Chapter 355-9-1 Office Of Indigent Defense Services

ALABAMA DEPARTMENT OF FINANCE

ADMINISTRATIVE CODE

CHAPTER 355-9-1

OFFICE OF INDIGENT DEFENSE SERVICES

TABLE OF CONTENTS

355-9-1-.01 Creation Of Office Of Indigent Defense

Services ("OIDS")

355-9-1-.02 Director Of OIDS

355-9-1-.03 Availability Of Records In The Custody

And Control Of OIDS

355-9-1-.04 Time Limit For Submission Of Attorney Fee

Declarations To OIDS

355-9-1-.05 Dispute Resolution Process Regarding

Attorney Fee Declarations

355-9-1-.06 Billing Standards

355-9-1-.07 Employment Of Experts, Court Reporters,

And Investigators

355-9-1-.08 ndigent Defense Advisory Boards; Required

Attorney Qualifications

355-9-1-.09 Recoupment Of Attorney Fees

355-9-1-.10 Caseload Management Standards

355-9-1-.11 Minimum Qualifications And Requirements

For A Public Defender

355-9-1-.12 Standards For Establishing Contract

Counsel System

355-9-1-.01 Creation Of Office Of Indigent Defense Services

("OIDS").

The Office of Indigent Defense Services (known hereinafter as

"OIDS") was created as a division of the Alabama Department of

Finance by the legislature by Act 2011-678 ("the Act"). The

purpose of OIDS is to administer the system of defense for

criminal defendants or juveniles found by a court to be unable to

pay for legal representation in a trial or appellate proceeding.

Author: C. Roberts

Statutory Authority: Code of Ala. 1975, §41-4-322(h)

History: New Rule: Filed November 18, 2015; effective December

23, 2015; operative January 4, 2016.

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355-9-1-.02 Director Of OIDS.

OIDS shall have a director ("the Director"), chosen by the

Director of Finance as set out in §41-4-322(b) of the Code of

Alabama, as amended. The Director shall be responsible to develop

standards governing the provision of legal representation to

indigents. The standards are set out in §41-4-322(c), as amended.

The method or methods for delivering indigent defense services

shall be determined as provided in §41-4-322(d), as amended.

Author: C. Roberts

Statutory Authority: Code of Ala. 1975, §41-4-322(h).

History: New Rule: Filed November 18, 2015; effective December

23, 2015; operative January 4, 2016.

355-9-1-.03 Availability Of Records In The Custody And Control

Of OIDS.

Requests for the inspection and copying of records maintained in

the custody and control of OIDS may be made in person or by mail,

addressed to the Director at 100 North Union Street, Suite 680,

Montgomery, Alabama 36104. All rules promulgated by OIDS, as well

as all final orders, decisions, and opinions issued, if any, shall

be made available for public inspection and copying, at cost, at

the address set out above. Documents posted on the OIDS website

and available for download, may be downloaded and printed at no

cost by the public.

Author: C. Roberts

Statutory Authority: Code of Ala. 1975, §41-4-322(h).

History: New Rule: Filed November 18, 2015; effective December

23, 2015; operative January 4, 2016.

355-9-1-.04 Time Limit For Submission Of Attorney Fee

Declarations To OIDS.

In accordance with §15-12-2l(e) of the Code of Alabama, appointed

counsel shall submit a bill for services rendered no more than 90

days after the conclusion of the trial or ruling on a motion for a

new trial or after acquittal or other judgment disposing of the

case. The 90 day statutory period shall begin to run at the later

of the following - (1) acquittal of the defendant or (2) at

sentencing of the defendant or subsequent order of the Court that

disposes of any remaining issues not addressed at sentencing, i.e.

probation, restitution, etc. or (3) the trial court's ruling on

any postjudgment motion filed by either the prosecution or the

defendant which ruling starts the time for filing a notice of

appeal under Alabama law or rules of court or (4) the

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trial court's granting of a motion to withdraw or order removing

counsel from representation in the matter.

(a) Attorneys appointed to represent defendants in capital

murder cases may submit fee declarations on a semi-annual

basis for interim payment of work performed and expenses

incurred during the semi-annual period. An attorney seeking

interim payment must include a written notice with the fee

declaration informing OIDS of the semi-annual billing and

upload a copy of each prior interim billing submitted for that

case.

