Rule 29. Appointment of counsel for indigent defendants.
Rule 29.1. Counties to which this rule is applicable.
Rule 29.2. Application and appointment of counsel.
Rule 29.3. The role of law enforcement.
Rule 29.4. Responsibility for determination of eligibility.
Rule 29.5. Uniform eligibility guidelines.
Rule 29.6. Standards of performance for appointed attorneys.
Rule 29.7. County may select method of providing counsel.
Rule 29.8. Assignment of cases to private attorneys.
Rule 29.9. Fees paid to lawyers under a panel program.
Rule 29.10. Fee disputes.
Rule 29.11. Independence of counsel.
Rule 29.1. Counties to which this rule is applicable.
Pursuant to O.C.G.A. § 17-12-1 et seq., the following rule is promulgated to provide representation by competent legal counsel of indigent persons in criminal proceedings for those counties not receiving state funds under "The Georgia Indigent Defense Act" (Ga. L. 1979, p. 367, § 1; O.C.G.A. § 17-12-30 et seq.).
Rule 29.2. Application and appointment of counsel.
When an accused person, contending to be financially unable to employ an attorney to defend against pending criminal charges or to appeal a conviction, desires to have an attorney appointed, the accused shall make a request in writing to the court or its designee for an attorney to be appointed. The request shall be in the form of an application for appointment of counsel and certificate of financial resources, made under oath and signed by the accused which shall contain information as to the accused's assets, liabilities, employment, earnings other income, number and ages of dependents, the charges against the accused and such other information as shall be required by the court. The purpose of the application and certification is to provide the court or its designee with sufficient information from which to determine the financial ability of the accused to employ counsel.
The determination of indigency or not shall be made by a judge of a superior court or designee.
Upon a determination of indigency the court shall, in writing, authorize the appointment of counsel for the indigent accused. The original authorization of appointment shall be filed with the indictment or warrant in the case; a copy of the authorization shall be forwarded to the clerk, court administrator, public defender or such other person designated by the court to assign an attorney to an indigent defendant. Such person shall notify the accused, the appointed attorney, the sheriff and the district attorney of the appointment. [In state court, see State Court Rule 29.2.]
Rule 29.3. The role of law enforcement.
Any law enforcement authority having custody of any person shall:
(A) Allow a person claiming to be indigent and without counsel to immediately complete an application for an attorney and certificate of financial resources and forward such to the court or its designee, for a determination of indigency or not;
(B) Clearly advise detained persons of their right to have counsel and that if they cannot afford a lawyer one will be provided to assist them;
(C) Accomplish the above procedures as soon as possible after detention; and,
(D) Complete an application for an attorney and certificate of financial resources in substantially the following form:
IN THE SUPERIOR COURT OF ____ COUNTY
STATE OF GEORGIA
STATE OF GEORGIA INDICTMENT NO.
v. ___________ CHARGE(S):
APPLICATION FOR APPOINTMENT OF COUNSEL AND
CERTIFICATE OF FINANCIAL RESOURCES
I am the defendant in the above styled action. I am charged with the offense(s) of ________________ which is/are a felony/misdemeanor. I can/cannot afford to hire a lawyer to assist me. I do/do not want the court to provide me with a lawyer. I understand that I am providing this information in this declaration in order for the court to determine my eligibility for a court appointed lawyer, paid by ________ County, to defend me on the above charges.
In jail ________ Out on bond ________ Arrest Date _______
1. Name ______________ Telephone No. _______________________
Mailing address ____________________________________________
Birth date _______ Age _____ Soc. Sec. No. _________________
Highest grade in school completed ___________________________
2. If employed, employer is _________________________________
Net take home pay is (gross pay minus state, federal
and social security taxes): ________ (weekly) ________ (monthly)
3. If unemployed, how long? __________ List other sources of income such as unemployment compensation, welfare or disability income and the amounts received per week or month: __________________.
