PANEL ATTORNEY QUALIFICATIONS
Rule 8.300 of the California Rules of Court states that the
appointed counsel must be based on criteria approved by the Judicial Council. The task of administering a panel of attorneys for appointment has been delegated to the appellate project directors. The project directors evaluate the qualifications
of attorneys who request appointment to cases. Attorneys desiring appointments indigent criminal appeals must submit a written application
and two sets of appellate briefs, or equivalent trial court
pleadings to be considered for placement on the panel.
The application is located on the SDAP website and can be emailed to the Law Office Manager upon completion. SDAP carefully reviews an applicant’s degree of experience
and writing proficiency in determining whether the applicant
will be admitted to the panel and, if so, at what classification, Rule 8.300(c) describes the relevant criteria.
Uniform statewide panel attorney classification and case classification
and definitions have been adopted by the various California
appellate projects. The description below incorporates the classifications and reflects how SDAP uses them in practice.
1. Attorney Classifications
Level I. Attorneys who need substantial assistance
and handle the simplest cases receive this
classification. These attorneys are generally new attorneys with little or no relevant experience
(e.g., less than two years in the practice of appellate practice and who
have filed fewer than three opening briefs of substance).
Must demonstrate promising research, writing,
and analytical skills and make steady progress toward skills
required of higher classifications.
Types of Case Assignments:
May be given class A cases (see below for a
description of the case classification system) on an assisted basis.
Level II. Attorneys who need some
assistance in all cases and whose work indicates an ability to
handle cases somewhat more difficult than the simplest are
classified at this level. These attorneys fall into two categories:
(a) attorneys with modest experience (one to four years of appellate practice or have filed three to
ten opening briefs of substance) and who demonstrate promise of attaining
higher level skills; and (b) attorneys with substantial
general experience (more than four years of appellate practice or
more than ten opening briefs of substance) but do not yet show promise of attaining
higher level skills.
Performance Expectations: Must produce work of at least standard quality,
requiring little assistance to perform basic duties and make steady progress acquiring skills to handle cases on an independent basis.
Types of Case Assignments: May be given class A or B cases on
an assisted basis.
Level III. Attorneys at this level have moderate relevant experience (ten or more opening
briefs of substance or the equivalent), and produce work indicating the ability
to handle simple and intermediate complexity cases on an independent basis.
Performance Expectations: Must consistently produce work of good
quality, requiring assistance only to perform
more complex duties.
Types of Case Assignments: May be given cases through class
C on an assisted basis or cases through class B on an
Level IV. Attorneys possessing superior qualifications
and considerable relevant experience (20 or more opening briefs
of substance or the equivalent) and whose work indicates an ability to handle
intermediate and complex cases on an independent basis.
Performance Expectations: Must consistently produce work of very
good quality, requiring assistance only to perform the most
difficult and complex duties.
Tyoes of Case assignments: May be given cases through Class D on an
Level V. Attorneys essentially considered
criminal appellate specialists, with the highest qualifications and
extensive relevant experience, and whose work indicates an ability
to handle the most complex cases on an independent basis.
Performance Expectations: Must produce work of consistently very good
to excellent quality and use assistance when requested only
at sophisticated levels.
Types of Case Assignments: May be given any case on an independent
2. Criminal and Delinquency Case Classifications
A: Sentence of probation.
B: Sentence of at least 1 year but less than 5 years.
C: Sentence of at least 5 but less than 15 years.
D: Sentence of life in prison.
E: Life without possibility of parole.
3. Distance from court as a factor in panel attorney admission
Generally, attorneys who reside some distance for the court and may incur substantial
travel costs will not be placed on the panel if equally qualified
local attorneys are available. However, we cannot recruit
an adequate number of attorneys qualified to handle more serious
cases without using some attorneys who live outside the local area.
Another factor relating to distance is our continuing
goal of creating a substantial panel in our
appellate district. Historically, we have had few criminal appellate practitioners in our district, though this has been improving in recent years. Thus, we are committed
to the professional development of attorneys in our district
who wish to handle indigent appeals.
With these factors in mind, SDAP has formulated the following
(1) Preference will be given to applicants whose offices are within the geographic
boundaries of the Sixth Appellate District. This preference supports creating and maintaining
a substantial criminal appellate bar in our district.
