Utah Sup. Ct. R. Prof'l. Prac. 11-401

As amended through October 28, 2024

Rule 11-401 - Standing Committee on Appellate Representation and the Appellate Roster

Intent:

To establish a standing committee to assist the Board of Appellate Court Judges in determining a roster of indigent service provider attorneys who are eligible for appointment to represent indigent individuals on appeal to the Utah Supreme Court and the Utah Court of Appeals.

To establish uniform terms and a method for appointing committee members.

To establish a schedule for recommending the appointment of indigent defense service provider attorneys to, or the removal of indigent defense service provider attorneys from, the Appellate Roster.

Definitions:

The terms "indigent defense service provider," "indigent individual," "indigent defense services," and "Indigent Appellate Defense Division" are defined in Utah Code Sections 78B-22-102 and -802.

For purposes of this rule:

(1) "indigent appellate defense service provider entity" means a legal defender office that is under contract to perform indigent defense services for one or more counties in the state and has a designated appellate division consisting of one or more attorneys who are employed by the legal defender office and whose primary focus is appellate representation. "Employed by" does not include an attorney who contracts separately with an indigent appellate defense service provider entity;

(2) "indigent defense service provider attorney" means an individual attorney who has been appointed to the Appellate Roster; and

(3) "Appellate Roster" means the list of indigent service provider attorneys who are eligible for appointment to represent indigent individuals on appeal to the Utah Supreme Court and the Utah Court of Appeals.

Applicability:

This rule applies to the internal operation of the Board of Appellate Court Judges and the Committee on Appellate Representation and to courts of record in cases involving indigent individuals.

Statement of the Rule:

(a)Committee establishment. The Standing Committee on Appellate Representation is established as a committee of the Board of Appellate Court Judges.

(1)Composition. The Committee consists of at least:

(A) One attorney from the Criminal Appeals Division of the Utah Attorney General's Office;

(B) One attorney from an indigent defense service provider representing criminal defendants in counties of the first or second class;

(C) The Chief Appellate Officer or designee of the Indigent Appellate Defense Division;

(D) One attorney on the Appellate Roster for criminal appeals;

(E) One attorney on the Appellate Roster for juvenile delinquency appeals;

(F) One attorney on the Appellate Roster for child welfare appeals;

(G) One active or retired judge from an appellate court;

(H) One active or retired judge from another court of record.

(2)Appointment. Committee members are appointed by the Supreme Court and serve staggered four-year terms. The Supreme Court selects a chair from among the Committee's members. Judges who serve as members of the Committee will generally not be selected as chair. Committee members serve as officers of the court and not as representatives of any client, employer, or other organization or interest group. At the Committee's first meeting in any calendar year, and at every meeting at which a new Committee member first attends, each Committee member will briefly disclose the general nature of the member's legal practice.

(3)Vacancies. In the event of a Committee vacancy, the Supreme Court, after consulting with the Committee chair, will appoint a new Committee member from the same category as the prior Committee member to serve for the remaining unexpired term.

(4)Absences. If a Committee member fails to attend two consecutive Committee meetings, the chair may notify the Supreme Court of those absences and may request that the Supreme Court replace that Committee member.

(5)Administrative assistance. The Administrative Office of the Courts will coordinate staff support to the Committee, including the Office of General Counsel's assistance in research and drafting.

(b)Appellate Roster. The Board of Appellate Judges maintains an appellate roster of indigent service provider attorneys skilled in handling criminal, juvenile delinquency, and child welfare proceedings as defined in Rule 1(f) of the Utah Rules of Appellate Procedure, and termination of parental rights proceedings under Section 78B-6-112.

(1)Purpose of the Committee. The Committee's purpose is to recommend to the Board of Appellate Court Judges attorneys for inclusion on an appellate roster of indigent defense service provider attorneys eligible for appointment by the courts of this state to represent indigent individuals on appeal before the Utah Supreme Court or the Utah Court of Appeals. Except as specified in paragraph (b)(9), only attorneys on the Appellate Roster are eligible for such court appointments.

(2)Committee recommendations. The Committee will consider and recommend attorneys for inclusion on the Appellate Roster based on the eligibility criteria listed in paragraph (b)(3), together with any other factor bearing on an applicant's ethics, diligence, competency, abilities in briefing and oral advocacy, and willingness to fairly, efficiently, and effectively provide appellate representation to indigent individuals on appeal. The Committee will consider issues such as quality of briefing, the applicant's frequency of inadequate briefing, summary dismissals, or involuntary dismissals, and the applicant's professionalism and civility. The Committee may also recommend removing an attorney from the Appellate Roster.

