H. Assigned Counsel Systems
Assigned counsel plans are simply lists of attorneys who have agreed to accept and who are qualified to represent clients in criminal cases. They are widely used, especially in rural areas. Plans can be either formal or informal. Formal plans are those administered by a full-time manager who supervises the list of attorneys eligible for court appointment; ensures that assignments are appropriate; reviews attorney qualifications; and protects the independence of plan attorneys. Informal plans, often referred to as "ad hoc," are often no more than lists assembled by trial courts of local attorneys willing to take on criminal work. The judge responsible for court appointment controls the list and how it is used.
This section includes standards on the following topics:
1. Integrated defense system plan
2. Plan administrator
3. Attorney panel qualifications
4. Rotation of assignments
5. Attorney compensation
6. Attorney expenses
7. Related provisions1. Integrated Defense System Plan
Commentary. Since assigned counsel plans are responsible for the representation of so many defendants, all the national standards (except those limited to contract services) specifically address the administration of these plans. Of the several state standards in this compendium, three (Georgia, Indiana, and Kansas) also address assigned counsel. Additional examples of assigned counsel standards include these:
- Arkansas Public Defender Commission, Minimum Standards, Attorney Qualifications Certification Criteria (1987)
- Alameda County Bar Association Court Appointed Attorneys' Program (1988)
- Massachusetts Supreme Judicial Court, Rule 3.10 (1993)
- Michigan Sixth Circuit Court of Appeals Administrative Order 1996-2, Plan for Appointing Lawyers to Represent Defendants (1996)
- Oregon Judicial Department, Policy Statement, Indigent Defense Programs (1990)
- Appellate Defender Commission, Michigan Appellate Assigned Counsel System Regulations (1985, revised 1999)
ABA Standards for Criminal Justice: Providing Defense Services
Standard 5-2.1. Systematic Assignment
The plan for legal representation should include substantial participation by assigned counsel. That participation should include a systematic and publicized method of distributing assignments. Except where there is a need for an immediate assignment for temporary representation, assignments should not be made to lawyers merely because they happen to be present in court at the time the assignment is made. A lawyer should never be assigned for reasons personal to the person making assignments.
NLADA Guidelines for Legal Defense Systems in the United States
2.3 Ad Hoc Appointment of Counsel
Appointment of counsel on a random or ad hoc basis is explicitly rejected as an appropriate means of furnishing legal representation in criminal cases.
NLADA Standards for the Administration of Assigned Counsel Systems
Standard 3.1 Establishment of Legal Representation Plan
a. Provision of assigned counsel to eligible persons shall be made according to a written plan consistent with these standards.
b. Jurisdictions that rely in whole or in part upon assigned counsel for the provision of defense services shall consider whether and how to combine assigned counsel with one or more other methods of providing representation. Three alternative systems are set out in Standards 3.1.A through 3.1.C below.
Standard 3.1.A Assigned Counsel in All Eligible Cases
Jurisdictions which have no defender office and which do not contract with any entity to provide defense services shall establish an assigned counsel plan, consistent with these Standards, for affording quality representation to all eligible persons (Standard 2.1).
Standard 3.1.B Mixed Delivery System Including Assigned Counsel
a. Jurisdictions which choose to utilize a defender office and/or contracting entity in conjunction with assigned counsel to provide defense services to eligible persons shall establish a coordinated plan for delivery of defense services.
b. The plan shall delegate to assigned counsel a substantial portion of all eligible cases, as well as those cases which the defender office and/or contracting entity cannot handle due to conflicts of interest.
c. None of the defense entities in such a system shall be precluded from providing representation in any particular classification of case.
Standard 3.1.C Assigned Counsel for Conflicts Only
Jurisdictions which choose to utilize a defender office and/or contracting entity as the primary method of providing defense services to eligible persons, and rely on assignment of private counsel for cases which pose a conflict of interest to the primary entity (or entities), shall establish a coordinated plan for the assignment of counsel in those conflict cases.
National Conference of Commissioners on Uniform State Laws, Model Public Defender Act
Section 13. Court Assigned Attorneys
If a court assigns an attorney under section 3 (d) or 6, it shall prescribe a reasonable rate of compensation for his services based on the complexity of the issues, the time involved, and other relevant considerations, and shall determine the direct expenses, necessary to representation, for which he should be reimbursed. Payment or reimbursement shall be made out of the [appropriate fund] of the state.
National Advisory Commission on Criminal Justice Standards and Goals, Report of the Task Force on the Courts
Standard 13.5. Method of Delivering Defense Services
Services of a full-time public defender organization, and a coordinated assigned counsel system involving substantial participation of the private bar, should be available in each jurisdiction to supply attorney services to indigents accused of crime. Cases should be divided between the public defender and assigned counsel in a manner that will encourage significant participation by the private bar in the criminal justice system.
Standard 13.15. Providing Assigned Counsel
The public defender office should have responsibility for compiling and maintaining a panel of attorneys from which a trial judge may select an attorney to appoint to a particular defendant. The trial court should have the right to add to the panel attorneys not placed on it by the public defender. The public defender's office also should provide initial and inservice training to lawyers on the panel and support services for appointed lawyers, and it should monitor the performance of appointed attorneys.
Georgia Indigent Defense Council, Guidelines for the Operation of Local Indigent Defense Programs
Guideline 2.2 Method of Providing Counsel
The local governing committee shall propose to the Council a plan for a local indigent defense program, either a public defender system, a panel of private attorneys, a legal aid and defender society, a contract system or a combination of the above to provide adequate legal defense for indigents accused of felonies, or misdemeanors.
Guideline 2.4 Panel Attorney Program
The local committee may elect to provide indigent defense services through a panel attorney program using qualified attorneys in good standing with the State Bar of Georgia selected by the committee. The appointment of attorneys and the assignment of cases should be made as follows:
(a) Appointments of private attorneys shall be made on an impartial and equitable basis;
(b) The cases shall be distributed among the attorneys to ensure balanced workloads through a rotation system;
(c) More difficult or complex cases shall be assigned to attorneys with sufficient levels of experience and competence to afford adequate representation;
(d) Less experienced attorneys should be assigned cases which are within their capabilities, but should be given the opportunity to expand their experience under supervision; and
(e) Cases in which the death penalty is sought shall be assigned only to attorneys of sufficient experience, skill and competence to render effective assistance of counsel to defendants in such cases. The American Bar Association "Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases" may be referred to as a suggestion for the determination of the experience, skill and competence of the attorneys.
