PANEL ATTORNEY QUALIFICATIONS
Rule 8.300 of the California Rules of Court mandates that the
appointed counsel administrator evaluate the qualifications
of attorneys who request appointment to cases. To this end,
SDAP requires that an attorney submit a written application
and two sets of appellate briefs, or equivalent trial court
pleadings in order to be considered for placement on the panel.
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 class.
Uniform statewide panel attorney classification and case classification
and definitions have been adopted by the various California
1. Attorney Classifications
Level I. Attorneys who need substantial assistance
and are able to handle only the simplest cases receive this
classification. These attorneys generally fall into two categories:
(1) relatively new attorneys with little or no relevant experience
(those with less than two years in the practice of law who
have filed fewer than three opening briefs); and (2) the lowest
performers on probationary status.
Category (a): Must demonstrate promising writing, research,
and analytical skills and make steady progress toward skills
required of higher classifications.
Category (b): Must correct deficiencies disqualifying them
from higher levels within a reasonable time to remain on panel.
Presumptive eligibility: May be given class A cases (for a
description of the case classification system, see below) on an assisted basis.
Level II. Attorneys who need at least some
assistance in all cases and whose work indicates ability to
handle cases somewhat more difficult than the simplest are
classified at this level. These attorneys fall into two categories:
(a) attorneys with a modest amount of experience (those who
have one to four years of practice and/or have filed 3 to
10 opening briefs) but who demonstrate promise of attaining
skills of higher levels; and (b) attorneys who have substantial
general experience (more than four years of practice and/or
more than 10 opening briefs) but do not show promise of attaining
skills of higher levels.
Work Product: Must produce work of at least standard quality,
requiring little assistance to perform basic duties.
Presumptive Eligibility: May be given class A or B cases on
an assisted basis.
Level III. Attorneys at this level have a
moderate amount of relevant experience (10 or more opening
briefs or the equivalent), and produce work indicating ability
to handle cases of intermediate complexity on an assisted
basis and/or simple cases on an independent basis.
Work Product: Must consistently produce work of at least good
to very good quality, requiring assistance only to perform
more complex duties.
Presumptive Eligibility: May be given cases through class
C on an assisted basis and/or cases through class B on an
Level IV. Attorneys of superior qualifications
and considerable relevant experience (20 or more opening briefs
or the equivalent), whose work indicates ability to handle
cases of substantial complexity on an assisted basis and/or
cases of intermediate complexity on an independent basis.
Work Product: Must consistently produce work of at least very
good quality, requiring assistance only to perform the most
difficult and complex duties.
Presumptive Eligibility: May be given cases through class
E on an assisted basis and/or cases through Class D on an
Level V. Attorneys who may be considered
appellate specialists, with the highest qualifications and
extensive relevant experience, and whose work indicates ability
to handle the most complex cases on an independent basis.
Work Product: Must produce work of consistently very good
to excellent quality and use assistance when requested only
at sophisticated levels.
Presumptive Eligibility: 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, far-distant attorneys, who may incur substantial
travel costs, will not be placed on the panel if equally qualified,
more local attorneys are available. However, we cannot recruit
an adequate number of attorneys qualified to handle more serious
cases without using some far-distant attorneys.
Another factor in our policy relating to distance is our continuing
goal of creating a substantial panel in the counties of our
appellate district. Historically, there have not been many
criminal appellate practitioners in our district. We are committed
to the professional development of lawyers in our district
who wish to handle indigent appeals.
To accommodate these factors, SDAP has formulated the following
(1) For applicants whose offices are within the geographic
boundaries of the Sixth Appellate District, a preference will
be given. This preference is to support the creation and maintenance
of a substantial criminal appellate bar in our district. This
preference is accorded with recognition that new or inexperienced
attorneys in our district who would like to do appointed counsel
work have little or no opportunity to be admitted to the panels
of other appellate programs.
(2) For attorneys within an approximate 150 mile radius of
San Jose, no preference will be applied. This radius corresponds
approximately 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 demonstrated
skill and experience of the attorney.
(3) For attorneys who are significantly further than 150 miles
from San Jose, admission and retention on the panel will depend
on the demonstrated ability to handle substantial jury trial
appeals on an independent basis.
Once accepted to the panel, an attorney is expected to be
reasonably available for appointments. While we recognize
that an attorney will not always be able to accept new assignments,
repeated refusals to accept cases may lead to removal from
Under Rule 8.300(d), it is part of each appointed counsel administrator's
job to "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."
A similar provision is in the contract we sign each year with
the State of California.
Evaluation of panel attorney performance is one of the key
functions of appointed counsel administrators. The state has
an obligation not just to provide counsel to indigent appellants,
but to provide effective representation. The chief evil that
led to the creation of the appellate projects was appointment
of appointed counsel who were insufficiently skilled or experienced
to provide effective appellate representation.
When the opening brief is filed and again when the final compensation
claim is reviewed, a qualitative written evaluation of the
panel attorney's performance in each case is made. This evaluation
is made by the staff attorney who has either actively assisted
in the case, or, if the case is assigned independently, monitored
the filings, briefs, and opinion. 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 (with a range of A to F) is awarded
and a recommendation is made as to whether the attorney should
be changed in rank.
After review by the executive director, these evaluations
are routed to a file maintained for each panel attorney. This
file also contains oral argument evaluations. An egregious
case of 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. There is a place
to list each case handled since the last evaluation, as well
as the overall rating received on that case. There is a space
to evaluate the attorney's writing, and to list any specialties
the attorney has developed (e.g., search and seizure, sex
sentencing, juvenile, child dependency). A space for general
comments by the attorney is provided. Prior yearly review
sheets are in the attorney file, and information from them
is often included in the general comment section. There is
a space for evaluation of the attorney's performance in the
last year, and for a recommendation for keeping the attorney
at the same level, advancing the attorney to a higher level,
demoting to a lower level, or removing the attorney.
