C. Financial Eligibility

The basic holding of both Gideon v. Wainwright (felony matters) and Argersinger v. Hamlin (misdemeanors) is that financial inability to pay for criminal defense counsel should not be a bar to justice. Where defendants cannot pay for an attorney when facing loss of liberty or life, the state must.

Client eligibility issues include these:

1. Financial Criteria

Commentary. Although all persons who are financially unable to obtain adequate representation without suffering hardship must be provided representation at public expense, translating this principle into practical working guidelines is difficult. While the ABA Defense Services Standards make no effort to define need or hardship, some state standards set specific criteria, such as income levels defined by the federally established poverty level (Nebraska, North Dakota). Most states, however, specify client eligibility financial standards in their state legislation. See, e.g., Wisconsin Statutes Annotated §977.07(2) and Wyoming Statutes §7-6-103(c), Rules of Criminal Procedure, Rule 44(d).

ABA Standards for Criminal Justice: Providing Defense Services

Standard 5-7.1. Eligibility; ability to pay partial costs

Counsel should be provided to persons who are financially unable to obtain adequate representation without substantial hardship. Counsel should not be denied because of a person's ability to pay part of the cost of representation, because friends or relatives have resources to retain counsel, or because bond has been or can be posted.

NLADA Guidelines for Legal Defense Systems in the United States

1.5 Financial Eligibility Criteria

Effective representation should be provided to anyone who is unable, without substantial financial hardship to himself or to his dependents, to obtain such representation. This determination should be made by ascertaining the liquid assets of the person which exceed the amount needed for the support of the person or his dependents and for the payment of current obligations. If the person's liquid assets are not sufficient to cover the anticipated costs of representation as indicated by the prevailing fees charged by competent counsel in the area, the person should be considered eligible for publicly provided representation. The accused's assessment of his own financial ability to obtain competent representation should be given substantial weight.

(a) Liquid assets include cash in hand, stocks and bonds, bank accounts and any other property which can be readily converted to cash. The person's home, car, household furnishings, clothing and any property declared exempt from attachment or execution by law, should not be considered in determining eligibility. Nor should the fact of whether or not the person has been released on bond or the resources of a spouse, parent or other person be considered.

(b) The cost of representation includes investigation, expert testimony, and any other costs which may be related to providing effective representation.

1.6 Method of Determining Financial Eligibility

The financial eligibility of a person for publicly provided representation should be made initially by the defender office or assigned counsel program subject to review by a court upon a finding of ineligibility at the request of such person. Any information or statements used for the determination should be considered privileged under the attorney-client relationship.

A decision of ineligibility which is affirmed by a judge should be reviewable by an expedited interlocutory appeal. The person should be informed of this right to appeal and if he desires to exercise it, the clerk of the court should perfect the appeal. The record on appeal should include all evidence presented to the court on the issue of eligibility and the judge's findings of fact and conclusions of law denying eligibility.

NLADA Standards for the Administration of Assigned Counsel Systems

Standard 2.3 Financial Eligibility

a. Any person who cannot retain private counsel without substantial hardship to that person, or to his or her family, shall be eligible to receive the assistance of assigned counsel in all situations in which a constitutional, statutory or other right to counsel exists.

b. Rules, regulations and procedures concerning the determination of initial eligibility and/or continuing eligibility shall not interfere with assigned counsel's independence to advocate for his or her clients on any relevant matter, including the question of their financial status. Individual assigned counsel shall not have responsibility for determining initial or continuing eligibility of clients.

c. Rules, regulations and procedures concerning the determination of initial eligibility and/or continuing eligibility shall not require assigned counsel to make any disclosures of facts concerning his or her clients' financial status beyond those disclosures mandated by the binding ethical rules of the jurisdiction.

National Conference of Commissioners on Uniform State Laws, Model Public Defender Act

Section 2. Right to Representation, Services, and Facilities

…

(c) A needy person's right to a benefit under subsection (a) or (b) is not affected by his having provided a similar benefit at his own expense, or by his having waived it, at an earlier stage.

Section 4. Determination of Financial Need

…

(b) In determining whether a person is a needy person and the extent of his ability to pay, the court may consider such factors as income, property owned, outstanding obligations, and the number and ages of his dependents. Release on bail does not necessarily disqualify him from being a needy person. In each case, the person, subject to the penalties for perjury, shall certify in writing or by other record such material factors relating to his ability to pay as the court prescribes.

National Advisory Commission on Criminal Justice Standards and Goals, Report of the Task Force on the Courts

Standard 13.2. Payment for Public Representation

¶2 The test for determining ability to pay should be a flexible one that considers such factors as amount of income, bank account, ownership of a home, a car, or other tangible or intangible property, the number of dependents, and the cost of subsistence for the defendant and those to whom he owes a legal duty of support. In applying this test, the following criteria and qualifications should govern:

1. Counsel should not be denied to any person merely because his friends or relatives have resources adequate to retain counsel or because he has posted, or is capable of posting, bond.