(b) In juvenile cases, the disposition date for the case shall

be date of the judge's final order of adjudication or the date

of the final disposition hearing or the date of the judge's

order disposing of all post-trial motions or hearings,

whichever date is the latest.

OIDS within 90 days of the judge’s final order of adjudication

of dependency. OIDS will accept fee declarations for post-

adjudication proceedings such as review hearings or permanency

determinations annually.

(d) Fee declarations must be submitted within 90 days of the

date a judge grants a timely filed motion to withdraw from a

case.

(e) Appointed counsel may submit a fee declaration before

final disposition on any case that is assigned to a court's

administrative docket or 60 days following a defendant's

"Failure to Appear" or if bound over to the Grand Jury without

action after one year. The fee declaration must be submitted

to OIDS prior to the case being placed on an active docket to

receive payment before final disposition. The 90 day

requirement does not apply where there has been no final

disposition.

(f) The failure of appointed counsel to submit a fee

declaration within the 90-day period, as set out above, shall

result in the denial of payment by OIDS. An attorney adversely

affected by OIDS action with respect to the 90-day period may

seek relief, as set out in 355-9-1-.05.

Author: C. Roberts

Statutory Authority: Code of Ala. 1975, §41-4-322(h).

History: New Rule: Filed November 18, 2015; effective December

23, 2015; operative January 4, 2016.

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355-9-1-.05 Dispute Resolution Process Regarding Attorney Fee

Declarations.

Any dispute regarding the compensation due to be paid to an

appointed attorney shall first be submitted in writing as a

request for reconsideration by the attorney to the Director.

Should the Director's decision with respect to the request for

reconsideration be adverse to the appointed attorney, the

appointed attorney may seek relief for the amount of compensation

by filing a claim with the State Board of Adjustment in accordance

with its statutes and rules, as found at Code of Ala. 1975,

§41-9-60 et seq. and at www.bdadj.alabama.gov, respectively.

Author: C. Roberts

Statutory Authority: Code of Ala. 1975, §41-4-322(h).

History: New Rule: Filed November 18, 2015; effective December

23, 2015; operative January 4, 2016.

355-9-1-.06 Billing Standards.

(a) Time recorded on a fee itemization submitted with a fee

declaration form shall be in increments of 0.10 hours (six

minutes), as follows:

1 to 6 minutes - 0.1 hours

7 to 12 minutes - 0.2 hours

13 to18 minutes - 0.3 hours

19 to 24 minutes - 0.4 hours

25 to 30 minutes - 0.5 hours

31 to 36 minutes - 0.6 hours

37 to 42 minutes - 0.7 hours

43 to 48 minutes - 0.8 hours

49 to 54 minutes - 0.9 hours

55 to 60 minutes - 1.0 hours

(b) Opening, closing, and final billing of a case file will be

paid a maximum of 0.5 hours in total. Should the total time for

the aforementioned activities exceed 0.5 hours due to

circumstances beyond the control of the attorney or for other

reason, the attorney may petition the director to approve payment

of time in excess of 0.5 hours.

direction of appointed counsel must be billed at the paralegal

rate of $20.00 per hour.

(d) An Attorney other than appointed com1sel may bill at the

statutory rate on the indigent matter provided that; (1) the

attorney is working at the direction of appointed counsel; (2) the

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attorney's assistance was required by circumstances beyond the

control of appointed counsel and (3) the name of the attorney must

be noted on the fee declaration.

(e) In juvenile and youthful offender cases, names or any

personally identifiable information of the child or parties to the

matter must be redacted. Fee declarations containing this

information, including uploaded supporting documents, will be

denied and appointed counsel must re-file for payment.

(f) Non-overhead expenses in excess of $300.00 must be approved by

court order in advance of being incurred. To be reimbursed,

appointed counsel must submit a fee declaration supported by copy

of court order, invoices and receipts. Non-overhead expenses may

be billed on an interim basis. All reimbursement will be in

accordance with Alabama Law and The State of Alabama Fiscal Policy

and Procedure.

Author: C. Roberts

Statutory Authority: Code of Ala. 1975, §41-4-322(h)

History: New Rule: Filed November 18, 2015; effective December

23, 2015; operative January 4, 2016.

355-9-1-.07 Employment Of Experts, Court Reporters, And

Investigators.