(3)Eligibility criteria. To be considered for the Appellate Roster, an applicant must at a minimum complete an application in a form provided by the Committee and:

(A) demonstrate that the applicant has briefed the merits in at least three appeals within the past three years or in 12 appeals total, or is directly supervised by an attorney with that experience;

(B) be a member of the Utah Bar in good standing;

(C) demonstrate knowledge of appellate practice as shown by experience, training, or legal education;

(D) demonstrate ability to adequately and effectively raise and argue issues on appeal and comply with applicable court rules;

(E) certify that the attorney has not, within the past three years, been the subject of an order issued by any appellate court imposing sanctions against counsel, discharging counsel, or taking other equivalent action against counsel because of counsel's substandard performance before an appellate court;

(F) must not have been removed from the Appellate Roster within the past year;

(G) submit at least two appellate briefs, at least one of which is in the relevant subject matter area, to the Committee with a certification that the applicant was primarily responsible for drafting the briefs;

(H) submit a petition under Rule 55 of the Utah Rules of Appellate Procedure if the person is applying to be on the Appellate Roster for appeals from child welfare proceedings;

(I) provide citations for all appellate decisions in which the applicant was counsel of record; and

(J) certify that the applicant has sufficient time and administrative support to accept an appointment to provide indigent defense services for indigent individuals on appeal and to provide the effective assistance of counsel in every case and a willingness to commit those resources to that representation.

(4)Roster Selection. The Board of Appellate Court Judges will approve or disapprove the Committee's recommendations with respect to attorneys to be included on the Appellate Roster. Except as provided in paragraph (b)(7), the Board may not add to the roster an attorney who is not recommended by the Committee.

(5)Mentoring. If an attorney is selected for the Appellate Roster on the condition that the attorney have a mentor, then the attorney must select a mentor who meets the qualifications set forth in paragraphs (b)(3)(A)-(F). A mentor must have briefed the merits in at least three appeals within the past three years or in 12 appeals total. The attorney subject to the mentoring requirement must certify in each brief filed on behalf of an indigent individual that the attorney was directly supervised in drafting the brief by a mentor qualified under paragraphs (b)(3)(A)-(F). The attorney is not required to name the mentor in their certification.

(6)Removal. The Board may at any time remove an attorney from the Appellate Roster based on the attorney's qualifications, skills, experience, or prior performance in any appellate court, or the attorney's failure to maintain eligibility under paragraph (b)(8).

(7)Reconsideration of removal or nonreappointment. An attorney who is removed from the Appellate Roster before the end of the attorney's five-year appointment or who is not reappointed to a subsequent term may petition for reconsideration by submitting a letter to the Standing Committee on Appellate Representation. The letter must be submitted within 28 days from the date of the notice informing the attorney of the removal or nonreappointment. The Committee will review all materials relevant to the attorney's petition and recommend to the Board of Appellate Court Judges whether the attorney's removal or nonreappointment should be upheld. The Board of Appellate Court Judges will approve or disapprove the Committee's recommendations.

(8)Appointment term, CLE requirement, and reapplication.

(A) An attorney's Appellate Roster appointment term is five years.

(B) During an attorney's Appellate Roster term, the attorney must complete at least 12 hours of continuing legal education on topics directly relevant to the attorney's Appellate Roster work. The attorney must certify completion of the hours at the time of reapplication and provide documentation of the hours and topics completed.

(C) To maintain eligibility for appointment to provide indigent defense services on appeal, an attorney must reapply under the provisions of paragraph (b)(3) by September 1 of the attorney's fifth year on the Appellate Roster. The attorney must be recommended by the Committee and reappointed to the Appellate Roster by the Board of Appellate Court Judges at the conclusion of the attorney's appointment term.

(9)Exemption. Attorneys employed by an indigent appellate defense service provider entity or the Indigent Appellate Defense Division to provide indigent defense services on appeal are exempt from the requirement to be included on the Appellate Roster. This exemption does not apply to an attorney or an entity that has contracted with an indigent defense service provider to provide indigent defense services on appeal.

(A)Requirements for entity exempt status. In order to qualify for exempt status, an indigent appellate defense service provider entity or the Indigent Appellate Defense Division must certify in writing every five years to the Appellate Representation Committee that the entity has:

(i) an appellate division whose primary focus is appellate representation;

(ii) a case management tracking system;

(iii) adequate administrative support;

(iv) one or more supervising attorneys who are on the appellate roster; and

(v) oversight and supervision of attorneys who handle appellate cases.

(B)Inclusion in an entity's exemption. To be included in an entity's exemption, an attorney must be employed by the indigent appellate defense service provider entity. Independent contractors do not qualify under an indigent appellate defense service provider entity's exemption.

(c)Annual schedule. The Committee must meet at least annually and must submit its annual recommendations to the Board of Appellate Court Judges by December 31. If the Committee determines that additional recommendations should be submitted to the Board of Appellate Court Judges, the Committee may call for additional applications at any time. The Board of Appellate Court Judges will at its next meeting thereafter approve or disapprove the Committee's recommendations of attorneys to be included on the Appellate Roster.

(d)Contracts in effect before this rule's adoption. An attorney who, before this rule's adoption, contracted with a government entity to represent indigent individuals on appeal is subject to the provisions of Rule 38B of the Utah Rules of Appellate Procedure. Upon the contract's termination, expiration, or renewal, the attorney is subject to this rule.

Utah. Sup. Ct. R. Prof'l. Prac. 11-401

Adopted February 28, 2018, effective 5/1/2018; amended October 30, 2018, effective 10/29/2018; amended effective 10/8/2019; amended October 25, 2021, effective 11/1/2021.