(2) Moderate preference will be given to attorneys within an approximate 150 mile radius of
San Jose. This radius
approximately corresponds to the most distant location from San Jose within
the Sixth Appellate District. The decision to admit an applicant
within such distance will be made solely on the attorney's demonstrated
skill and experience.
(3) For attorneys who work significantly further than 150 miles
from San Jose, panel admission and retention will depend
on the demonstrated ability to handle substantial jury trial
appeals on an independent basis. Nonetheless, some newer attorneys who indicate considerable promise may be admitted to the panel, even if they are located more than 150 miles from San Jose and will initially receive cases on an assisted basis.
Once accepted, an attorney is expected to be
reasonably available for appointments. While we recognize
that an attorney cannot always accept new assignments,
repeated refusals to accept cases may lead to removal from
Under Rule 8.300(d), the project director must "review and evaluate the performance of each appointed counsel
to determine whether counsel's name should remain on the same
appointment list, be placed on a different list, or be deleted from the list."
This requirement is in the contract SDAP signs each year with
the State of California.
Panel attorney performance evaluations is a key
function of the appellate projects The state has
an obligation not simply to provide counsel to indigent appellants,
but also to provide effective representation. The chief evil that
led to the appellate projects' creation was appointment
of counsel insufficiently skilled or experienced
to provide effective appellate representation.
When the opening brief is filed and again when the final compensation
claim is reviewed, project staff prepare a qualitative written evaluation of the
panel attorney's performance in that case. This evaluation
is normally made by the staff attorney who either actively assisted
in the case or monitored the case that was assigned on an independent basis. The evaluation rates the
attorney in six areas: issue selection and definition, style
and form, research, responsibility, argumentation, and relationship
with client. A letter grade (ranging from A to F) is awarded
and a recommendation is made as to whether the attorney's rank should
After review by the executive director, these evaluations
are routed to a file maintained for each panel attorney. This
file also contains occasional oral argument evaluations. An egregiously poor performance may be the subject of swift review
and action by the executive director.
The main work of evaluation is done during the annual panel
review, conducted by the entire attorney staff. A panel review
sheet summarizes work since the last review. The sheet lists each case handled since the last evaluation and the overall rating received on the case. Prior yearly review
sheets are in the attorney file, and information from them
is often included in the general comment section. The review process results in a recommendation to keep the attorney
at the same level, advance the attorney to a higher level,
demote the attorney to a lower level, or remove the attorney from the panel.
C. PROBATION AND REMOVAL
Under rule 8.300(d), a panel attorney may be removed. Generally
speaking, SDAP removes attorneys for one of three reasons:
(1) a pattern of poor performance; (2) inadequate progress
toward the ability to handle cases independently; or (3)
failure to handle a significant number of cases.
SDAP endeavors to assist attorneys in improving their skills.
Thus, attorneys will often be given written notice when their
performance has been poor.
Probation letters are sent to attorneys whose work, while
minimally acceptable, needs improvement. The letter specifically
states the areas of performance what need improvement. We
are as tactful as possible, while clearly stating the
need for improvement. Many attorneys ultimately removed
from the panel had received probation letters but failed
to improve. Moreover, some attorneys have been removed without
a prior probation letter in cases of client abandonment or
other unprofessional conduct which indicates unfitness
for future appointments. We also sometimes send an "encouragement"
letter, letting the attorney know that he or she will be promoted
if a certain problem is resolved.
If an attorney wishes to discuss SDAP’s evaluations, you
should contact the executive director. But, to foster
absolute candor by its staff attorneys, SDAP does not release
a panel attorney’s written evaluations. Nonetheless, the executive
director will provide oral summaries of recent evaluations
D. USE OF ASSOCIATE COUNSEL
As a matter of statewide policy, associate counsel may not
be used in an assisted case except under extraordinary circumstances
and with the project director's prior approval. Associate
counsel may be used in independent cases. The name and California
State Bar number of the associate counsel must be provided
to SDAP. In addition, the use of associate counsel is governed
by certain guidelines.
The first such guideline was stated in a 1984 memorandum from
the Administrative Office of the Courts: “Appointed counsel
shall not delegate to others those functions that require
the ability and experience for which counsel was appointed.