At the panel review sessions, attended by all staff attorneys,
each panel attorney is discussed. There is a space in the
yearly review sheet for additional staff comments. These comments
include oral evaluations of very recent work for which no
interim claim has been filed and hence no written evaluation
made. These comments also include amplification of comments
in written evaluations. This process also serves to inform
staff attorneys about the progress of panel attorneys with
whom they have not recently worked. After such discussion,
the executive director makes the final determination of the
action to be taken.
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; and (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 which need improvement. We
try to be as tactful as possible, while being clear on the
need for improvement. Many attorneys who are ultimately removed
from the panel have received probation letters, but failed
to improve. However, some attorneys have been removed without
a prior probation letter, in cases of client abandonment or
other professional conduct which clearly 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 you wish to discuss SDAP’s evaluations of your work, you
should contact the executive director. In order to foster
absolute candor by its staff attorneys, SDAP does not release
a panel attorney’s written evaluations. However, 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
with the prior approval of the project director. 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.
(Rules of Professional Conduct of the State Bar of California,
Discussion to rule 3-110; attorney has the duty to ensure
the competent performance of the work of a subordinate attorney.)
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. Indications we have of over-delegation
also reflect negatively on our evaluation of panel attorneys.
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 the following:
(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
argumentation; and (e) personal appearance at oral argument
if argument is requested.
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
those who are assisting, and personal responsibility for the
accuracy and quality of all work remains with the panel attorney.
The requirement of personal appearance at oral argument is
due to the impossibility of effectively supervising another's
work in the courtroom.
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, there needs to be
a breakdown of how much associate time has been billed in
each category. It is essential to note that the use of associate
counsel does not alter the application of the fee guidelines.
A fee claim will be analyzed as if an associate attorney was
not used (i.e. compensation will be paid for the amount of
time which 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 these assistants.
The 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.
F. PROFESSIONAL LIABILITY COVERAGE
Since the formation of the Sixth District Appellate Program,
the organization has maintained professional liability coverage.
Our policy covers panel attorneys for their SDAP cases. If
a lawsuit is filed against a panel attorney, it is the attorney’s
obligation to promptly report this fact to the executive director
of SDAP. The matter will then be referred to our malpractice
CASE APPOINTMENT AND
SDAP serves as counsel of record in all cases unless a conflict
of interest is declared. A panel attorney is deemed to be
associate counsel with SDAP. SDAP endeavors to handle the
association of counsel in the most expeditious manner possible.
To this end, the collection of information starts even before
SDAP is appointed by the Court of Appeal. SDAP is responsible
for communicating directly with the client and providing any
necessary services in that interstitial period between representation
by the trial attorney and the association of a panel member.
A. REVIEW FOR CLASSIFICATION
The superior court clerks in the district send SDAP copies
of notices of appeal filed in criminal, dependency, and conservatorship
proceedings on the assumption that SDAP 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 and they travel to Santa Cruz, Monterey
and San Benito Counties on a regular basis. 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 get 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 who
is assigned to the case.
The staff attorney prepares the case for a meeting which is
held approximately every two weeks. The meeting is attended
by the executive director and all staff attorneys. The staff
attorney briefly describes the case, possible issues and impressions.
The executive director or staff members 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. Once an attorney has been selected, there is
consideration of whether the case should be assigned on an
assisted or independent basis and whether there is a conflict
which would preclude SDAP from doing more than making the
recommendation of counsel to the court.
After the meeting, the responsible staff attorney contacts
the panel attorney to seek confirmation that the attorney
is available and will accept the case. Information about the
nature of the case, whether the record is ready and other
matters are communicated to assist the panel attorney in deciding
whether to take the case.
If the case is accepted, 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. Appointed counsel should be aware
that the Court of Appeal does not send counsel a conformed
copy of the appointment order. 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. Regardless of the
nature of your appointment, you must serve SDAP with all of
your pleadings in a case.
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
which will provide the panel attorney with issue spotting
and research leads. The letter is by no means the 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.
Once an opening brief is drafted, a final draft should 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. However, the staff attorney will be available to consult
during the course of the appeal. You may periodically receive
notes regarding unpublished opinions on similar issues, citations
to recent decisions which 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 the areas of issue spotting and brief writing.
The SDAP staff attorney assigned to monitor the case will
review copies of all correspondence, 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
client (usually when there are multiple appellants), SDAP
will recommend appointment of counsel, but will declare a
conflict and be relieved as counsel. In those cases where
a conflict has been declared, 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 still sent to SDAP.
C. GETTING MORE CASES
The process by which SDAP decides which panel attorney to
select for a particular case takes into consideration a number
of factors. We consider factors about the case such as sentence
length, record length, and the nature and complexity of issues.
We 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
There is another consideration on which we place significant
weight: whether the panel attorney has filed the opening brief
in all cases previously assigned by SDAP.
At each appointment meeting, we have two lists of panel attorneys.
One is a list of attorneys who have filed opening briefs in
all their assigned cases, the "available" list. The other
list includes those who have not filed opening briefs in all
their assigned cases, the "unavailable" list. In assigning
cases, we work mainly off the “available” list.
However, increasingly we are assigning cases to attorneys
who have a case in which the AOB has not been filed. We recognize
that panel members need to have an inventory of cases to have
sufficient work, given delays in the progress of cases due
to record preparation or augmentation and delays by opposing
counsel. Also, if you are available for a new appointment,
you may call and let us know that.