2. Whether a private attorney would be interested in representing the defendant in his present economic circumstances should be considered.

3. The fact that an accused on bail has been able to continue employment following his arrest should not be determinative of his ability to employ private counsel.

4. The defendant's own assessment of his financial ability or inability to obtain representation without substantial hardship to himself or his family should be considered.

Georgia Indigent Defense Council, Guidelines for the Operation of Local Indigent Defense Programs

Guideline 1.5 Financial Eligibility

Eligible accused persons include all applicants for an attorney with a net income below the Poverty Guidelines as established and revised annually by the United States Department of Health and Human Services and published in the Federal Register. The local committee may set and revise the eligibility standards in accordance with, but no lower than, the Poverty Guidelines.

The following special needs of a family unit may be deducted from net income in determining eligibility:

(1) child care expenses for working custodial parents,

(2) legally required support payments to dependents, including alimony for the support of a child/children,

(3) unusual, excessive, or extraordinary medical or other expenses.

"Net income" shall include only a client's take-home pay, which is the gross income earned by a client minus those deductions required by law or as a condition of employment.

"Family unit" includes the defendant, his/her spouse, if living together, any minors who are unemployed and unmarried, and any infirm or permanently disabled person living with the defendant and for whom the defendant has assumed financial responsibility. The income of a minor who is attending school full time, but has after-school employment or does odd jobs, shall not be attributed to that of the family unit. Other persons, if living within the same household, may be deemed members of the family unit.

In the event an accused person is discovered to have been ineligible at the time of the appointment of an attorney, the court shall be notified. The court may discharge the appointed attorney and refer the matter to the private bar. The attorney should be paid for the time spent on the case and recoupment sought from the ineligible person.

Regardless of the prima facie eligibility on the basis of income, a person who has sufficient assets that are easily converted to cash by sale or mortgage may not be qualified for representation if it would not impose a substantial financial hardship to convert them to cash.

Counsel may be appointed for any accused person who is unable to obtain counsel due to special circumstances such as emergency, hardship, or documented refusal of the case by members of the private bar because of financial inability to pay for counsel.

Indiana Public Defender Commission, Standards for Indigent Defense Services in Non-Capital Cases

C. Eligibility for Appointment of Counsel

The comprehensive plan shall include the applicable rules and procedures for the determination of eligibility for the appointment of counsel at public expense, and shall contain the following provisions:

1. Substantial hardship. Counsel will be provided to all persons who are financially unable to obtain adequate representation without substantial hardship to themselves or their families.

2. Determining Eligibility. The determination of eligibility for the appointment of counsel will include an estimation as to the costs of retaining private counsel and a determination as to whether the person's disposable income and liquid assets are adequate to cover the costs of retaining private counsel.

3. Confidentiality. If the accused is questioned about indigency in circumstances where the attorney-client privilege does not apply, the accused shall be advised that any statements made or information given may be used against him or her.

Kansas Board of Indigents' Defense Services, Permanent Administrative Regulations

105-4-1. Determination of eligibility

(a) At the commencement of proceedings against any defendant, the defendant may make application for legal representation at state expense by submitting, to the court, an affidavit of indigency on forms provided by the board. The court shall determine if the defendant is indigent, based upon consideration of the following factors, as defined in K.A.R. 105-4-2:

(b) An eligible indigent defendant is a person whose combined household income and liquid assets equal less than the sum of the defendant's reasonable and necessary living expenses plus the anticipated cost of private legal representation.

(c) The court may also consider any special circumstances affecting the defendant's eligibility for legal representation at state expense.

(d) If the court determines that the defendant is financially able to employ counsel, after counsel has been appointed, the court shall require the defendant to reimburse the board in accordance with the provisions of K.S.A. 1982 Supp. 22-4510 for all or part of the expenditures made on the defendant's behalf.

105-4-2. Definition of terms

Terms used to determine eligibility for indigents' defense services shall have the following meanings:

(a) Liquid assets. The defendant's liquid assets shall be defined as cash in hand, stocks and bonds, accounts at financial institutions, real property or homestead having a net value greater than $50,000, and any other property that can be readily converted to cash, with the following exceptions.

The net value of the homestead shall be determined as the fair market value less the mortgage, other encumbrances, and the reasonable cost of sale. The net value of any property transferred after the date of the alleged commission of the offense shall be included in the determination of the defendant's liquid assets.

(b) Household income. The defendant's household income shall be defined as the defendant's income and the income of all other persons related by birth, marriage or adoption who reside with the defendant. Income shall include the total cash receipts, before taxes, from all resources, including money wages and the net receipts from nonfarm or farm self-employment. Further, income shall include regular payments from a governmental income maintenance program, alimony, child support, public or private pensions, annuities, and income from dividends, interest, rents, royalties, or periodic receipts from estates or trusts.