Appointed counsel shall supervise and have full responsibility
for the services provided by others.” This guideline is consistent
with an attorney’s professional duty to perform competently.
(See Rules of Professional Conduct of the State Bar of California,
rules 1.1 [attorney has a duty to perform competently], 5.1 [attorney has duty to ensure subordinates comply with the Rules of Professional Conduct].)
In making case assignments, SDAP relies on our evaluation
of the panel member's abilities. Our screening, evaluation
and case assignment processes are undercut if a panel attorney
allows others to assume control over the case.
Any substandard work produced by associates will damage the
standing of the panel attorney appointed to the case. Indications of excessive delegation
will have a negative impact on the panel attorney's evaluations.
These indications include situations in which our communication
about a case is conducted predominantly with an associate,
and in which our communication with the panel attorney reveals
a lack of personal knowledge about the case.
Maintaining personal control over a case requires:
(a) adequate personal knowledge of the record on appeal; (b)
adequate personal communication with the client; (c) adequate
personal communication with the monitoring staff attorney;
(d) personal knowledge of the applicable law sufficient to
maintain full tactical control over issue selection and written
A panel attorney may not delegate the duty of reviewing the record to associate counsel. Rather, the panel attorney has the obligation to personally review the entire record. It is acceptable for the panel attorney to employ others to
assist in legal research and the drafting
of pleadings. Adequate supervision must be maintained over
assisting attorneys, and personal responsibility for the
accuracy and quality of all work remains with the appointed attorney.
These guidelines are intended to clarify the requirement by
the Administrative Office of the Courts that appointed counsel
supervise and have full responsibility for the service performed
by others, and not delegate functions that require the ability
and experience for which counsel was appointed.
The time spent by associate counsel is billed in the identical
manner as time spent by appointed counsel. For example, if
associate counsel read the record, the attorney’s time should
be billed as record review time. The time claimed for any
billing category should be the sum of appointed counsel and
associate counsel’s time. Additionally, a breakdown of how much associate time has been billed in
each category must be provided. It is essential to note that the use of associate
counsel does not alter the application of the fee guidelines.
Compensation will be paid only for the amount of
time a reasonably experienced appellate attorney would
have taken to handle the case.
E. USE OF LAW CLERKS AND PARALEGALS
Law clerks and paralegals may be used on both assisted and
independent cases. Appointed counsel must, of course, closely
supervise the assistants.
Time spent by law clerks and paralegals is reimbursable
at your actual cost with a cap of $25 per hour. Such time
must be claimed on the expense portion of a fee claim. The
services performed must be itemized. Editing and formatting briefs is deemed secretarial work and is not compensated as law clerk or paralegal time.
F. PROFESSIONAL LIABILITY COVERAGE
Since the formation of SDAP, the organization has maintained professional liability coverage.
Our policy covers panel attorneys appointed on SDAP cases. If
a lawsuit is filed against a panel attorney, it is the attorney’s
obligation to promptly report the filing to the executive director. The matter will then be referred to our malpractice
carrier. Attorneys should also report a client's threat to sue.
CASE APPOINTMENT AND
A. REVIEW FOR CLASSIFICATION
The superior court clerks send copies
of notices of appeal filed in criminal, juvenile, and civil commitment proceedings to SDAP on the assumption that SDAP or a SDAP panel attorney will be appointed.
This facilitates our review of the cases and frequently means
the case is worked up for appointment before or shortly after
our notice of appointment arrives from the Court of Appeal.
SDAP paralegals include the Santa Clara County Superior Court
in their daily rounds. The paralegals
review the court files of cases in which notices of appeal
have been recently filed. They screen to determine if counsel
has been privately retained for appeal. They copy documents
from the file and prepare a summary of information which will
help in the classification process. The paralegals also attempt
to obtain a current address or state prison location for the
Once a paralegal has worked up a case, the executive director
will review the file and assign it to a SDAP staff attorney.
Upon receiving the file, the staff attorney will review it
to determine if the notice of appeal is sufficient and preserves
all possible issues. The staff attorney may make further inquiries.
In the meantime, SDAP sends an introduction letter to the
client. It contains some basic information regarding the appellate
process and it provides the name of the staff attorney assigned to the case.