All requests for experts, court reporters, and investigators

(known collectively herein as "providers" or individually as

"provider") must be approved in advance by an order from the trial

judge before they perform any work or services. The date at which

the provider(s) can begin to perform work or services to be paid

by the State of Alabama is the date on which the trial judge signs

the order granting the request. In order to effect payment for

work and services performed by provider(s), the following

procedure must be followed:

(a) The appointed attorney must have filed a motion requesting

the services of a provider and the trial judge must have

issued an order approving each request.

(b) The appointed attorney must complete a certification that

the work or service submitted for payment has been performed

and completed.

Declaration (Form PFD-1) with a copy of the court order, the

attorney certification, and an itemized invoice attached

thereto. If the court's order is not specific as to the nature

of the services to be performed or as to payment terms for the

provider, the provider must attach a copy of the attorney's

motion requesting the services.

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(d) Fees to providers may be paid on an interim basis.

(e) Payment of expenses related to the employment of Experts,

Investigators and Court Reporters will be in accordance with

Alabama Law and the State of Alabama Fiscal Policy and

Procedure Manual.

(f) Note regarding court reporters -in-court appearance fee

for a court reporter is not payable from the Fair Trial Tax

fund and should not be submitted to OIDS for payment. Court

reporters are paid in accordance with Alabama Rules of

Judicial Administration (ARJA) Rule 29(B) and the court

reporter must file a Court Reporter Fee Declaration (Form

C-62C).

Author: C. Roberts

Statutory Authority: Code of Ala. 1975, §41-4-322(h).

History: New Rule: Filed November 18, 2015; effective December

23, 2015; operative January 4, 2016.

355-9-1-.08 ndigent Defense Advisory Boards; Required Attorney

Qualifications.

(1) Act 2011-678 established an Indigent Defense Advisory Board

("the Board") in each judicial circuit. Under the Act, the Board

is directed to, among other things, determine the method of

delivering indigent defense services to be used in its respective

circuit, which methods of delivery may include, but are not

limited to, the use of appointed counsel, contract counsel, or

public defenders or a combination of any of these. In choosing the

method of delivery of indigent defense services for a judicial

circuit, the Board "shall select the most efficient and effective

counsel system available in each county or circuit, or parts of

the county or circuit." (See Code of Ala. 1975, §41-4-322(d).) In

order to provide the most efficient and effective indigent defense

services, either by the appointment of counsel by a judge or the

selection of counsel under contract by the Board, the following

qualifications are mandatory:

(a) Each attorney appointed or selected to provide indigent

defense representation must -

1. Be a member in good standing with the Alabama State

Bar, and

2. Must complete a minimum of six (6) hours per year of

continuing legal education credits, approved by the

Alabama State Bar, in criminal law beginning after the

attorney is appointed or selected.

(b) Capital Murder - to act as Lead Counsel in a capital case,

the attorney, whether appointed or public defender, must, in

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addition to the mandatory qualifications in (a) above, possess

the following minimum qualifications:

1. Must have at least five (5) years of criminal

litigation experience.

2. Must be familiar with the Alabama Rules of

Professional Conduct, must be familiar with current

criminal practice and procedure in Alabama, must be

familiar with capital jurisprudence established by the

U.S. Supreme Court and the Supreme Court of Alabama;

3. Must have litigated a capital case to verdict, hung

jury, or plea as associate counsel, or have litigated

four (4) homicide cases to verdict, hung jury, or plea;

4. Must have substantial familiarity with, and experience

in the use of, expert witnesses and scientific and

medical evidence in litigation;

5. Must complete at least ten (10) hours of capital

defense related continuing legal education every two (2)

years.

case, the attorney, whether appointed or public defender, must

in addition to the mandatory qualifications in (a) above,

possess the following minimum qualifications:

1. Must have at least three (3) years of criminal

litigation experience;

2. Must be familiar with the Alabama Rules of

Professional Conduct, must be familiar with current

criminal practice and procedure in Alabama, must be

familiar with capital jurisprudence established by the

U.S. Supreme Court and the Supreme Court of Alabama;

3. Must have participated as trial counsel in at least

four (4) jury trials to verdict or hung jury;

4. Must have substantial familiarity with, and experience

in the use of, scientific and medical evidence in

litigation;

5. Must complete a capital murder seminar every two (2)

years.