(c) The defendant's reasonable and necessary living expenses. The board shall calculate a table which establishes the amounts the board will allow as the defendant's reasonable and necessary expenses incurred to support the defendant and the defendant's household. The table shall represent 125% of the federal poverty income guidelines that are adopted in accordance with 42 USC 9847 and are published in the Federal Register. The board shall cause this table of reasonable and necessary living expenses to be published in the Kansas Register in May of 1984 and at such times thereafter as the federal poverty income guidelines are revised. Revisions in the federal poverty income guidelines shall not be adopted until considered and approved by the board.

(d) Transfer of property. If the defendant has transferred property after the date of the alleged commission of the offense, the court shall determine the reason for the transfer of property and shall determine whether adequate monetary consideration was received. If adequate monetary consideration was not received, the court shall presume that the transfer was made for the purpose of establishing eligibility unless the defendant furnishes clear and convincing evidence that the transfer was made exclusively for another purpose. If a transfer was made either for the purpose of establishing eligibility or without adequate monetary consideration, and the property is reconveyed to the defendant or an adjustment is made by which the defendant receives full value, the defendant shall, if otherwise qualified, be eligible to receive legal representation at state expense.

105-4-5. Partial indigency

(a) The court shall find any defendant to be partially indigent if the defendant is able to pay some part of the cost of legal representation and if the payment or payments does not impose manifest hardship on the defendant or the defendant's household. Any defendant may be found to be partially indigent if the defendant's combined household income and liquid assets are greater than the defendant's reasonable and necessary living expenses but less than the sum of the defendant's reasonable and necessary living expenses plus the anticipated cost of private legal representation.

(b) A defendant found to be partially indigent may be ordered by the court to pay, to the clerk of the district court, a sum not more than the amount expended by the board of behalf of the defendant.

Nebraska Commission on Public Advocacy, Standards for Indigent Defense Services in Capital and Non-Capital Cases

VII. Nebraska Commission on Public Advocacy Standards to Determine Indigency

These rules shall apply to any party who has a right to be represented by an attorney of the Commission on Public Advocacy. The eligibility for appointment of an attorney at public expense shall be determined in conformance with these rules.

A. Definition of Terms

The following definitions shall apply to these rules:

B. Affidavit of Indigency

A party who desires to proceed as an indigent represented by an attorney appointed by the court shall complete an affidavit under oath concerning his or her financial resources (FORM 1). The party shall be advised of the penalties for perjury. The defendant has an ongoing duty to update the affidavit as his or her financial status changes.

C. Determination of Indigency

If the court finds that the party has not effectively waived his or her right to counsel, and the party has not arranged to obtain counsel, the court shall receive the affidavit of indigency and may question the party under oath. After reviewing the information contained in the affidavit and, if applicable, the party's testimony, the court shall determine whether the party is indigent under these rules. The court shall record its finding on the affidavit of indigency (FORM 1) and file it with the papers in the case. The county or prosecuting attorney shall have no standing in the determination of indigency or the appointment of counsel.

D. Assignment of Counsel/Notice of Assignment

If the court finds that a party is indigent, the court shall appoint an attorney or the Commission on Public Advocacy to provide representation for the party. The Clerk of the Court shall promptly complete and transmit a notice of assignment of counsel (FORM 2) and shall file a copy in the case file.

E. Review of Indigency Determination

North Dakota Legal Counsel for Indigents Commission, Indigent Defense Guidelines and Procedures

1. Guideline for Determining Eligibility for Indigent Defense Services

Section A. Adults

Consideration should be given to:

1. income resources;

2. non-income resources;

3. expenses and liabilities; and

4. estimated cost of defense services

of the defendant in determining eligibility for defense services.

1. Income Resources

These guidelines for gross income levels are offered as income levels at or below which eligibility for defense services should be considered.

Household Size
1
2
3
4
Annual Gross Income 10,063 13,563 17,062 20,5653
Monthly Gross Income 839 1,130 1,422 1,714
Weekly Gross Income 210 283 356 429
Household Size
5
6
7
8
Annual Gross Income 24,063 27,563 31,063 34,563
Monthly Gross Income 2,005 2,297 2,589 2,880
Weekly Gross Income 501 574 647 720

(Add $3,500 for each additional member in households of more than eight.)

These income levels reflect 125% of the official poverty level threshold as defined by the Department of Health and Human Services (63 F.R. 9236, February 24, 1998). They are provided for information only and are updated annually to reflect 125% of the poverty level threshold as published by the Department of Health and Human Services. The income levels should be adjusted to meet local standards. For persons with incomes above these levels, consideration should be given to the exceptional factors in Section A.4.

The commission has undertaken to provide judges annually with the current income guidelines.