Indiana Public Defender Commission, Standards for Indigent Defense Services in Non-Capital Cases
H. Compensation of Assigned Counsel
The comprehensive plan shall provide that counsel appointed on a case-by-case basis for trial or appeal shall submit a claim for services and reimbursement for expenses.
Kansas Board of Indigents' Defense Services, Permanent Administrative Regulations
105-3-1. Panel of Attorneys
(a) The administrative judge of each district shall compile a list of volunteer attorneys eligible for assignment to represent indigent defendants for each county in the district. The list shall be known as the panel for indigent defense services.
(b) The administrative judge shall revise the panel annually, as incoming attorneys register with the clerk of the district court and when removal or withdrawal of attorneys from the panel or any other cause makes revision appropriate.
(c) Each attorney on the voluntary panel shall accept felony appointments for a minimum period of one year, with renewable one-year service terms thereafter. The administrative judge may waive this requirement for good cause shown.
(d) In compiling the list, the administrative judge shall consider the criteria contained in K.A.R. 105-3-2, the training, the resources and the experience of each attorney. The judge may consider any other relevant factor or factors relating to the attorney's ability to provide effective assistance of counsel to indigent defendants.
(e) An administrative judge may refuse to place an attorney on a panel. Should the administrative judge refuse to place an attorney on a panel, that judge shall promptly notify the attorney and the board of this decision. The decision shall become effective upon notice to the attorney and shall remain effective until the board or administrative judge places the attorney on the panel.
(f) An attorney who is refused placement on a panel may inform the board that the attorney wishes to appear and offer evidence for placement on the panel at a hearing before the board. Any such evidence shall be reviewed by the board for determination of whether or not the administrative judge abused that individual's discretion in refusing to place the attorney on the panel. The hearing shall be conducted as a summary proceeding.
2. Plan Administrator
Commentary. Most of the national standards that address assigned counsel systems require that there be an administrator. The only state standard providing for administration of the assigned counsel system at trial (Georgia) places that responsibility with the Public Defender Office. Michigan places it for appellate purposes with the Michigan Appellate Assigned Counsel Administrator (Michigan Supreme Court Administrative Order 1989-3, In re the Appointment of Appellate Assigned Counsel). These standards are detailed with the standards relating to financial eligibility procedures and informing clients of right to counsel.
ABA Standards for Criminal Justice: Providing Defense Services
Standard 5-2.1 Systematic Assignment
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Administration of the assigned-counsel program should be by a competent staff able to advise and assist the private attorneys who provide defense services.
NLADA Guidelines for Legal Defense Systems in the United States
2.14 Qualifications, Conditions of Employment, and Role of the Administrator
An assigned counsel program should be administered by a qualified attorney licensed to practice in the jurisdiction where the system operates. In addition, the qualifications of the administrator should include, but not be limited to, the following: extensive experience in the field of criminal defense; experience in administration; ability to work cooperatively with other elements of the criminal justice system while retaining an independence of attitude to promote and protect the proper rendering of defense services; ability to maintain proper relations with the private bar; and, where the assigned counsel program co-exists with a defender system which has a separate administrator, the ability to maintain a cooperative working relationship with the defender system.
The functions of the administrator should include, but not be limited to, the following: developing and executing operational policy and control of the system; assisting the governing body in discharging its responsibilities; further assisting the governing body in the development of the budget, and in planning and establishing fee schedules and fiscal controls; acquiring such staff as is necessary to carry out the mission of the system; designing the internal operational and administrative controls necessary for the orderly disposition of cases; designing and implementing orientation and training programs for assigned counsel; and developing access to supporting services.
The administrator should have the authority to select the attorneys who will comprise the assigned counsel panel; to suspend or dismiss panel members for cause, subject to the review of the governing body; to hire and discharge such staff as is necessary to operate the system; to monitor the quality of the services being rendered and to take appropriate measures to maintain a competent level of services; to approve expenditures for the acquisition of supporting services; and to approve the payment of attorney fee vouchers. However, requests for fees exceeding the recommended maximum, or appeals from the administrator's action, should be received by a panel of attorneys appointed by the governing board.
The following terms of employment should apply to the assigned counsel administrator. The administrator's salary should be sufficient to attract a capable person and should be at least as high as that of the chief prosecutor in the area served. The administrator and staff should be allowed reasonable expenses to participate in continuing education programs and bar association and defender association functions. The administrator should serve for a definite term of years which should be no less than three nor greater than six years and should be eligible for reappointment for successive terms. The administrator should not be subject to removal from office in the course of a term without good cause being shown and should be afforded a hearing before the governing body.
NLADA Standards for the Administration of Assigned Counsel Systems
Standard 3.3.1 Position of Administrator
The Board shall appoint an Administrator who shall implement policy and manage the Assigned Counsel Program, except when the legal representation plan requires that the Director of the defender office also act as Administrator, and the plan provides for the independence of the Director/Administrator from the judiciary and funding source (Standard 2.2).
Standard 3.3.2 Qualifications of Administrator
a. The Administrator shall be an attorney licensed to practice in the jurisdiction or jurisdictions in which the Assigned Counsel Program operates. The experience of the Administrator shall include extensive work in the criminal defense field and in administration. He or she shall have a reputation for integrity and commitment to program principles.
b. The Administrator shall be appointed on merit alone and shall be dismissed only for good cause found upon a hearing before the Board.
Standard 3.3.3 Employment Status and Pay of Administrator
a. The office of Administrator shall be a full-time position whenever feasible; a full-time Administrator shall not engage in the private practice of law.
b. The Administrator shall be appointed for a stated term of office and shall be compensated at a rate not less than the local presiding judge, chief prosecutor and, where applicable, the chief defender.
Standard 3.3.4 Functions of Administrator
The Administrator shall implement Program policy and manage Program operations.
Standard 3.4 Budget and Funding
a. The Board, in consultation with the Administrator, shall submit a complete and sufficient budget to the funding authority.
b. The funding authority has a constitutional and policy-based duty to fund the Program in a manner and in an amount consistent with provision of quality representation (Standard 2.1) and sound administration.
c. The Administrator shall maintain records and accounts of expenditures in accordance with accepted accounting practices.
