree years or in 12 appeals total. The attorney subject to the mentoringrequirement shall certify in each brief filed on behalf of an indigent individualthat the attorney was directly supervised in drafting the brief by a mentorqualified under paragraphs (2)(C)(i)-(vi). Theattorney is not required to name the mentor in their certification.? ???

(2)(F) Removal.The Board may at any time remove an attorney from the Appellate Roster based onthe attorney?s qualifications, skills, experience, or prior performance in anyappellate court, or the attorney?s failure to maintain eligibility underparagraph (2)(H).

(2)(G) Reconsiderationof removal or non-reappointment. An attorney who is removed from the AppellateRoster before the end of the attorney?s three-year appointment or who is notreappointed to a subsequent term may petition for reconsideration in the formof a letter submitted to the Standing Committee on Appellate Representation. Theletter shall be submitted within 30 days from the date of the notice informingthe attorney of the removal or non-reappointment. The Committee shall reviewall materials relevant to the attorney?s petition and recommend to the Board ofAppellate Court Judges whether the attorney?s removal or non-reappointment shouldbe upheld. The Board of Appellate Court Judges shall approve or disapprove therecommendations of the Committee.? ?

(2)(H) Termof appointment and reapplication.

(2)(H)(i) Anattorney?s Appellate Roster appointment term is three years.

(2)(H)(ii)To maintain eligibility for appointment to provide indigent defense services onappeal, an attorney must reapply under the provisions of paragraph (2)(C) by September 1 of the attorney?s third year on the AppellateRoster. The attorney must be recommended by the Committee and reappointed tothe Appellate Roster by the Board of Appellate Court Judges at the conclusionof the attorney?s appointment term.

(2)(I) Exemption. Attorneys employed byan indigent defense service provider entity to provide indigent defenseservices on appeal are exempt from the requirement to be included on theAppellate Roster. This exemption does not apply to an indigent defense serviceprovider attorney who has contracted with a county in the attorney?s individualcapacity to provide indigent defense services on appeal.

(3) Annual Schedule. The Committee shallmeet at least annually and shall submit its recommendations to the Board ofAppellate Court Judges by December 31 each year. If the Committee determinesthat additional recommendations should be submitted to the Board of AppellateCourt Judges, the Committee may call for additional applications at any time.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.

(4) Contracts in effect before adoption of thisrule. An attorney who, before adoption of this rule, contracted with agovernment entity to represent indigent individuals on appeal is subject to theprovisions of Rule 38Bof the Utah Rules of Appellate Procedure. Upon termination, expiration, orrenewal of the contract, the attorney is subject to the provisions of this rule.

 

 

Effective October 8, 2019 pursuant to Rule11-105(5)

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