4. Are you married ______ Is spouse employed? _____________________
If yes, by whom _________ Spouses net income (week) _______________
5. Number of children living in home: __________ Ages __________
6. Dependents (other than spouse or children) in home, names, relationship, amount contributed to their support ______________________
7. Do you own a motor vehicle? ____ Year and model __________
How much do you owe on it? ______________________________
8. Do you own a home? _______ Value ________How much do you owe on it? __________
9. Amount of house payment or rent payment each month _____________
10. List checking or savings accounts or other deposits with any bank or financial institution and the amount of deposits: ____________________________________________________
___________________________________________________________________________
11. List other assets or property, including real estate, jewelry, notes, bonds or stocks ___________________________________________________________________________
12. List indebtedness and amount of payments ____________________________________
13. List any extraordinary living expenses and amount (such as regularly occurring medical expenses) __________________________________________________________________
14. Child support payable under any court order _____________________
15. Do you understand that whether you are convicted or acquitted County may seek reimbursement of attorneys fees paid for you if you become financially able to pay or reimburse the county but refuse to do so? ____________________________
I have read (had read to me) the above questions and answers and they are correct and true.
The undersigned swears that the information given herein is true and correct and understands that a false answer to any item may result in charge of perjury.
The ______ day of _________, 19__.
_________________________
Defendants Signature
Sworn to and subscribed before me this ______ day of ____________, 19__.
__________________________________ Notary Public My Commission Expires _______
ORDER.
Having considered the above matter, it is the finding of this court that the above named defendant is/is not indigent under criteria of the Georgia Criminal Justice Act and appropriate court rules and is/is not entitled to have appointed counsel.
It is ordered that the clerk, panel administrator, or court administrator assign an attorney practicing in this county to represent the defendant in the above case.
Let the defendant and the assigned attorney be notified hereof and furnished a copy of this application and order.
This ______ day of ___________, _____.
______________________
Superior Court Judge
_________ Judicial Circuit
Rule 29.4. Responsibility for determination of eligibility.
The financial eligibility of a person for publicly provided counsel should be determined by the court or its designee. The court may appoint counsel in cases where the defendant does not qualify and cannot be provided counsel under provisions of the above.
Rule 29.5. Uniform eligibility guidelines.
Income eligibility Eligible accused persons include all applicants for an attorney with net income below a level set by the applicable superior court and revised periodically. 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; and,
(2) Legally required support payments to dependents, including alimony for the support of a child/children.
"Net income" shall include only a clients 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, a spouse, if the couple lives 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. No other persons, even if living within the same household, will 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.
The court may appoint counsel for representation 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.
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, the accused is able to provide a cash contribution to offset defense costs without imposing a substantial financial hardship either personally or upon dependents, such contribution may be required as a condition of continued representation at public expense. The court should determine the amount to be contributed. The contribution shall be paid directly to the fund for indigent defense of the affected county.
Rule 29.6. Standards of performance for appointed attorneys.
Rule 29.7. County may select method of providing counsel.
A county may use a public defender system, legal aid and defender society, agency for indigent defense, a panel of private attorneys, a combination of the above, or other means, to provide adequate legal defense for indigents accused of felonies.
Rule 29.8. Assignment of cases to private attorneys.
(A) Appointments of private attorneys shall be made on an impartial and equatable 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.
Rule 29.9. Fees paid to lawyers under a panel program.
The judge or judges of a multi judge circuit shall determine the method of compensation to be paid under a panel program.
Each program shall prescribe minimum fees to be paid as a total fee, regardless of hours, in certain categories of cases, governed by these rules. In prescribing such minimums, the court shall take into consideration the complexity of the case categories and the corresponding fee that is presently being obtained by competent members of the local bar for such representation where privately retained. While the fee paid under the panel program need not equate that of a corresponding fee obtained by a private practitioner, there should be a reasonable relationship.
Compensation for a capital felony case in which the death penalty is sought shall be at 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 should be given to continuing counsel obligations in death penalty cases when conviction and imposition of the death penalty occur.
The court may establish a committee composed of a designee of the chief judge, the local county governing authority and the local bar association to perform the functions of establishing fee guidelines and approval of fees.
Rule 29.10. Fee disputes.
All fee vouchers or requests from panel attorneys shall be submitted to the judge assigned the case or a person or committee designated to review fee requests prior to their submission to the county for payment.
Rule 29.11. Independence of counsel.
Any indigent defense program shall operate independently and be structured to preserve independence. Independent counsel shall be politically autonomous and free from influence, guidance or control from any other authority in the discharge of professional duties, within the bounds of the law and the Code of Professional Responsibility.