2. Non-Income Resources

3. Expenses and Liabilities

4. Exceptional Factors

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2. Eligibility Determination

Commentary. Only four sets of standards discuss by whom and how client eligibility is determined. These include the ABA and NAC among the four national standards and two states, Georgia and North Dakota. These standards do not endorse a single approach, citing the defender, the court, and the defense system administration, among other possibilities. The North Dakota guidelines are notable for setting out procedures for privately retained counsel to raise indigency questions.

ABA Standards for Criminal Justice: Providing Defense Services

Standard 5-7.3. Determination of eligibility

Determination of eligibility should be made by defenders, contractors for services, assigned counsel, a neutral screening agency, or by the court. When the eligibility determination is not made by the court, confidentiality should be maintained, and the determinations should be subject to review by a court at the request of a person found to be ineligible. A questionnaire should be used to determine the nature and extent of the financial resources available for obtaining representation. If at any subsequent stage of the proceedings new information concerning eligibility becomes available, eligibility should be redetermined.

National Advisory Commission on Criminal Justice Standards and Goals, Report of the Task Force on the Courts

Standard 13.3. Initial Contact with Client

The first client contact…should be governed by the following:

…

2. If, at the initial appearance, no request for publicly provided defense services has been made, and it appears to the judicial officer that the accused has not made an informed waiver of counsel and is eligible for public representation, an order should be entered by the judicial officer referring the case to the public defender, or to appointed counsel. The public defender or appointed counsel should contact the accused as soon as possible following entry of such an order.

3. Where, pursuant to court order or a request by or on behalf of an accused, a publicly provided attorney interviews an accused and it appears that the accused is financially ineligible for public defender services, the attorney should help the accused obtain competent private counsel in accordance with established bar procedures and should continue to render all necessary public defender services until private counsel assumes responsibility for full representation of the accused.

Georgia Indigent Defense Council, Guidelines for the Operation of Local Indigent Defense Programs

Guideline 1.4 Determination of Financial Eligibility

The financial eligibility of a person applying for publicly provided counsel should be determined by the Administrator of the indigent defense program or designee.

Upon a determination of indigency the Administrator or designee shall immediately notify the public defender, contract attorney or the panel attorney designated to represent the person, the indigent accused, the sheriff, the clerk and the district attorney of the appointment of counsel for the indigent accused. The original authorization of appointment shall be filed with the indictment, warrant or petition in the case; a copy of the authorization shall be forwarded to the clerk, the public defender, contract attorney or panel attorney appointed to represent the indigent defendant, the indigent defendant, the sheriff and the district attorney.

For jurisdictions in which defendants are brought before a judicial officer within 72 hours of arrest, are advised of their right to appointed counsel, are permitted to orally request appointment of counsel, are questioned as to their financial eligibility, and are appointed a lawyer immediately if eligible, the Council will waive the requirement that an application be made in writing. Notice should be given as specified above.

North Dakota Legal Counsel for Indigents Commission, Indigent Defense Guidelines and Procedures

IV. Guidelines for Determining Eligibility for Indigent Defense Services

…

In order to aid case processing, and meet the court's constitutional responsibilities, the following policing should be considered:

1. Close questions regarding defendant's indigency should be resolved in favor of eligibility. Close questions between partial eligibility and full eligibility should be resolved in favor of full eligibility. This will assist case processing, protect constitutional rights, and will be balanced by more active recoupment procedures.

2. Early appointment of counsel is desirable. Counsel should be appointed at the earliest feasible time (as soon as possible and no later than the initial appearance on the criminal charge, and definitely within three working days of the arrest) at the request of the defendant or on the court's own motion.

3. The eligibility determinations for defense services based on financial resources should not impose an extensive time burden on court officials.

4. The attached information forms should be used as the means of providing the court with all relevant information for a review of the appointment decision (See Attachments immediately following p. 1.10). No formula is suggested. Judges are encouraged to recognize general indications of poverty in welfare recipients or previous appointment of defense counsel as indicated on the short form application. The additional financial information is available for consultation in unusual cases at the request of the judge or counsel.

5. The administrative costs of making eligibility determinations should be considered.

6. Defendants should be reminded of the penalties for giving false information in the eligibility determination process.

7. Early in the proceedings, defendants must be notified by the judge presiding in the case and by appointed defense counsel that all defendants are subject to recoupment for the fees and expenses of counsel, and of the established rate of these expenses at the end of the proceeding, including juvenile proceedings. See Section 29-07-01.1, NDCC.

8. Before an eligibility determination is made, the judge should inquire closely regarding the defendant's efforts to obtain the service of a private attorney.

9. Any indication of anticipatory transfer of assets by defendant to create the conditions for eligibility for defense services should be scrutinized and dealt with decisively.

10. Except in exceptional circumstances, any anticipated change to indigent defense counsel from private counsel midway in a case should be avoided by a finding of eligibility for appointed defense counsel and appointment of the same counsel and recourse to partial eligibility payments or recoupment procedures.

11. The judge may wish to inquire periodically throughout the proceedings regarding substantial changes in defendant's financial status. However, this information should not be permitted to disrupt the flow of court proceedings, but should be considered in the civil collection process at the end of the court proceedings.