National Advisory Commission on Criminal Justice Standards and Goals, Report of the Task Force on the Courts
Standard 13.15. Providing Assigned Counsel
The public defender office should have responsibility for compiling and maintaining a panel of attorneys from which a trial judge may select an attorney to appoint to a particular defendant. The trial court should have the right to add to the panel attorneys not placed on it by the public defender. The public defender's office also should provide initial and inservice training to lawyers on the panel and support services for appointed lawyers, and it should monitor the performance of appointed attorneys.
3. Attorney Panel Qualifications
Commentary. The first responsibility of the administrator is to establish a panel of private attorneys willing to accept criminal case assignments. The two national standards (ABA and NLADA) and three state standards (Georgia, Indiana, and Kansas) provide guidance for this task by suggesting that there be an application process that screens attorneys to ensure that they have sufficient experience and training for the job. The NLADA and ABA standards also stress the necessity of adopting performance standards. See also, Gwinnett Judicial Circuit Internal Operating Procedure 98-5, G 10.1 et seq., "Panel Attorneys."
ABA Standards for Criminal Justice: Providing Defense Services
Standard 5-2.2. Eligibility to Serve
Assignments should be distributed as widely as possible among the qualified members of the bar. Lawyers licensed to practice law in the jurisdiction, experienced and active in trial practice, and familiar with the practice and procedure of the criminal courts should be encouraged to submit their names for inclusion on the roster of attorneys from which assignments are made. Each jurisdiction should adopt specific qualification standards for attorney eligibility, and the private bar should be encouraged to become qualified pursuant to such standards. Counsel should not seek to avoid appointment by a tribunal to represent a person except for good cause.
NLADA Guidelines for Legal Defense Systems in the United States
2.15 Establishing the Assigned Counsel Panel
In establishing the assigned counsel panel, the administrator should solicit all members of the practicing bar in the area to be served by the system. The administrator should appoint all of those attorneys who display a willingness to participate in the program and manifest the ability to perform criminal defense work at a competent level. Provision should also be made for attorneys who are willing to learn criminal defense work, or to become more proficient in such work, to be inducted into the program upon completion of an appropriate training regime.
Standards of performance and conduct should be developed and disseminated among all panel members and potential panel members. In the event that those standards are disregarded or breached, it should be cause for either admonishment, suspension or removal from the panel.
NLADA Standards for the Administration of Assigned Counsel Systems
Standard 2.9 Standards for Performance of Counsel
a. The Assigned Counsel Program shall identify, and enforce adherence to, minimum standards for the performance of counsel and shall assist counsel in meeting, and striving to exceed, those standards.
b. Assigned counsel shall meet, and strive to exceed, minimum standards for the performance of counsel.
Standard 4.1 Establishment and General Operation of Assigned Counsel Roster
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b. The Board, or at its direction the Administrator, shall establish standards detailing the qualifications attorneys must have before being assigned cases at each level under paragraph (a), as described in Standard 4.1.1.
Standard 4.1.1 Qualifications of Attorneys
a. The attorney qualifications established pursuant to Standard 4.1(b) shall include criteria reflecting the experience and training required for assignment in cases of different levels of seriousness, and a requirement that attorneys have the proficiency and commitment necessary to provide the quality representation mandated by Standard 2.1.
b. The Program may allow the substitution of equivalent experience for specific experiential requirements, but may not compromise the proficiency and commitment requirements.
c. An attorney applying for inclusion on a Program roster, or for reclassification (Standard 4.1.(d)), shall provide to the Administrator information needed for verification of all qualifications offered in support of the application.
Georgia Indigent Defense Council, Guidelines for the Operation of Local Indigent Defense Programs
Guideline 2.4 Panel Attorney Program
The local committee may elect to provide indigent defense services through a panel attorney program using qualified attorneys in good standing with the State Bar of Georgia selected by the committee. The appointment of attorneys and the assignment of cases should be made as follows:
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(c) More difficult or complex cases shall be assigned to attorneys with sufficient levels of experience and competence to afford adequate representation;
(d) Less experienced attorneys should be assigned cases which are within their capabilities, but should be given the opportunity to expand their experience under supervision; …
Guideline 2.5 Selection and Conduct of Panel Attorneys
The local committee shall select the attorneys who will serve on the panel of attorneys to receive appointments of indigent cases.
Standards of performance and conduct shall be developed and disseminated by the local committee among all panel members and potential panel members. In the event that those standards are disregarded or breached, it would be cause for either admonishment, suspension or removal of the attorney from the panel.
These standards of performance and conduct shall include, but not be limited to the following:
(a) A panel member should make contact with the defendant as soon as possible after the assignment;
(b) A panel member should actively represent his/her client at every stage of the criminal proceeding;
(c) A panel member should represent his/her client vigorously within the bounds of the law and ethical conduct;
(d) A panel member should at all times perform his/her role as counsel independently; and
(e) A panel member should responsibly manage and account for his/her time in rendering services under the program.
Indiana Public Defender Commission, Standards for Indigent Defense Services in Non-Capital Cases
E. Appointment of Counsel
The comprehensive plan shall provide for the appointment of trial counsel meeting the following qualifications.
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2. Class A or B Felony. To be eligible to serve as appointed counsel in a case where the accused is charged with a Class A or B felony, an attorney shall;
a. be an experienced and active trial practitioner with at least two(2) years of criminal litigation experience; and
b. have prior experience as lead or co-counsel in at least two (2) felony jury trials which were tried to completion.
3. Class C Felony. To be eligible to serve as appointed counsel in a case where the accused is charged with a Class C felony, an attorney shall:
a. Be an experienced and active trial practitioner with at least one (1) year of criminal litigation experience; or
b. Have prior experience as lead or co-counsel in at least three (3) criminal jury trials which were tried to completion.
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5. Other criminal cases. To be eligible to serve as lead counsel in other criminal cases, an attorney shall have prior experience as lead or co-counsel in at least one (1) case of the same class or higher which was tried to completion.
Kansas Board of Indigents' Defense Services, Permanent Administrative Regulations
105-3-2. Eligibility to Serve
(a) Each licensed attorney engaged in private practice of law shall be eligible to serve on the panel if the following criteria are met.