(d) Class A Felonies - To act as defense attorney in a Class A

felony case, whether appointed, contract counsel, or public

defender, an attorney must meet the qualifications as

determined by the person or entity responsible to appoint or

select the attorney. In addition to the mandatory

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qualifications in (a), above, any appointment or selection

should take into account the following factors:

1. The amount of criminal litigation experience possessed

by the attorney;

2. The degree of familiarity with the Rules of

Professional Conduct and the current criminal practice

and procedure in Alabama; and

3. Whether the attorney has sufficient criminal trial

experience in light of the seriousness of criminal

charges constituting Class A felonies in Alabama.

(e) Class B Felonies - To act as defense attorney in a Class B

felony case, whether appointed, contract counsel, or public

defender; an attorney must meet the qualifications as

determined by the person or entity responsible to appoint or

select the attorney. In addition to the mandatory

qualifications in (a), above, any appointment or selection

should take into account the following factors:

1. The amount of criminal litigation experience possessed

by the attorney;

2. The degree of familiarity with the Rules of

Professional Conduct and the current criminal practice

and procedure in Alabama; and

3. Whether the attorney has sufficient criminal trial

experience in light of the seriousness of criminal

charges constituting Class B felonies in Alabama.

(f) Class C Felonies - To act as defense attorney in a Class C

felony case, whether appointed, contract counsel, or public

defender, an attorney must meet the qualifications as

determined by the person or entity responsible to appoint or

select the attorney. In addition to the mandatory

qualifications in (a), above, any appointment or selection

should take into account the following factors:

1. The amount of criminal litigation expe1ience possessed

by the attorney;

2. The degree of familiarity with the Rules of

Professional Conduct and the current c1iminal practice

and procedure in Alabama; and

3. Whether the attorney has sufficient criminal trial

experience in light of the seriousness of criminal

charges constituting Class C felonies in Alabama.

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(g) Juvenile Cases - To act as defense attorney in a Juvenile

case, whether appointed, contract counsel, or public defender,

an attorney must meet the qualifications as determined by the

person or entity responsible to appoint or select the

attorney. In addition to the mandatory qualifications in (a),

above, any appointment or selection should take into account

the following factors:

1. The amount of juvenile litigation experience possessed

by the attorney;

2. The degree of familiarity with the Rules of

Professional Conduct and the current criminal and

juvenile practice and procedure in Alabama possessed by

the attorney;

3. Whether the attorney has exhibited proficiency and

commitment to providing quality representation to

juvenile offenders; and

4. Whether the attorney has completed a minimum of three

(3) hours per year of continuing legal education credits,

approved by the Alabama State Bar, in juvenile law or

practice.

(h) Guardian Ad Litem (GAL) - To act as GAL, an attorney must

meet the qualifications as determined by the person or entity

responsible to appoint or select the attorney. In addition to

the mandatory qualifications in (a), above, any appointment or

selection should take into account the following factors:

1. The degree of familiarity with the Rules of

Professional Conduct and the current criminal and

juvenile practice and procedure in Alabama possessed by

the attorney;

2. Whether the attorney has completed a minimum of three

(3) hours of continuing legal education credits approved

by the Alabama State Bar and specifically related to GAL

practice; and

3. Whether the attorney has completed GAL training and

certification required by the Alabama Administrative

Office of Courts (AOC). Said certification must be

maintained on a continuous basis as reported by AOC.

(i) Misdemeanors and Traffic - To act as defense attorney in a

misdemeanor or traffic case, whether appointed, contract

counsel, or public defender, an attorney must meet the

qualifications as determined by the person or entity

responsible to appoint or select the attorney. In addition to

the mandatory qualifications in (a), above, any appointment or

selection should take into account the following factors:

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1. The degree of familiarity with the Rules of

Professional Conduct and the current criminal practice

and procedure in Alabama; and

2. Whether the attorney has exhibited professionalism,

proficiency, and commitment to providing quality

representation to offenders charged with misdemeanors and

traffic offenses.

(j) Appeals - To act as defense attorneys in an appeal whether

appointed, contract counsel, or public defender, an attorney

must meet the qualifications as determined by the person or

entity responsible to appoint or select the attorney. In

addition to the mandatory qualifications in (a), above, any

appointment or selection should take into account the

following factors:

1. The amount of appellate experience possessed by the

attorney; and

2. The degree of familiarity with the Rules of Appellate

Procedure, Rules of Professional Conduct and the current

criminal practice and procedure in Alabama.

