Section 3 - Minimum qualifications and compensation of counsel in capital cases(a) For purposes of this rule, a capital case is a case in which a defendant has been charged with first-degree murder and a notice of intent to seek the death penalty, as provided in Tenn. Code Ann. § 39-13-208 and Tenn. R. Crim. P. 12.3(b), has been filed and no order withdrawing the notice has been filed. Non-capital compensation rates apply to services rendered by appointed counsel after the date the notice of intent to seek the death penalty is withdrawn.(b)(1) The court shall appoint two attorneys to represent a defendant at trial in a capital case. Both attorneys appointed must be licensed in Tennessee and have significant experience in Tennessee criminal trial practice, unless in the sound discretion of the trial court, appointment of one attorney admitted under Tenn. Sup. Ct. R. 19 is appropriate. The appointment order shall specify which attorney is "lead counsel" and which attorney is "co-counsel." Whenever possible, a public defender shall serve as and be designated "lead counsel."(2) If the notice of intent to seek the death penalty is withdrawn at least thirty (30) days prior to trial, the trial court shall enter an order relieving one of the attorneys previously appointed. In these circumstances, the trial court may grant the defendant, upon motion, a reasonable continuance of the trial.(3) If the notice is withdrawn less than thirty (30) days prior to trial, the trial court may either enter an order authorizing the two attorneys previously appointed to remain on the case for the duration of the present trial, or enter an order relieving one of the attorneys previously appointed and granting the defendant, upon motion, a reasonable continuance of the trial.(c) Lead counsel must: (1) be a member in good standing of the Tennessee bar or be admitted to practice pro hac vice(2) have regularly participated in criminal jury trials for at least five years;(3) have completed, prior to the appointment, a minimum of six (6) hours of specialized training in the defense of defendants charged with a capital offense; and, complete a minimum of six (6) hours of specialized training in the defense of defendants charged with a capital offense every two years thereafter;(4) have at least one of the following: (A) experience as lead counsel in the jury trial of at least one capital case;(B) experience as co-counsel in the trial of at least two capital cases;(C) experience as co-counsel in the trial of a capital case and experience as lead or sole counsel in the jury trial of at least one murder case;(D) experience as lead counsel or sole counsel in at least three murder jury trials or one murder jury trial and three felony jury trials; or(E) experience as a judge in the jury trial of at least one capital case.(d) Co-counsel must: (1) be a member in good standing of the Tennessee bar or be admitted to practice pro hac vice(2) have completed, prior to the appointment, a minimum of six (6) hours of specialized training in the defense of defendants charged with a capital offense; and, complete a minimum of six (6) hours of specialized training in the defense of defendants charged with a capital offense every two years thereafter;(3) have at least one of the following qualifications:(A) qualify as lead counsel under (c) above; or(B) have experience as sole counsel, lead counsel, or co-counsel in a murder jury trial.(e) Attorneys who represent the defendant in the trial court in a capital case may be designated to represent the defendant on direct appeal, provided at least one trial attorney qualifies as new appellate counsel under section 3(g) of this rule and both attorneys are available for appointment. However, new counsel will be appointed to represent the defendant if the trial court, or the court in which the case is pending, determines that appointment of new counsel is necessary to provide the defendant with effective assistance of counsel or that the best interest of the defendant requires appointment of new counsel.(f) If new counsel are appointed to represent the defendant on direct appeal, both attorneys appointed must be licensed in Tennessee, unless in the sound discretion of the judge, appointment of one attorney admitted under Tenn. Sup. Ct. R. 19 is appropriate.(g) Appointed counsel on direct appeal, regardless of any prior representation of the defendant, must have three years of litigation experience in criminal trials and appeals, and they must have at least one of the two following requirements: experience as counsel of record in the appeal of a capital case; or experience as counsel of record in the appeal of at least three felony convictions within the past three years and a minimum of six hours of specialized training in the trial and appeal of capital cases.(h) Counsel eligible to be appointed as post-conviction counsel in capital cases must have the same qualifications as appointed appellate counsel, or have trial and appellate experience as counsel of record in state post-conviction proceedings in three felony cases, two murder cases, or one capital case. Counsel also must have a working knowledge of federal habeas corpus practice, which may be satisfied by six hours of specialized training in the representation in federal courts of defendants under the sentence of death imposed in state courts; and they must not have previously represented the defendant at trial or on direct appeal in the case for which the appointment is made, unless the defendant and counsel expressly consent to continued representation.(i) No more than two attorneys shall be appointed to represent a death-row inmate in a proceeding regarding competency for execution. At least one of the attorneys appointed shall be qualified as post-conviction counsel as set forth in section 3(h).(j) Appointed counsel in capital cases, other than public defenders, shall be entitled to reasonable compensation as determined by the court in which such services are rendered, subject to the limitations of this rule, which limitations are declared to be reasonable. Compensation shall be limited to the two attorneys actually appointed in the case. Appointed counsel in a capital case shall submit claims in accordance with Section 6 of this rule.(k) Hourly rates for appointed counsel in capital cases shall be as follows: (1) Lead counsel: one hundred ten dollars ($110);(2) Co-counsel: ninety dollars ($90);(3) Post-conviction: ninety dollars ($90);(4) Counsel appointed pursuant to section 3(i): ninety dollars ($90).(l) For purposes of this rule, the hourly rate includes time reasonably spent preparing the case and time reasonably spent before a judge on the case to which the attorney has been appointed to represent the indigent party.(m) Attorneys shall not be compensated for time associated with traveling to a court in another county for the sole purpose of hand-delivering or filing a document. Amended by order filed July 2, 2024, effective nunc pro tunc 7/1/2024; amended by order filed October 4, 2024, effective 10/4/2024.Explanatory Comment:
Section 3(a) clarifies that even if a trial court allows two appointed attorneys to remain on a case, under Section 3(b)(3), after a notice of intent to seek the death penalty is withdrawn, counsel will be compensated at non-capital rates for services rendered after the date the notice is withdrawn. Section 3(b)(1) requires that the appointment order must specify lead and co-counsel and that the public defender must serve and be designated lead counsel whenever possible. Section 3 permits former prosecutors and judges with appropriate experience to be appointed counsel in capital cases. Section 3(c)(2) requires five years participation in criminal jury trials. Section 3(k)(4) provides that attorneys appointed in competency proceedings will be compensated at the same $90 rates applicable in other capital post-conviction proceedings. Section 3(l) clarifies that appointed counsel will not be compensated for time spent defending against a Board of Professional Responsibility action that arises from the appointment. Section 3(m) precludes compensating attorneys for time spent driving to and from a clerk's office in another county for the sole purpose of hand-delivering or filing a document.