(1) Each attorney on the voluntary panel representing an indigent defendant shall have completed 12 hours of continuing legal education in the area of criminal law within three years of appointment or have graduated from an accredited law school during the three years immediately before appointment.
(2) Each attorney assigned to the defense of any felony classified as a non-drug grid offense with a severity level of 3 or 4, or any felony classified as a drug grid offense with a severity level of 1, 2, or 3, shall have tried to a verdict, either as defense counsel or prosecutor, five or more felony jury trials.
(3) Each attorney assigned to the defense of any felony classified as an off-grid offense or a non-drug grid offense with a severity level of 1 or 2 shall have tried to a verdict, either as defense counsel or prosecutor, five or more jury trials involving the following:
(A) non-drug offenses of severity levels 1 through 4 or drug grid offenses of severity levels 1 through 3; or
(B) any off-grid offenses
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(7) …
(B) Except for appointment of an attorney to provide representation for an indigent person accused of a capital felony or a homicide pursuant to K.S.A. 21-3401, 21-3402, or 21-3403, an indigent person who has been convicted of a capital murder and who is under a sentence of death in the direct review of the judgment or an indigent person who has been convicted of capital murder and who is under a sentence of death in postconviction proceedings, the judge may waive any of the above conditions if the attorney selected by the judge has sufficient training, resources, and experience to undertake the case in question.
4. Rotation of Assignments
Commentary. A corollary standard to panel establishment is the rotation of assignments among panel members to ensure equity and avoid charges of favoritism. The ABA Defense Services Standards and the NLADA Guidelines for Legal Defense Systems both provide for exceptions to panel rotation when necessary. The Kansas Standards also provide for emergency appointment, when required, outside the normal rotation.
ABA Standards for Criminal Justice: Providing Defense Services
Standard 5-2.3. Rotation of Assignments and Revision of Roster
(a) As nearly as possible, assignments should be made in an orderly way to avoid patronage and its appearance, and to assure fair distribution of assignments among all whose names appear on the roster of eligible lawyers. Ordinarily, assignments should be made in the sequence that the names appear on the roster of eligible lawyers. Where the nature of the charges or other circumstances require, a lawyer may be selected because of his or her special qualifications to serve in the case, without regard to the established sequence.
NLADA Guidelines for Legal Defense Systems in the United States
2.16 Assignment of Cases to Panel Members
Although methods of assigning cases may vary with local procedures and conditions, the administrator, in designing the system and making assignments, should adhere to the following goals:
(a) The cases should be distributed in an equitable way among the panel members to ensure balanced workloads through a rotating system with allowances for variance when necessary;
(b) The more serious and complex cases should be assigned to attorneys with a sufficient level of experience and competence to afford proper representation; and
(c) Apprentice members of the panel should only be assigned cases which are within their capabilities; however, they should be given the opportunity to expand their experience gradually under supervision.
Georgia Indigent Defense Council, Guidelines for the Operation of Local Indigent Defense Programs
Guideline 2.4 Panel Attorney Program
The local committee may elect to provide indigent defense services through a panel attorney program using qualified attorneys in good standing with the State Bar of Georgia selected by the committee. The appointment of attorneys and the assignment of cases should be made as follows:
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(b) The cases shall be distributed among the attorneys to ensure balanced workloads through a rotation system;
Kansas Board of Indigents' Defense Services, Permanent Administrative Regulations
105-3-1. Rotation of Appointments
All appointments shall be made in an orderly manner to avoid patronage, or the appearance of patronage, and to ensure fair distribution of appointments among all whose names appear on the panel. Names on the panel shall be in alphabetical order and appointments shall be made in sequence with the following exceptions:
(a) When the court determines there is a conflict of interest, the next listed attorney shall be appointed.
(b) When the court determines the attorney lacks sufficient experience in a serious felony case, the next qualified attorney shall be appointed.
(c) When the court determines an emergency appointment of counsel is required, the first available attorney may be appointed; or
(d) When the court determines the attorney is unavailable to promptly handle the case, the next listed attorney shall be appointed.
Any attorney who is passed over shall be first in sequence for the next appointment.
5. Attorney Compensation
Commentary. A critical responsibility of the assigned counsel system is to ensure that participating attorneys are promptly compensated at a fair and reasonable rate. If rates are too low or compensation delayed, a qualified attorney will leave the plan, thus defeating one of the implicit purposes of an assigned counsel system¾to insure broad bar support for indigent defense services.
The ABA standards and Model Act approach the question of compensation very generally by requiring "reasonable" and "adequate" compensation. The NLADA and Washington standards go further to peg compensation rates to prevailing rates among the private bar or among other governmental attorneys (e.g., prosecutors). The two state standards (Georgia and Indiana) set specific rate minimum rates, while the Kansas and North Dakota standards set a specific statewide compensation rate. The North Dakota standards also provide detailed requirements for judicial service of attorney requests for payment. Recent case law has defined reasonable rates as covering the lawyer's overhead with an additional amount over that. See, e.g., State ex ref. Stephan v. Smith, 747 P.2d 816 (Kan. 1987).
ABA Standards for Criminal Justice: Providing Defense Services
Standard 5-2.4. Compensation and Expenses
Assigned counsel should receive prompt compensation at a reasonable hourly rate and should be reimbursed for their reasonable out-of-pocket expenses. Assigned counsel should be compensated for all hours necessary to provide quality legal representation. Compensation for assigned counsel should be approved by administrators of assigned-counsel programs.
NLADA Guidelines for Legal Defense Systems in the United States
3.1 Assigned Counsel Fees and Supporting Services
Assigned counsel should be adequately compensated for services rendered. Fees should be related to the prevailing rates among the private bar for similar services. These rates should be reviewed periodically and adjusted accordingly.
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In developing a fee schedule, the effect of the fee schedule upon the quality of representation should be considered. Fee structures should be designed to compensate attorneys for effort, skill and time actually, properly and necessarily expended in assigned cases.
Fee schedules, whether provided by statute or policy, should be designed to allow hourly in-court and out-of-court rates up to a stated maximum for various classes of cases, with provision for compensation in excess of the scheduled maxima in extraordinary cases.
NLADA Standards for the Administration of Assigned Counsel Systems
Standard 4.7.1 Assigned Counsel Fees
Reasonable compensation shall be provided to assigned counsel, at a rate commensurate with that paid for other contracted government legal work (e.g., work contracted for by attorneys general, county legislatures or commissions, etc.) or with prevailing rates for similar services performed by retained counsel in the jurisdiction.