Author: C. Roberts

Statutory Authority: Code of Ala. 1975, §41-4-322(h)

History: New Rule: Filed November 18, 2015; effective December

23, 2015; operative January 4, 2016.

355-9-1-.09 Recoupment Of Attorney Fees.

If the court determines that the defendant is, or will be, able to

reimburse the State of Alabama for the full or partial cost of

legal services provided, the court may order payment of said cost,

or a portion thereof, to the circuit clerk's office. The amount to

be paid by defendant shall be the actual amount ordered by the

court or, if no amount is stated in the court's order, the

following amount:

Class A Felony $1,000.00

Class B. Felony $ 750.00

Class C Felony $ 500.00

Juvenile $ 500.00

Misdemeanor/Probation revocation $ 250.00

Author: C. Roberts

Statutory Authority: Code of Ala. 1975, §41-4-322(h)

History: New Rule: Filed November 18, 2015; effective December

23, 2015; operative January 4, 2016.

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355-9-1-.10 Caseload Management Standards.

It is the policy of OIDS, in accordance with the Act, that the

caseload of counsel providing legal services to indigent

defendants should allow each lawyer to give each client the time

and attention necessary to ensure effective representation. In

order to assure that caseloads are managed adequately so that the

quality of legal representation for indigent criminal defendants

is not compromised, the following caseload standards are adopted

for those attorneys representing indigent criminal defendants, and

should not be exceeded:

(a) Two hundred (200) felony cases per attorney per year; OR

(b) Four hundred (400) misdemeanor and traffic offense cases

per attorney per year; OR

year; OR

(d) One hundred (100) open juvenile dependency cases per

attorney per year; OR

(e) One hundred (100) GAL cases per attorney per year; OR

(f) Thirty-six (36) appeals to an appellate court considering

a case on a record and on briefs per attorney per year.

It is expected that an attorney will handle cases in more than one

of the types set out in (a) through (f), above. However, in any

year, an attorney should not accept a caseload of any combination

of the types set out above that, due to the volume of cases,

compromises the ability of the attorney to render quality

representation.

Author: C. Roberts

Statutory Authority: Code of Ala. 1975, §41-4-322(h).

History: Authority: Code of Ala. 1975, §41-4-322(h). History:

New Rule: Filed November 18, 2015; effective December 23, 2015;

operative January 4, 2016.

355-9-1-.11 Minimum Qualifications And Requirements For A

Public Defender.

Should a Board determine that the method for delivering indigent

defense services in its county or circuit is by the establishment

of a Public Defender's office and the selection and appointment of

a Public Defender, it shall do so in accordance with the Act. The

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minimum qualifications and requirements for the position of Public

Defender shall be:

(a) The individual sought to be appointed must be a member in

good standing with the Alabama State Bar and any other bar

association of which the individual is a member;

(b) The individual sought to be appointed must have a minimum

of eight (8) years of criminal practice experience, preferably

with criminal trial experience;

ability to effectively administer the Public Defender's

office;

(d) The individual sought to be appointed may not practice

before a judge in the same county or judicial circuit within

the 4th degree of consanguinity (first cousin), inclusive;

(e) The individual sought to be appointed must become a

resident of the county or circuit in which he or she will

serve as Public Defender within 90 days of taking office.

Author: C. Roberts

Statutory Authority: Code of Ala. 1975, §41-4-322(h)

History: New Rule: Filed November 18, 2015; effective December

23, 2015; operative January 4, 2016.

355-9-1-.12 Standards For Establishing Contract Counsel

System.

Should a board determine that the method for delivering indigent

defense services in its county or circuit is by the establishment

of a Contract Counsel System, it shall do so in accordance with

the Act and consistent with these rules. The selection process

shall be determined by the Board consistent with the

qualifications enumerated in the Act and these rules. All

Contracts are to be negotiated and attorneys selected by the

Board, subject to the approval of the Presiding Circuit Judge and

the Director.

Author: C. Roberts

Statutory Authority: Code of Ala. 1975, §41-4-322(h)

History: New Rule: Filed November 18, 2015; effective December

23, 2015; operative January 4, 2016.

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