9. Guidelines for Attorney Withdrawal in Criminal Cases

Application of Guidelines

These guidelines apply to district courts and the Supreme Court when considering…a privately retained attorney's motion for a declaration of indigency status which is accompanied by a request by the moving attorney to be appointed by the court as indigent defense counsel.

Purpose of Guidelines

It is of primary importance to the members of the bar and to the public that a lawyer who undertakes representation of a client in criminal proceedings, whether initially retained by the defendant or appointed by the court, continue to represent the client at least through the trial stage of the proceedings, unless the continued representation would result in the violation of a disciplinary rule. Continuity of counsel in criminal proceedings should be mandated in order to protect the rights of the defendant by avoiding wherever possible the adverse effect and possible prejudice to the client caused by an attorney's withdrawal.

Guidelines

In order to eliminate the delay in criminal cases and expense associated with the substitution of counsel prior to trial, the following policies should be adopted:

…

2. A motion for withdrawal which is based upon the indigency status of the defendant and accompanied by a request for court appointed counsel should not be considered by the court as a circumstance which justifies the removal of counsel and the substitution of court appointed counsel, nor should a motion for the declaration of indigency status on behalf of the defendant justify the appointment by the court of the moving counsel as assigned counsel, unless either motion is filed in writing with the court at least five days before the preliminary hearing or the waiver thereof.

3. When a motion to withdraw as counsel is filed in writing with the court at least five days before the preliminary hearing or the waiver thereof, and the defendant meets the financial eligibility requirements for indigent defense services, the court should appoint new counsel to provide indigent defense services for the defendant. If the court has contracted for indigent defense services, the case may be assigned under the provisions of the contract.

4. When a motion for the declaration of indigency status on behalf of the defendant is filed in writing with the court at least five days before the preliminary hearing or the waiver thereof; the motion includes a request that the moving counsel be appointed by the court as assigned counsel; and the defendant meets the financial eligibility requirements for indigent defense services, the court in its discretion may appoint the moving counsel or appoint new counsel to provide indigent defense services for the defendant.

5. Privately retained counsel involved in criminal proceedings should be allowed to file in writing with the court a motion for the declaration of indigency status on behalf of the defendant anytime during the interval after five days before the preliminary hearing or the waiver thereof and the start of the trial. If the defendant at the time of the hearing on the motion meets the financial eligibility requirements for indigent defense services:

4. Model Contract for Counsel Services for Indigent Defendants

(16) Non-Privileged Information:

The FIRM shall advise all clients serviced by this contract that information regarding their financial circumstances which is probative of determining indigency is not privileged information, unless the information is probative of the guilt or innocence of the client in which case the information shall be protected by the lawyer-client privilege.

The FIRM has the continuing responsibility to bring to the attention of the judge who is presiding in the matter any non-privileged information regarding the financial resources of defendants which bears on their eligibility for counsel services under this contract.

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3. Contribution and Reimbursement Requirements

Commentary. Defendant eligibility for defense services is not always a black/white proposition. Some defendants can pay a portion of the defense costs without suffering "substantial hardship" but cannot afford all the costs. Most national standards and three of the state standards (Georgia, Indiana, North Dakota) include provisions for defendant contribution to the costs of public defense.

A related question is whether a defendant who has received publicly funded defense services should later be required to pay for the services should his or her financial condition improve. Only the ABA Defense Services Standards speak to this issue. The North Dakota guidelines do, however, provide for recoupment in the event that financial eligibility is later found to have been erroneous. See also, Gwinnett Judicial Circuit Internal Operating Procedure 98-5, G2.2(c), "Eligibility of Accused," which provides for appointment when eligibility is unclear and reimburses for "all or a portion of the actual costs" if later found ineligible.

ABA Standards for Criminal Justice: Providing Defense Services

Standard 5-7.2. Reimbursement, notice and imposition of contribution

(a) Reimbursement of counsel or the organization or the governmental unit providing counsel should not be required, except on the ground of fraud in obtaining the determination of eligibility.

(b) Persons required to contribute to the costs of counsel should be informed, prior to an offer of counsel, of the obligation to make contribution.

(c) Contribution should not be imposed unless satisfactory procedural safeguards are provided.

NLADA Guidelines for Legal Defense Systems in the United States

1.7 Partial Eligibility

If the accused is determined to be eligible for defense services in accordance with approved financial eligibility criteria and procedures, and if, at the time that the determination is made, he is able to provide a limited cash contribution to the cost of his defense without imposing a substantial financial hardship upon himself or his dependents, such contribution should be required as a condition of continued representation at public expense.

(a) The defender office or assigned counsel program should determine the amount to be contributed under this section, but such contribution should be paid directly into the general fund of the state, county, or other appropriate funding agency. The contribution should be made in a single lump sum payment immediately upon, or shortly after, the eligibility determination.