Standard 4.7.2 Method of Compensation
a. Attorneys shall be compensated at an hourly rate, with no distinction between rates for services performed in and outside of court.
b. The amount of compensation sought shall be reviewed by the Administrator and approved unless there is cause to believe the amount is unwarranted.
c. Maximum fee limits shall not be established. Where they exist, they shall be subject to exception, upon approval by the Administrator acting within guidelines established by the Board.
d. Periodic billing and payment during the course of counsel's representation shall be provided for, at least in lengthy cases.
National Conference of Commissioners on Uniform State Laws, Model Public Defender Act
Section 13. Court Assigned Attorneys
If a court assigns an attorney under section 3 (d) or 6, it shall prescribe a reasonable rate of compensation for his services based on the complexity of the issues, the time involved, and other relevant considerations, and shall determine the direct expenses, necessary to representation, for which he should be reimbursed. Payment or reimbursement shall be made out of the [appropriate fund] of the state.
Georgia Indigent Defense Council, Guidelines for the Operation of Local Indigent Defense Programs
Guideline 2.6 Fees Paid to Lawyers Under a Panel Program
The local committee shall determine the method of compensation to be paid under a panel program within the following guidelines:
No program shall have a fee schedule which compensates attorneys at a rate of less than $45.00 per hour for out-of-court work and less than $60.00 per hour for in-court work.
In approving fees, the local committee shall take into consideration the complexity of the case and the corresponding fee that is presently being obtained by competent members of the bar for similar representation where privately retained. While the fee paid under the panel program need not equate to that of a corresponding fee obtained by a private practitioner, there should be a reasonable relationship.
The Council discourages the setting of maximum fees which appointed attorneys may receive; however, if a committee chooses to set maximum fees the maximums set for trials or similar situations must be at least as follows:
$1000.00 for misdemeanors. $2500.00 for non-capital felonies. $5000.00 for capital felonies where the death penalty is not sought. No maximum fee shall be set for capital felonies in which the death penalty is sought.
An appointed attorney shall be permitted to petition the court for a fee in excess of the maximum set for a particular category of case. It shall be within the sole discretion of the court after consideration of the petition whether or not to award a fee in excess of the maximum fee established by the local governing committee.
The Council recommends that fee requests of appointed attorneys be submitted to the Administrator of the Indigent Defense program or the local governing committee for approval. An appointed attorney may petition the court if the fee requested has been denied or reduced. It shall be within the sole discretion of the court after consideration of the petition whether or not to award the fee requested.
Capital felonies in which the death penalty is sought should be compensated based on hourly rates and the time spent as documented in records submitted by the attorneys.
Compensation for a capital felony case in which the death penalty is sought shall be at least the same hourly rate as other cases, but each case should be examined by the court and the fee total should be based on a complete examination of the individual case. Special attention shall be given to continuing counsel obligations in death penalty cases when conviction and imposition of the death penalty occur.
The monetary standards contained in this paragraph may be waived by the Council, on a year-to-year basis, upon a showing that compliance with them would work a demonstrable financial hardship upon a local governing authority, and would result in a diminution of ability to provide indigent defense services.
Indiana Public Defender Commission, Standards for Indigent Defense Services in Non-Capital Cases
H. Compensation of Assigned Counsel
The comprehensive plan shall provide that counsel appointed on a case-by-case basis for trial or appeal shall submit a claim for services and reimbursement for expenses.
- Hourly Rate. Counsel shall be compensated for time actually expended at the hourly rate of not less than sixty dollars ($60.00).
- Incidental Expenses. Counsel shall be reimbursed for reasonable, incidental expenses, e.g., photocopying, long-distance telephone calls, postage, and travel.
- Periodic Payments. Periodic payment during the course of counsel's representation shall be made monthly upon request of appointed counsel.
Kansas Board of Indigents' Defense Services, Permanent Administrative Regulations
105-5-2. Rates of compensation
(a) Each assigned counsel shall be compensated at the rate of $50 per hour.
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(c) Contract counsel shall be compensated at the rate or rates established and set forth in the contract between the board and the assigned counsel.
105-5-4. Multiple attorneys
No more than one attorney shall be compensated for services rendered at the same stage of proceedings, unless the judge determines that co-counsel is required due to the extreme seriousness of the case.
105-5-5. Overpayments
If it is determined by the director that an attorney has been paid an amount in excess of what is allowable according to the current regulations regarding compensation, the director shall notify the attorney to immediately reimburse the board for a like amount. If not paid on demand, the director may recoup that amount from a subsequently approved claim from that attorney.
105-5-6. Reasonable compensation; non-tried cases
(a) Each appointed and assigned attorney shall be compensated for time expended in representing indigent defendants and other indigent persons at the hourly rate prescribed in K.A.R. 105-5-2. Except as provided in K.A.R. 105-5-89, reasonable compensation shall not exceed $1,000 in the following cases:
(1) Those felony cases in the trial court that are classified as non-drug offenses of severity level 1 through 5 that are not submitted to a judge or jury, including services at a preliminary hearing sentencing, if applicable; and
(2) Those felony cases in the trial court that are classified as drug offenses, that have not been submitted to a judge or jury, and in which there have been six hours or more spent in court in defense of the indigent defendant, including services at a preliminary hearing and sentencing, if applicable.
(b) Except as provided in K.S.R. 105-5-8 and K.A.R. 105-6(a), reasonable compensation shall not exceed $750 in the following cases:
(1) Those felony cases in the trial court that are not submitted to a judge or jury, including services at a preliminary hearing and sentencing, if applicable, and that are classified as severity level 6 through 10 non-drug offenses; and
(2) Those felony cases in the trial court that are not submitted to a judge or jury, that are classified as drug offenses, and in which there have been fewer than six hours spent in court in defense of the indigent defendant, including services at a preliminary hearing and sentencing, if applicable.
(c) Except as provided in K.A.R. 105-5-8, K.A.R. 105-5-6(a), and K.A.R. 105-5-6(b), reasonable compensation shall not exceed $410 in the following types of cases:
(1) Habeas corpus cases as authorized by K.S.A. 1997 Supp. 22-4503 and K.S.A. 1997 Supp. 22-4506;
(2) Cases filed pursuant to K.S.A. 60-1507 and K.S.A. 1997 Supp.22-4506;
(3) Habeas corpus cases as authorized by K.S.A. 22-2710;
(4) Habeas corpus cases as authorized by K.S.A. 1997 Supp. 22-3428 and L/S/A/ 22-3428a; and
(5) Habeas corpus cases as authorized by K.S.A. 1997 Supp. 59-2965.
