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).
Performance Expectations: 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 independent basis.
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.
Types of Case assignments: May be given cases through Class D on an independent basis.
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 basis.
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 and retention.
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 policies:
(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 the panel.
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 be changed.
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 upon request.
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 argumentation.
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 CLASSIFICATION
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 client.
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 relevant matters.
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 has commenced.
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 date.
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 client, SDAP 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 year. If you want a new appointment, you may call and let us know.