(b) The amount of contribution to be made under this section should be determined in accordance with predetermined standards and administered in an objective manner; provided, however, that the amount of the contribution should not exceed the lesser of (1) ten (10) percent of the total maximum amount which would be payable for the representation in question under the assigned counsel fee schedule, where such a schedule is used in the particular jurisdiction, or (2) a sum equal to the fee generally paid to an assigned counsel for one trial day in a comparable case.

NLADA Standards for the Administration of Assigned Counsel Systems

Standard 2.4 Contribution and Recoupment

a. Persons eligible for representation by assigned counsel (Standard 2.3) shall not be asked to contribute toward, nor to reimburse the jurisdiction for, the cost of assigned counsel.

b. Jurisdictions that do require payment by eligible persons of some portion of the cost of assigned counsel shall establish a procedure for determining the amount of contribution to be paid. This procedure shall be implemented prior to or early in representation by assigned counsel, and shall include a hearing on the ability of the person to pay.

c. Any payment by or on behalf of a person represented by assigned counsel toward the cost of representation shall be made to a fund or through a mechanism established for that purpose, and not directly to assigned counsel. Assigned counsel shall not be responsible for collection of payment.

d. Payment toward the costs of representation by assigned counsel shall never be made a condition of probation or other sentence-related supervision.

National Conference of Commissioners on Uniform State Laws, Model Public Defender Act

Section 4. Determination of Financial Need

…

(c) To the extent that a person covered by section 2 is able to provide for an attorney, the other necessary services and facilities of representation, and court costs, the court may order him to provide for their payment.

National Advisory Commission on Criminal Justice Standards and Goals, Report of the Task Force on the Courts

Standard 13.2. Payment for Public Representation

¶1 An individual provided public representation should be required to pay any portion of the cost of the representation that he is able to pay at the time. Such payment should be no more than an amount that can be paid without causing substantial hardship to the individual or his family. Where any payment would cause substantial hardship to the individual or his family, such representation should be provided without cost.

Georgia Indigent Defense Council, Guidelines for the Operation of Local Indigent Defense Programs

Guideline 1.6 Recovery from Defendant of Payment for Legal Representation

If the accused is determined to be eligible for defense services in accordance with approved financial eligibility criteria and procedures, and if, at the time that the determination is made, he/she is able to provide a cash contribution to the cost of his/her defense without imposing a substantial financial hardship upon defendant or dependents, such contribution may be required as a condition of continued representation at public expense. The indigent defense administrator or designee should determine the amount to be contributed. The contribution shall be paid directly to the fund for indigent defense of the affected county. A defendant who disagrees with a required contribution shall be provided a hearing by the court. If a defendant enters a nolo contendere, first offender, or guilty plea or is convicted the court may impose as a condition of probation repayment of all or a portion of the county's cost for providing legal representation if it does not impose a substantial financial hardship upon defendant or dependents, with payment to be made through the probation department to the fund for indigent defense of the affected county.

Indiana Public Defender Commission, Standards for Indigent Defense Services in Non-Capital Cases

Standard D. Payment by Accused of Defense Costs

The comprehensive plan shall contain the policies and procedures for ordering indigent persons in criminal cases to pay some or all of the costs of defense services under I.C. 88-9-11.5, and shall specify the procedures for determining the actual costs to the county for defense services provided to the accused.

North Dakota Legal Counsel for Indigents Commission, Indigent Defense Guidelines and Procedures

1. Guidelines for Determining Eligibility for Indigent Defense Services

Section C. Partial Eligibility

Defendants may be found to be partially eligible for defense services. However, consideration should be given to avoiding complex financial or collection arrangements and any payment responsibility which could disrupt case processing responsibilities of the court.

Specific consideration should be given to the following factors:

a. Collection of defendant's contribution by prepayment should be considered to avoid administrative burdens on court personnel. Percentage payment requirements should be discouraged to avoid financial uncertainty and administrative problems. Lump sum payments should be based on present ability to pay.

b. All payments should be made directly to the county or state which pays for appointed counsel. No payment directly to counsel should be permitted.

c. Defendant should be notified that partial payment is not a waiver of recoupment procedures.

3. Guidelines for Defendant Reimbursement of Indigent Defense Costs

The Commission strongly encourages judges to closely examine the financial status of defendants when appointment of counsel, based upon alleged indigency, is requested or considered. The hasty appointment of counsel for defendants who have financial resources to partially or entirely bear the cost of privately retained counsel results in an inefficient allocation of indigent defense resources and compromises the ability to provide constitutionally required counsel services for those who are in fact indigent. Appropriate appointment of counsel should reduce the need for aggressive reimbursement efforts. However, if reimbursement of indigent defense costs is undertaken, all such efforts should be in compliance with applicable statutory requirements.