(d) Except as provided in K.A.R. 105-5-8, reasonable compensation shall not exceed $200 in the following types of cases:
(1) Representation of grand jury witnesses determined to be indigent and called to testify pursuant to K.S.A. 22-3009;
(2) Representation of indigent persons committed to custody as material witnesses pursuant to K.S.A. 1997 Supp. 22-2805;
(3) Probation revocation hearings; and
(4) Motions to modify sentence.
105-5-7. Reasonable compensation; tried cases
Each appointed and assigned attorney shall be compensated for time expended in representing indigent defendants at the hourly rate prescribed in K.A.R. 105-5-2. Except as provided in K.A.R. 105-5-8, reasonable compensation for felony cases tried on pleas of not guilty and submitted to a judge or jury for adjudication, including compensation for services at the preliminary hearing, sentencing and motions to modify the sentence, shall not exceed the following:
(a) $1,500 for felonies classified as non-drug offenses of severity levels 5 through 10;
(b) $2,000 for felonies classified as non-drug offenses of severity level 4 and felonies classified as drug offenses of severity levels 2 through 4; and
(c) $5,000 for felonies classified as non-drug offenses of severity levels 1 through 3, off-grid felonies, and felonies classified as drug offenses of severity level 1.
105-5-8. Compensation; exceptional cases
(a) Any compensation for attorneys' services in excess of the amounts set out in K.A.R. 105-5-6 and K.A.R. 105-5-7 may be approved only in exceptional cases. A finding by the court that a case is exceptional shall be subject to final approval by the board. An exceptional case means any of the following:
(1) Any case involving a felony chare in the trial court which does not appear on the sentencing range grid;
(2) any felony case tried on a not guilty plea in which there have been 25 or more hours spent in court in defense of the indigent defendant;
(3) any felony case not submitted to a judge or jury in which there have been 10 hours or more of in-court time spent in defense of the indigent defendant; or
(4) any case that has been declared an exceptional case by the court due to its complexity or other significant characteristics.
(b) Each claim for compensation in an exceptional case shall be accompanied by a specific finding in a court order setting forth the basis for the declaration that the case is exceptional.
(c) Reasonable compensation for attorneys' services in exceptional cases shall not exceed $5,000 per case. However, additional compensation may be approved by the board if warranted by the extreme complexity of the case.
North Dakota Legal Counsel for Indigents Commission, Indigent Defense Guidelines and Procedures
2. Guidelines for Payment of Appointed Counsel Fees and Expenses for Indigent Defense Services
1. Appointed Counsel Fees:
a. Appointed counsel shall be compensated at a rate of $75 per hour. Appointed counsel shall receive the same hourly rate of compensation for out-of-court services, including travel time, as for in-court services.
b. If a lawyer anticipates a cumulative attorney fee in a particular case of more than $1,000, early prior written approval of the judge presiding in the case is required.
c. If a lawyer anticipates a cumulative attorney fee in a particular case of more than $2,000, the early prior written approval of the judge presiding in the case is required. The judge shall notify the presiding judge of the judicial district and the State Court Administrator of each approval of an anticipated cumulative attorney fee in a particular case of more than $2,000.
d. If multiple attorneys are required in a particular case, the early prior written approval of the judge presiding in the case is required.
e. In exceptional cases in which total defense expenses may exceed $5,000, the judge presiding in the case will, at the earliest possible time, after consultation with the appointed attorneys, set a total fixed fee payment for total defense expenses, including counsel fees, witnesses, and investigatory expenses for that case. Notice of this order should be provided to the attorneys and the State Court Administrator.
Judges should avoid setting maximum reimbursable time limits in a case, beyond which the counsel is not compensated.
6. Procedures for Review of Trial Judge Decisions Regarding Counsel Fees for Indigent Defense Services
Section 1: Statement of Authority
Pursuant to the North Dakota Rule on Local Court Procedural Rules and Administrative Rules (NDLocalCtR) and after consultation with the Advisory Committee of the Judicial District (Section 8, NDLocalCtR) the following procedure for the resolution of counsel for indigent defendant fee disputes in this judicial district is adopted.
Section 2: Statement of Policy
This procedure is consistent with Rule 3(a)(9), North Dakota Legal Counsel for Indigents Rule (NDLCIR), that any person requesting review of a fee decision of a trial judge on counsel payment for state funded or county funded services shall exhaust administrative remedies established by the presiding judge of the judicial district. It is the policy in this judicial district to provide effective procedures for the prompt and fair resolution of fee disputes. Misunderstanding can be avoided by complete and detailed documentation of counsel fees submitted to the trial judge.
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Section 4: Standing
An "interested party" may seek review of a fee decision by a trial judge.
Section 5: Commencement of Review Procedures
Whenever a trial judge changes a counsel fee from that submitted, the trial judge shall explain the reason for the change in a letter to the attorney and offer the attorney the opportunity to meet with the judge to discuss the decision.
An interested party may file a written petition requesting review of a counsel fee decision with the presiding judge of the judicial district. Use of the petition form supplied by the office of the presiding judge is encouraged but not required. Verbal requests for review will be received but shall be reduced to writing and signed by the petitioner before any action is taken by the presiding judge.
The petition for review must include the names and addresses of all interested parties, a description of the kind of case involved, and the procedural history of the case. The petition must include a copy of the following:
l. An itemized bill of the fees charged by the attorney; and
2. The order of the trial judge relating to counsel payment.
Section 6: Time
Requests for review of counsel fee decisions must be filed within 30 days after notification of a fee decision either by a formal letter or receipt of partial payment, whichever is earlier. The review procedure will be completed, whenever possible, within 60 days after a request is received.
Section 7: Acceptance of Partial Payment Not a Bar
Acceptance of partial payment is not a bar to the filing of a petition.
Section 8: Notice
Other interested parties will be notified by the presiding judge.
Section 9: Supplementary Materials
Each interested party will be provided an opportunity to submit written materials and explanations.
