Idaho Admin. Code r. 61.01.02.060

Current through September 2, 2024

Section 61.01.02.060 - DEFENDING ATTORNEY MINIMUM REQUIREMENTS

Defending Attorneys shall meet the following minimum requirements for providing effective representation to Indigent Persons as provided in Sections 19-855, 19-860(2), 19-850(1)(a)(vi) and 19-850(1)(a)(v)(ii)5 and 8, Idaho Code.

01.Idaho State License, Defending Attorney Roster, and County Employment or Contract Requirements:

a. Licensed to practice law in Idaho and in compliance with Idaho State Bar rules;

b. Member of the Defending Attorney Roster, except as provided in Subsection 050 of these rules;

c. Employed or under contract to provide public defense services to a county; and

d. If a Court attempts to appoint an attorney to represent an Indigent Person at public expense and the attorney does not meet one or more of the requirements in this Subsection 060.01, the attorney will immediately notify the Court.

02.Public Defense Competency. Be competent to counsel and represent Indigent Persons.

03.Qualifications. Have the ability, training, experience, and understanding necessary for their appointed Cases to do the following:

a. Apply laws, rules, procedures, and practices to the Case and perform thorough legal research and analysis;

b. Protect client confidentiality, and if breached, notify the client and any other entities when necessary to preserve the client's constitutional and statutory rights;

c. Ensure Vertical Representation from the time a Defending Attorney is appointed in each Case. Nothing in this rule is intended to prohibit a different Defending Attorney from representing the client at Initial Appearance. Defending Attorneys who are unable to comply with this rule will notify their supervisor, Board of County Commissioners, or the Court and request appropriate resources;

d. Dedicate sufficient time to each Case;

e. Promptly and independently investigate the Case;

f. Request funds as needed to retain an investigator;

g. Request the assistance of experts where it is reasonably necessary to prepare the defense and rebut the prosecution's case;

h. Continually evaluate the Case for defense investigations or expert assistance;

i. Be present at the Initial Appearance and available to the Indigent Person in person or via technology, and:

i. Preserve the client's constitutional and statutory rights;

ii. Discuss the charges, case and potential and collateral consequences with the client;

iii. Obtain information relevant to Idaho Criminal Rule 46 (bail or release on own recognizance) and if appropriate, seek release;

iv. Encourage the entry of a not guilty plea at Initial Appearance except in circumstances where a guilty plea is constitutionally appropriate;

j. Work within Caseload or Workload limits, defined in Subsection 060.05 of these rules. If a Defending Attorney's Caseload exceeds the numeric standard, the attorney must disclose this in the Annual Report. The Report must include the reasons for the excessive Caseload or Workload, and if and how the representation met constitutional standards;

k. Have sufficient time and private space to confidentially meet with Indigent Persons;

l. Have confidential and secure information systems for Indigent Person's confidential information;

m. Identify and resolve conflicts of interests in compliance with Idaho Rules of Professional Conduct (IRCP) and other applicable laws and rules;

n. Be familiar with and competent to identify or use:

i. Forensic and scientific methods used in prosecution and defense;

ii. Mental, psychological, medical, environmental issues and impacts;

iii. Written and oral advocacy;

iv. Motions practice to exhaust good faith procedural and substantive defenses;

v. Evidence presentation and direct and cross examination;

vi. Experts as consultants and witnesses and expert evidence;

vii. Forensic investigations and evidence;

viii. Mitigating factors and evidence;

ix. Jury selection methods and procedures;

x. Electronic filing, discovery and evidence and systems;

xi. Constitutional representation; and

xii. When a Defending Attorney's abilities do not match the nature and complexity of the Case, they will seek the advice of experienced attorneys, seek training, or decline appointments.

04.Additional Qualifications for Capital Cases. Capital Defending Attorneys must meet the following additional requirements:

a. Have advanced familiarity and demonstrated competence with the above minimum requirements for Defending Attorneys; and

b. Have knowledge and experience in the following:

i. Capital laws, rules, procedures and practices;

ii. Capital mitigation;

iii. Use of mental health evaluations and evidence;

iv. Managing and litigating complex cases;

v. Assembling and leading a trial team;

vi. Capital jury selection methods and procedures; and

vii. Qualifications meeting or exceeding the American Bar Association Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases to extent they do not conflict with Idaho law;

c. Lead trial Defending Attorney in Capital Cases will meet or exceed the following experience levels:

i. Active trial practitioner with no less than ten (10) years in criminal defense litigation;

ii. Lead counsel in no less than ten (10) felony jury trial tried to verdict; and