The staff attorney prepares the case for a meeting held approximately every two weeks. The executive director and all staff attorneys attend. The staff
attorney briefly describes the case as well as possible issues and impressions.
The executive director or other attorneys may suggest a panel
attorney who has recently handled a similar issue or who has
some relevant expertise with respect to the potential issues
in the case.
After the meeting, the responsible staff attorney contacts
the panel attorney. To assist the panel attorney in deciding whether to take the case, the staff attorney communicates information about the
nature of the case, whether the record is ready and other
If the panel attorney accepts the case, a notice of recommendation of counsel
is prepared and filed with the Court of Appeal. Copies of
the notice of recommendation of counsel are mailed to all
parties and the client. Upon orally accepting a case,
counsel should presume that an attorney-client relationship
When SDAP files its notice of recommendation of counsel, appointed
counsel is sent a copy of pertinent documents in SDAP’s file.
These documents will inform the panel attorney about the case
and will include the client’s address.
If a panel attorney does not accept an offered case, the staff
attorney will inquire as to when counsel will be available
for a new case. SDAP maintains a record that the case has
been refused and that counsel will be available on a certain
B. ASSISTED, INDEPENDENT AND CONFLICT CASES
At the time counsel is selected, a determination is made as
to whether the case will be assigned on an assisted, independent
or conflict basis. Counsel should be familiar with SDAP’s
procedures for each form of assignment. In assisted cases, Regardless of the
nature of your appointment, you must serve SDAP with all of
your filings in a case. Electronic filing makes this a simple task,
An assisted case is one in which the panel attorney will consult
and work closely with the staff attorney. Absent unusual circumstances,
a single staff attorney will work on the case from beginning
to end. The record on appeal will be routed to the staff attorney
who will review the record and prepare an assistance letter
that provides the panel attorney with issue spotting
and research leads. The letter is by no means an outline
of the opening brief. Counsel has an obligation to thoroughly
review the record and come to an independent conclusion on
arguable issues. It will be helpful to consult with the staff
attorney prior to drafting the brief if there is a difference
between the panel attorney's decision on an issue and the
views expressed in the assistance letter. When assisting attorneys with more experience, the staff attorney will read the record and take notes but will not provide the panel attorney with issue-spotting and research leads. Appointed counsel must consult with the staff attorney about the need for any augments to the record and then provide a list of issues the attorney believes should be argued on appeal as well as potential issues that were rejected. This deferential level of assistance enhances the development of issue spotting skills.
Once an opening brief is drafted, a final draft must be
transmitted to the staff attorney for review, discussion and
approval. SDAP’s policy is to require that a draft be submitted
at least five days prior to the filing deadline. If that is
not possible, you should contact the staff attorney and be
prepared to file a request for extension of time.
Most of the assistance time is spent on record review, legal
research of potential issues, and drafting of the assistance
letter. Nevertheless, the staff attorney is available to consult
during the course of the appeal. You may periodically receive
notes regarding unpublished opinions on similar issues, citations
to recent decisions that may be relevant to your issues,
or letters suggesting points to be made in the reply brief.
An independent case is assigned based on the assumption that
the attorney is skilled in handling cases without the need
for guidance in issue spotting and brief writing.
The SDAP staff attorney assigned to monitor the case will
review copies of all briefs, notices and orders
in the case. The staff attorney is available to consult at
any time. Some of our most experienced attorneys call to discuss
issues and solicit ideas in independent cases.
The compensation claims are reviewed by the attorney who is
either assisting or monitoring the case. It is up to that
attorney to complete the evaluation of work performed and
prepare a detailed recommendation before the claim is forwarded
to the executive director for approval.
When there is a conflict with the representation of a particular
will recommend appointment of counsel but will declare a
conflict. SDAP is still available to answer
procedural questions or to consult on substantive matters
consistent with the applicable rules of ethics. Compensation
claims in conflict cases are sometimes still sent to SDAP.
C. GETTING MORE CASES
SDAP decides which panel attorney to
select for a particular case based on a number
of factors. We consider factors about the case such as sentence
length, record length, and the nature and complexity of issues.
We also consider factors about panel attorneys, such as relative
experience level, quality of past work, and demonstrated expertise
in handling particular issues or types of cases, and number
of appointments the attorney has received in the preceding
If you want a new appointment,
you may call and let us know.