Model Agreement for Collection Agency Services for Defendant Reimbursement of Indigent Defense Costs

_________________________, ("COLLECTOR") and ______________________, State's Attorney of ___________________________ County ("CLIENT") agree that the CLIENT's accounts placed with the COLLECTOR are subject to the terms and conditions of the following agreement.

  1. Prior to CLIENT's decision to initiate collection effort, or the Court's direction to do so, COLLECTOR will assist CLIENT in gathering information concerning the employment status, resources and assets of potential accounts.

  2. Collection effort will be commenced and continue on accounts during the entire period such accounts are held by COLLECTOR. Collection activities must be in compliance with federal, state and local laws or regulations, including the fact that COLLECTOR shall, if required, at all times be licensed by the proper state authority.

  3. Collections made by COLLECTOR on CLIENT's designated accounts for _________________ county will be deposited within ______ days in a trust account maintained in a reputable bank acceptable to CLIENT. Such collections, less COLLECTOR feeds held in trust by COLLECTOR, are the property of __________________ county and are not available for any other use by COLLECTOR or COLLECTOR's other clients.

    Collections made by COLLECTOR on CLIENT's designated accounts for the state of North Dakota will be deposited immediately in a trust account maintained in a reputable bank accepted to CLIENT. Such collections, less COLLECTOR fees held in trust by COLLECTOR, are the property of the state or North Dakota and re not available for any other use by COLLECTOR or COLLECTOR's other clients.

  4. All collections made by COLLECTOR on CLIENT's accounts for _________________ county and the state of North Dakota will be remitted respectively to the _________________ county treasurer and the state treasurer within ____ days, less COLLECTOR's collection fee, accompanied by remittance advice, consisting of the: account number, name, date payment was received by COLLECTOR, gross amount of collection, collection fee due COLLECTOR, and net amount remitted. A copy of the remittance advice will be sent simultaneously to CLIENT.

  5. CLIENT agrees to provide COLLECTOR with information on all direct payments received by CLIENT from accounts placed for collection with COLLECTOR. COLLECTOR will prepare a statement containing the account number, name, gross amount of direct payment to CLIENT and collection fee due COLLECTOR. This statement must be combined with the appropriate remittance advice listing collections made by COLLECTOR. COLLECTOR shall deduct the collection fee due COLLECTOR on payments made direct to CLIENT from the amount due CLIENT on collections made by COLLECTOR.

  6. Status reports on all accounts must be supplied to CLIENT by COLLECTOR quarterly, beginning _________________________, and upon request.

  7. CLIENT agrees to pay the COLLECTOR as its sole compensation a contingent fee equal to (a) ________ percent on first assignment: (b) ________ percent on accounts requiring the following types of special collection effort: legal action, forwarding to other Collection Agencies; or (c) ________ percent on all second assignments.

    Costs incurred by COLLECTOR in instituting legal action may be recovered by COLLECTOR if such costs have been added to the balance originally due by decision of the court, prior to remitting to CLIENT the proceeds of collections made on the account as a result of legal action.

    In the event CLIENT credits a customer's account with the full balance thereof by way of an adjustment, such accounts must be returned by COLLECTOR to CLIENT and no fee will be paid to COLLECTOR. In the event the amount of any credit adjustment is less than the outstanding balance, no contingent fee is payable to the COLLECTOR hereunder with respect to the amount of such adjustment only.

    Collector agrees that it will not settle any customer account for less than the total amount of the balance due without first obtaining written authorization from CLIENT.

  8. COLLECTOR shall keep CLIENT advised, when requested, of the status of legal actions instituted hereunder, and shall furnish copies of summons, pleadings, orders, citations, judgments, and all other papers filed by either party in the legal action when requested to do so by CLIENT.

    In the event any action, complaint, or counterclaim is instituted or interposed by the debtor against CLIENT, COLLECTOR shall immediately advise CLIENT of same, and forward copies of all pleadings or other papers by it or its attorneys.

  9. Audits of COLLECTOR may be performed from time to time by CLIENT or persons retained by client and may include a review of collection effort, maintenance of trust account, adequacy of cash controls, promptness of recording and remitting payments, compliance with this agreement and any other normal audit procedures and tests.

  10. Comparative Profit & Loss and Balance Sheet Statements on the business of the COLLECTOR, properly certified by an independent auditor, must be supplied to CLIENT by COLLECTOR no later than 90 days after the close of the COLLECTOR's calendar or fiscal year, if requested by the CLIENT.

  11. Accounts paid by CLIENT with COLLECTOR for collection may be withdrawn by CLIENT at any time, by either oral or written request. Upon receipt of such requests, COLLECTOR shall return the account along with all documents and records pertaining to such account. COLLECTOR also agrees to cause any suit instituted by it to be settled or dismissed, as CLIENT may direct. Bankrupt accounts must be returned immediately to CLIENT by COLLECTOR with proper notation. No compensation will be paid COLLECTOR on any returned or withdrawn accounts.

