Utah Court Rules – Published for Comment
The Supreme Court and Judicial Council invite comments about amending these rules. To view the proposed amendment, click on the rule number.
To submit a comment or view the comments of others, click on “Continue Reading.” To submit a comment, scroll down to the “Leave a Reply” section, and type your comment in the “Comment” field. Type your name and email address in the designated fields and click “Post Comment.”
Comments cannot be acknowledged, but all will be considered. Comments are saved to a buffer for review before publication.
Posted: November 22, 2017
CJA011-0401 New Rule 11-401: To establish a standing committee to assist the Board of Appellate Court Judges to determine a roster of attorneys eligible for appointment to represent indigent parties on appeal to the Utah Supreme Court and the Utah Court of Appeals.
I am writing to express my support for this much needed rule.
This important rule will serve three critical purposes. It will ensure Utah’s local governments have access to qualified appellate counsel. It will help to ensure the constitutional rights of indigent defendants to effective representation on appeal to Utah’s appellate courts. And it will ensure our appellate Courts see the very best practitioners and legal arguments from which to decide appellate cases statewide.
The rule arose from the Judicial Council’s 2008 study committee addressing appellate representation of indigent defendants, and was promulgated in the 2011 report from that study. The rule was again recently considered, debated, and updated through the Utah Indigent Defense Commission, which represents a broad selection of stakeholders in local indigent defense services: including indigent defense service providers, local government officials, and a retired judge. The rule will help to achieve several improvements to indigent defense services in Utah and is an impressive step by our Supreme Court.
I worked on the task force that proposed this rule. The entire task force felt that the rule was an essential piece of putting in place a program that would remedy the almost complete lack of capable appellate representation for indigent defendants in the rural areas due to the infrequent opportunity to practice appellate law, and the fixed fee contracts that discouraged separate appellate counsel. The effect of the roster will be to create a group of lawyers who will be available for appointment or retention who are able to handle indigent appeals. This will help create a market for that work in rural areas and give local governments a sense of where to go for appellate counsel. I strongly urge the adoption of this rule.
The right to an appeal with competent counsel is critical to the furtherance of justice, due process, and other constitutional protections. Under our current system of indigent defense, this rule and the roster of qualified appellate counsel it creates, is absolutely necessary to ensure that each criminal defendant is provided with qualified, experienced and capable representation on appeal.
As a local government elected official who is charged with the public safety and welfare of my constituents, I think that having an appropriately vetted pool provided on a roster adds a level of protection of a right to counsel for those seeking experienced, capable, and effective appellate representation.
I have reviewed the Nov. 15 draft rule and am generally familiar with the related 2011 Judicial Counsel report. I fully support the thrust of the rule and agree with the other public comments posted so far – the quality of indigent appellate advocacy outside of Salt Lake and Utah counties is underwhelming, and a rule like this can help. My comments are therefore directed at the rule’s structure, not the need for a rule in the first place.
As written, the rule appears to be both underinclusive and overinclusive – talented young attorneys would likely not qualify for the roster, while more experienced attorneys likely would even if their advocacy was not as good. That is, the rule seems to emphasize experience at the expense of quality.
For instance, a young attorney that had an institutional background (either in a firm or in public service) might have solid experience and significant talent writing effective briefs, but could not certify that he or she was “was primarily responsible” for drafting two of them because institutions often produce briefing collaboratively.
On the other hand, everyone knows that plenty of attorneys have tons of experience filing poor briefs. Indeed, that’s what the rule is trying to fix. But it’s exceedingly rare that either appellate court actually sanctions or dismisses an attorney for poor performance, even in cases where the performance was objectively poor (eg., failure to challenge all grounds for a trial court’s decision). I happen to think the courts are right on this point because even talented attorneys miss things occasionally, and sanctions are strong medicine. But it also means that the number of attorneys who can’t certify themselves under (2)(F)(ii) is basically a null set. (Also, why is such certification from the attorney on that point a component of retention, shouldn’t the rule just say the attorney must certify continuing compliance with appellate rule 38B(e), which would mirror the eligibility requirement?)
To be sure, it may be intended that under section (2)(B) the Committee will exercise quite a bit of discretion regarding the quality of a given candidate using subjective scoring of submitted briefs, or something. However, the enumerated criteria in (2)(C) don’t make that clear, so it’s hard to know for sure.
I think it would be good to enumerate the eligibility criteria with more specificity. And the rule should explicitly grant the Committee discretion and flexibility to depart from the those criteria for good cause. One can imagine an judge or institution recommending a recent law clerk, for example, for inclusion on the list in spite of that person not having been primarily responsible for writing two briefs. In addition, I think the requirement to list all appellate decisions where the attorney was counsel of record is bit overkill. Imagine Joan Watt’s list. Finally, it’s unclear what “administrative support” means in (2)(C)(vi). Does a solo practitioner not qualify for the roster because he or she doesn’t have a paralegal? Perhaps time and resources is a better qualification than time and administrative support, which doesn’t seem all that pertinent – Orange Legal is perfectly capable of velo binding and serving a brief. Finally, and not that it’s really the Committee’s problem, but the CLE component of retention might be difficult for attorneys to meet given how inactive the Bar’s appellate section is.