Alternate No. 1:
Section 10: Judge Review Panel
The petition will be reviewed by a panel of three judges appointed by the presiding judge. The judge whose fee decision is under review will not be appointed as a member of the panel.
Section 11: Oral Hearing
Any interested party may request an oral hearing before the panel. No oral hearing will be scheduled unless requested by an interested party within 10 days after receipt of notice of the filing of the petition. The panel may set an oral hearing on its own motion.
Section 12: Findings and Recommendations
Written panel findings and recommendations will be made to the trial judge.
The written findings and recommendations of the panel will be sent to all interested parties.
Section 13: Effective Date
The effective date of this procedure is ________________, 19____.
Alternate No. 2
Section 10: Peer Review Panel
The petition will be reviewed by a panel of two attorneys appointed by the presiding judge and one attorney appointed by the attorney whose fee is under review.
Section 11: Oral Hearing
Any interested party may request an oral hearing before the panel. No oral hearing will be scheduled unless requested by an interested party within 10 days after receipt of notice of the filing of the petition. The panel may set an oral hearing on its own motion.
Section 12: Findings and Recommendations
Written panel findings and recommendations of the panel will be made to the trial judge.
The written findings and recommendations of the panel will be sent to all interested parties.
Section 13: Effective Date
The effective date of this procedure is _________________, 19___.
Alternate No. 3
Section 10: Judge and Peer Review Panel
The petition will be reviewed by a panel of two judges and two attorneys appointed by the presiding judge, and one attorney appointed by the attorney whose fee is under review. The judge whose fee decision is under review will not be appointed as a member of the panel.
Section 11: Oral Hearing
Any interested party may request an oral hearing before the panel. No oral hearing will be scheduled unless requested by an interested party within 10 days after receipt of notice of the filing of the petition. The panel may set an oral hearing on its own motion.
Section 12: Findings and Recommendations
Written panel findings and recommendations will be made to the trial judge.
The written findings and recommendations of the panel will be sent to all interested parties.
Section 13: Effective Date
The effective date of this procedure is _________________, 19___.
Alternate No. 4
Section 10: Reconsideration by the Trial Judge
The petition will be reviewed by the trial judge at the request of the presiding judge.
Section 11: Findings
The written findings of the trial judge will be sent to all interested parties.
Section 12: Effective Date
The effective date of this procedure is _________________, 19___.
7. North Dakota Legal Counsel for Indigents Commission Procedures for Review of Counsel Fee Disputes
Section 1: Statement of Authority
Pursuant to Rule 3(a)(10), NDLCIR, the North Dakota Legal Counsel for Indigents Commission, adopts procedures relating to Commission review of counsel fee disputes.
Section 2: Statement of Policy
Consistent with Rule 3(a)(5)(e) and Rule 3(a)(9), NDLCIR, it is the policy of the Commission to review disputed fee decisions by trial judges and to provide assistance to the parties in resolving counsel fee disputes. To this end, the Commission adopts procedures to aid in the resolution of counsel fee disputes.
Section 3: Definitions
The "trial judge" is the judge presiding in the case out of which the fee dispute arises.
An "interested party" is any aggrieved party including the affected attorney, trial judge, chair of any board of county commissioners, defendant, respondent and the state court administrator.
"Administrative Remedies" are remedies established by the presiding judge of each judicial district pursuant to Rule 3(a)(9), NDLCIR.
Section 4: Standing
An "interested party" may seek Commission review of a fee decision by a trial judge.
Section 5: Commencement of Commission Review
An interested party may file a written petition requesting Commission review of a counsel fee decision with the chair of the North Dakota Legal Counsel for Indigents Commission at the North Dakota Supreme Court. Use of the petition form supplied by the Commission is encouraged but not required. Verbal requests for review will be received but must be reduced to writing and signed by the petitioner before any action is taken by the Commission.
The petition for review shall include the names and address of all interested parties, a description of the kind of case involved, and the procedural history of the case. The petition should include a copy of the following:
- An itemized bill of the fees charged by the attorney;
- The order of the trial judge relating to counsel payment;
- Payment approval by the presiding judge of the judicial district in state expense cases;
- Payment approval by the Board of County Commissioners in county expense cases; and
- Certification of exhaustion of administrative remedies within the judicial district pursuant to Rule 3(a)(9), NDLCIR, and a copy of the written recommendations produced as a result of the administrative remedies.
Section 6: Time
Requests for Commission review of counsel fee decisions must be filed within 60 days after the exhaustion of counsel fee dispute administrative remedies established by the presiding judge of the judicial district.
Section 7: Acceptance of Partial Payment Not a Bar
Acceptance of partial payment is not a bar to the filing of a petition.
Section 8: Notice
Other interested parties will be notified by the Commission of the filing of the petition.
Section 9: Supplementary Materials
Each interested party will be provided an opportunity to submit written materials and explanations which may be of assistance to the Commission.
Section 10: Oral Hearing
Any interested party may request an oral hearing before the Commission. No oral hearing will be scheduled unless requested by an interested party within 10 days after receipt of the filing of the petition. The commission may set an oral hearing on its own motion.
Section 11: Findings and Recommendations of the Commission
Commission recommendations to the trial judge may be made by the full Commission or by a panel of three Commission members designated by the Chair of the Commission. Commission recommendations will be made within 60 days after the filing of the petition for review.
The written findings and recommendations of the Commission will be sent to all interested parties.
Section 12: Open Records, Meetings and Voting
All records and meetings of the Commission relating to counsel fees are open to the public. All Commission votes must be recorded.
Section 13: Liaison with the Judicial Conduct Commission and the Disciplinary Board
If circumstances warrant, the Commission may refer matters coming to its attention to the Judicial Conduct Commission or the Disciplinary Board for further action.
Section 14: Effective Date
The effective date of these procedures is October 1, 1981.
Section 15: Citation
These procedures may be cited as Review of Counsel Fee Procedures (RCFP).
Washington Defender Association, Standards for Public Defense Services
Standard One. Compensation
Public defense attorneys and staff should be compensated at a rate commensurate with their training and experience. To attract and retain qualified personnel, compensation and benefit levels should be comparable to those of attorneys and staff in prosecutorial offices in the area.
For assigned counsel, reasonable compensation should be provided. Compensation should reflect the time and labor required to be spent by the attorney and the degree of professional experience demanded by the case. Assigned counsel should be compensated for out-of-pocket expenses.