iii. Lead or co-counsel in no less than one (1) Capital Case tried to verdict or capital sentencing;

d. Trial co-counsel Defending Attorney in Capital Cases who are not qualified as lead trial counsel will meet or exceed the following experience levels:

i. Active trial practitioner with no less than five (5) years in criminal defense litigation and one (1) of the following:

ii. Lead counsel in no less than five (5) felony jury trial tried to verdict; or

iii. Lead or co-counsel in no less than one (1) Capital Case tried to verdict or capital sentencing;

e. Lead appellate/post-conviction Defending Attorney in Capital Cases will meet or exceed the following experience levels:

i. Active appellate/post-conviction attorney with no less than ten (10) years in criminal defense litigation; and

ii. Lead counsel in no less than one (1) Capital or federal capital habeas corpus Case;

f. Appellate/post-conviction co-counsel in Capital Cases who are not qualified as lead appellate or lead post-conviction counsel will meet or exceed the following experience levels:

i. Active appellate and post-conviction practitioner with no less than five (5) years in criminal defense litigation; and

ii. Attorney in no less than one (1) felony appeal with appellate argument, or if tried to evidentiary hearing either a post-conviction or federal habeas corpus Case;

g. Lead trial or appellate/post-conviction counsel who do not meet the numeric years of practice or numeric number of trials/cases will meet the following alternate requirements:

i. Meet all the other minimum requirements to ensure their abilities, training, and experience are appropriate given the nature and complexity of a Capital Case, and

ii. Demonstrate they are qualified to provide lead trial representation or appellate and post-conviction representation in a Capital Case, as applicable, despite their years in practice and trials/cases handled;

h. Minimum requirements for Capital Case defense teams:

i. At least two (2) qualified Capital Defending Attorneys, one (1) designated lead and the other or others as co-counsel, appointed at or before the Initial Appearance;

ii. Immediate assembly of a team by Capital Defending Attorneys consisting of no less than the following:

(1) Fact investigator;

(2) Mitigation specialist;

(3) Person trained and professionally qualified to screen for mental and psychological screenings; and

(4) Other persons needed to provide effective and zealous representation; and

(5) Require ongoing training and compliance with standards.

05.Caseloads and Workloads. Defending Attorneys will have Caseloads and Workloads that are appropriately sized to permit effective representation as follows:

a. Caseload standard. Maximum Caseloads by Active Case type shall not during the reporting period exceed:

i. Two (2) Capital Cases at a time;

ii. Two hundred ten (210) non-capital felony Cases;

iii. Five hundred twenty (520) misdemeanor Cases;

iv. Two hundred thirty-two (232) juvenile Cases;

v. One hundred five (105) child protection or parent representation Cases;

vi. Six hundred eight (608) civil contempt or mental health Cases; and

vii. Thirty-five (35) non-capital substantive appeal Cases.

viii. To determine maximum Caseloads for mixed Case types, add the percentage of the maximum Caseload for each category and the sum of those percentages is not to exceed one hundred percent (100%); and adjust the Caseload downward when the Case assignments are weighted toward more serious offenses, complex Cases, or those requiring significant expenditure of time and resources.

b.(RESERVED)

c. Case Counting.

i. A felony Case is counted as follows:

(1) A Case filed as a felony is counted as one (1) felony, whether it is dismissed, remanded, pled, or tried to completion;

(2) A Case filed as a misdemeanor that is later amended to a felony is counted as a felony;

ii. A probation violation or motion for contempt is counted as a separate Case;

iii. A Case that is conflicted or consolidated is counted by the Defending Attorney assigned to the conflicted or consolidated Case and not counted by the initial Defending Attorney;

iv. A Case sent to a problem-solving court is counted once as initially filed as a felony, misdemeanor, or juvenile Case;

v. A Case is counted as a Capital Case if, in any part of the reporting period, the state is legally entitled to seek the death penalty under Section 18-4004A, Idaho Code;

vi. Post-judgment motions are not counted as a Case;

d. Defending Attorneys who are unable to comply with the Caseload rules will notify their supervisor, Board of County Commissioners or the Court and request appropriate resources.

e. Workloads. Caseloads maximums are based on the following considerations:

i. Adequate support staff;

ii. Cases of average complexity;

iii. Reasonable distribution of Cases throughout the year; and

iv. No supervisory duties;

f. Defending Attorneys unable to comply with the Workload rules will notify their supervisor, Board of County Commissioners or the Court and request appropriate resources.

Idaho Admin. Code r. 61.01.02.060

Effective April 10, 2024 (Temporary)