  12. COLLECTOR hereby agrees to indemnify and hold CLIENT harmless from any loss, damage, attorney's fees and court costs which CLIENT may suffer due to any efforts by COLLECTOR to collect referred accounts. COLLECTOR agrees to save CLIENT harmless from any liability resulting from acts, errors, or omissions by COLLECTOR.

  13. COLLECTOR will provide CLIENT with written evidence of insurance naming CLIENT as an additional insured and containing a provision that the carrier will notify CLIENT at least 10 days in advance of the termination or cancellation of coverage or any material change in coverage, in carriers, and limits acceptable to CLIENT, in the following areas:

      A. Personal Injury Liability Insurance, Including Contractual Liability

      (To include, but not limited to, false arrest, detention, accusation, imprisonment or malicious prosecution. Also libel, slander, defamation or violation of rights of privacy, wrongful entry or eviction, other invasion of right of private occupancy, or abuse of process.)

      B. Comprehensive General Liability Insurance, Including Contractual Liability

      C. Workmen's Compensation and Occupational Disease Insurance, Including Employers Liability Insurance

      (To comply with laws of the State(s) in which the work is to be performed or elsewhere as may be required. Employers Liability Insurance must be provided with a limit of not less than $50,000.00.)

      D. Automobile Liability Insurance (owned or non-owned)

      E. Employee Dishonesty Bond

  14. This agreement is effective as of the date shown in effect until terminated as hereinafter provided.

    Either party may terminate this agreement by giving the other party at least 30 days prior written notice of date of termination; provided, however, that CLIENT may terminate this agreement immediately in the event COLLECTOR violates any of the terms or provisions of this agreement, or if CLIENT in its sole judgment, determines there has been an adverse change in COLLECTOR's financial condition. Termination or cancellation of this agreement by either party does not affect the collection, enforcement or validity of any accrued obligations owing between the parties. In the event of termination, COLLECTOR shall promptly turn over to CLIENT all accounts placed with COLLECTOR, together with all documents and records pertaining to such accounts. In the event COLLECTOR refuses to turn over such documents and records, CLIENT has the right to enter the premises of the COLLECTOR for the purpose of recovering such documents and records. COLLECTOR shall also promptly turn over to CLIENT the amount of all collections made on CLIENT accounts previously remitted to CLIENT, less the applicable collection fee.

  15. Except as otherwise provided herein or by law, neither this agreement nor any of its rights, duties or obligations, or payments due or to become due, hereunder, may at any time be assigned, sold, or pledged by the COLLECTOR.

    COLLECTOR has the right to forward any accounts to other collection agencies. However, CLIENT is not responsible for any cost incurred either by COLLECTOR or by any person designated by COLLECTOR with respect to the collection of such accounts. CLIENT liability hereunder is limited to the fee payable to COLLECTOR as specified in paragraph 7 above. In the event CLIENT is required to pay such costs, the amount thereof must be deducted from the contingent fees payable to the collector hereunder.

    In the event accounts are forwarded by COLLECTOR to other agencies, then COLLECTOR agrees to be responsible to CLIENT for the amounts collected by such other agencies.

  16. Nothing contained in this agreement requires CLIENT to place any set number or type of accounts with COLLECTOR and CLIENT is expressly given the right to place as many or as few accounts with COLLECTOR as it may from time to time determine, including the right to place no accounts even though this agreement may be still in force. This agreement does not give COLLECTOR the exclusive right to collect CLIENT's accounts and CLIENT is free to enter into such other agreements as it may choose for the collection of its accounts.

  17. COLLECTOR at the request of CLIENT shall state in writing the names of all of its employees, agents and attorneys working on any of CLIENT's accounts at the time of such request. CLIENT at its sole discretion may then request that certain employees, agents and attorneys of COLLECTOR not perform any further work on CLIENT's accounts, which request must be granted by COLLECTOR.

  18. Nothing contained herein creates an employer-employee relationship, a partnership or joint venture between parties and COLLECTOR's only relationship with CLIENT is that of an independent contractor.
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4. Publicly Provided Support Services for Non-Indigent Clients

Commentary. Some standards authorize public funding of defense support services to clients of privately retained counsel. This is consistent with standards that provide for client contribution to the costs of defense services. Only the ABA Defense Services Standards and the Indiana standards explicitly provide for public support of non-indigent clients.

ABA Standards for Criminal Justice: Providing Defense Services

Standard 5-1.4. Supporting services

…[S]upporting services necessary for providing quality legal representation should be available to the clients of retained counsel who are financially unable to afford necessary supporting services.

Indiana Public Defender Commission, Standards for Indigent Defense Services in Non-Capital Cases

N. Court Authorized Expenditures for Non-Indigent Persons

The comprehensive plan shall authorize expenditures for investigative, expert, or other services for a person who has retained private counsel for trial or appeal when the person is unable to pay for the services and such services are necessary to prepare and present an adequate defense. Such services are eligible for reimbursement from the public defense fund.

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