Contracts should provide for extraordinary compensation over and above the normal contract terms for cases which require an extraordinary amount of time and preparation, including, but not limited to, death penalty cases. Services which require extraordinary fees should be defined in the contract.
6. Attorney Expenses
Commentary. Most assigned counsel plans do not include provision for paying expenses incurred by attorneys in the course of representing their clients, even though such expenses are routinely incurred. Implicit in the standards below is the proposition that expenses should not be taken out of the lawyer's basic fee; otherwise there is a potential for conflict of interest. Among those that do, the specificity of the standards ranges from the ABA's generalized principle for payment of expenses to the detailed statements of what is included by the Kansas regulations and the North Dakota guidelines.
ABA Standards for Criminal Justice: Providing Defense Services
Standard 5-2.4. Compensation and Expenses
Assigned counsel should…be reimbursed for their reasonable out-of-pocket expenses.
NLADA Standards for the Administration of Assigned Counsel Systems
Standard 4.7.3 Payment of Expenses
a. The Board shall establish policies as to expenses which will be reimbursed (including reasonable and necessary travel and long-distance and client collect telephone calls) and those which will not.
b. Routine office expenses and out-of-pocket expenses shall be paid for by assigned counsel without reimbursement from the Program. The Administrator, with the guidance of the Board, shall approve reimbursement of extraordinary amounts which were reasonable, actual and necessary.
Indiana Public Defender Commission, Standards for Indigent Defense Services in Non-Capital Cases
H. Compensation of Assigned Counsel
The comprehensive plan shall provide that counsel appointed on a case-by-case basis for trial or appeal shall submit a claim for services and reimbursement for expenses.
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2. Incidental Expenses. Counsel shall be reimbursed for reasonable, incidental expenses, e.g., photocopying, long-distance telephone calls, postage, and travel.
Kansas Board of Indigents' Defense Services, Permanent Administrative Regulations
105-6-2. Expenses allowed
Expense reimbursements shall include reimbursement for the following expenses:
(a) the cost of photocopying prepared briefs;
(b) the cost of binding appellate briefs for each case;
(c) in-state travel and subsistence by appointed attorneys, not to exceed the rate set by the secretary of the department of administration for state employees in accordance with K.S.A. 75-3201, et seq. and K.S.A. 75-4601 et seq.;
(d) expenses incurred by appointed attorneys in obtaining computerized legal research if the case presents a unique question of law to be researched. Such expenses shall not exceed $200;
(e) expenses incurred by appointed attorneys in taking depositions, if found to be authorized by statute and necessary in order to provide an adequate defense and when prior approval has been obtained from the court;
(f) costs of mailing briefs; and
(g) expenses incurred by appointed attorneys which would otherwise have been approved and paid by the board directly to a third party in accordance with statute or rule and regulation.
North Dakota Legal Counsel for Indigents Commission, Indigent Defense Guidelines and Procedures
2. Guidelines for Payment of Appointed Counsel
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2. Attorney Travel Expenses:
a. Mileage and travel expenses of the attorney will be reimbursed at rates not to exceed those provided in Sections 44-08-04 and 54-06-09, NDCC.
b. If a lawyer anticipates cumulative travel expenses exceeding $500, the early prior written approval of the judge presiding in the case is required.
3. Other Investigatory and Defense Service Expenses:
a. Witnesses will be compensated pursuant to Sections 31-01-16, 31-01-17, 31-01-18, and 31-01-19, NDCC, upon submission of itemized documentation including the dates attending court, travel and other expenses.
b. The following expenses, up to $500, will be reimbursed without prior written approval of the judge presiding in the case:
1. Investigators;
2. Expert witnesses;
3. Out-of-state witnesses.
c. Interpreters for foreign languages and for the visually or hearing impaired will be provided as required by law (See Sections 28-33-02, 31-01-11, NDCC). Interpreter expenses shall be reimbursed; however, the level of compensation is determined by the judge presiding in the case.
d. The following expenses will be reimbursed without prior approval of the judge presiding in the case:
1. Collect telephone charges from defendant;
2. Long distance telephone charges;
3. The first $40 in copying charges, including court records and medical records;
4. The copying charges for briefs on appeal;
5. Fees for service of subpoenas by private service of process agencies. Any costs for service of subpoenas by law enforcement agencies should be referred directly to the State Court Administrator for disposition.
e. If a lawyer anticipates individual investigatory or other defense expenses in a particular case of more than $500, early prior written approval of the judge presiding in the case is required.
f. Unless otherwise approved by the judge presiding in the case the following expenses will not be reimbursed:
1. Transcripts from other proceedings (Access, use or copies of transcripts in the pending proceeding will be provided by the trial court without charge to defense counsel. Any costs in the preparation of transcripts will be referred directly to the State Court Administrator for disposition.);
2. Local telephone charges;
3. Office supplies;
4. Incidental meals;
5. Postage;
6. Copying charges in excess of that allowed by 3(d)(3), including court records and medical records.
4. No advance funds payment authorization will be authorized for counsel. Counsel may submit expense vouchers for payment monthly.
5. When prior approval of Attorney Travel Expenses (Section 2) and Other Investigatory and Defense Services Expenses (Section 3) is required, the standard for approval by the judge presiding in the case is whether the services are necessary to the preparation and presentation of an adequate defense.
6. Vouchers for all appointed attorney fees and expenses must be appropriately itemized.
7. Disputes regarding attorney fees or other defense service should be resolved pursuant to procedures established in each judicial district or by the Commission.
7. Related Provisions
Commentary: Two other assigned counsel-related provisions are these:
- Requirement for a complete and sufficient budget
- Provision for suitable office space
NLADA Standards for the Administration of Assigned Counsel Systems
Standard 3.4 Budget and Funding
a. The Board, in consultation with the Administrator, shall submit a complete and sufficient budget to the funding authority.
b. The funding authority has a constitutional and policy-based duty to fund the Program in a manner and in an amount consistent with provision of quality representation (Standard 2.1) and sound administration.
c. The Administrator shall maintain records and accounts of expenditures in accordance with accepted accounting practices.
Standard 3.6 Office Space, Equipment, Supplies
The Program shall be provided with suitable space, equipment and supplies at appropriate locations, or with the funds necessary to obtain them.