Rule 3-13. Appointment of Counsel; Indigent Parties; Standards and Procedures
Rule 3-13. Appointment of Counsel; Indigent Parties; Standards and ProceduresA. Applicability. These rules shall apply in every criminal proceeding in which the laws of the United States or the laws of the State of Nebraska establish a right to be represented by counsel. All parties who have a right to be represented by an attorney, including juveniles, shall have their eligibility for appointment of an attorney at public expense determined in conformance with these rules.
B. Definition of Terms. The following definitions shall be applied in connection with these rules:
(1) "Anticipated Cost of Counsel" shall mean the cost of retaining private counsel for representation on the matter before the court, as estimated by the court with reference, when applicable, to actual fees and retainers quoted for representation in the case by attorneys who practice in the area.
(2) "Available Funds" shall mean a party's "liquid assets" and "disposable net monthly income" calculated after provision is made for the party's bail obligations. For the purpose of determining "available funds," the following definitions shall apply:
(3) "Basic Living Costs" shall mean the average amount of money spent each month for reasonable payments, including loan payments, toward living costs such as shelter, food, utilities, health care, transportation, clothing, education and child support, alimony, or other support payments.
(4) "Disposable Net Monthly Income" shall mean the income remaining each month after deducting amounts paid for income taxes, Social Security taxes, contributory retirement, union dues, and basic living costs.
(5) "Income" shall mean salary, wages, interest, dividends, rental income, and other earnings and cash payments such as amounts received from pensions, annuities, Social Security, and public assistance programs, and child support, alimony, and other support payments.
(6) "Liquid Assets" shall mean all real and personal property that is cash or that can be reasonably converted into cash, including pensions, deferred compensation plans, and individual retirement plans, cash on hand, funds provided by friends and relation for the purpose of providing legal services, savings accounts, stocks, bonds, certificates of deposit, and equity in any real or personal property. Any motor vehicle necessary to maintain employment shall not be considered a liquid asset.
(7) "Indigent," for purposes of this rule, shall mean:
(a) A party who is:
(i) Receiving one of the following types of public assistance: Aid to Families with Dependent Children (AFDC), Emergency Aid to Elderly, Disabled and Children (EAEDC), poverty related veteran's benefits, food stamps, refugee resettlement benefits, Medicaid, Supplemental Security Income (SSI), or County General Assistance Funds; or
(ii) Receiving an annual gross income of 125% or less of the current federally established poverty level; or
(iii) Residing in a public mental health facility or is the subject of a proceeding in which admission or commitment to such a facility is sought, provided that where the County Board of Mental Health or the Judge has reason to believe the party is not indigent, a determination of indigency shall be made in accordance with these Rules; or
(iv) Serving a sentence in a correctional institution and has no available funds; or
(v) Held in custody in jail and has no available funds; or,
(b) A party who the court determines is unable to retain legal counsel without prejudicing the party's ability to provide economic necessities for the party or the party's family based on a comparison of the party's available funds and anticipated cost of counsel.
(8) "Party" shall mean a defendant, including a juvenile, in a criminal proceeding, in which a person has a right to counsel.
C. Judicial Advisement of the Right to Counsel. Whenever a party initially appears before the court without an attorney in any criminal proceeding where the right to counsel attaches, the judge shall advise the party, or if the party is a juvenile or is under guardianship, the party and a parent or legal guardian, where appropriate, that (1) the party has a right to be represented by an attorney in the proceeding and (2) if the court determines that the party, or the party's parent or guardian where appropriate, wants, but cannot afford, the services of an attorney, that an attorney will be provided at public expense.
D. Affidavit of Indigency. A party who desires to proceed as an indigent with an attorney appointed by the court may be required to complete an affidavit under oath concerning his or her financial resources on a form consistent with Attachment A to the Comments associated with this Rule appearing in the Appendix Form 6 to these Rules. The affidavit shall require the party to list all financial resources relevant to a determination of indigence. The party shall be advised of the penalties for perjury.
E. Determination of Indigency. If the court finds that the party has not effectively waived his or her right to counsel, and the party has not arranged to obtain counsel, the court may receive the affidavit of indigency and may question the party under oath. After reviewing the information contained in the affidavit and, if applicable, the party's testimony, the court may determine whether the party is indigent based on § B(7)(a), indigent based on § B(7)(b), or not indigent. The court first shall determine whether a party is indigent based on § B(7)(a). If the court finds that a party is not indigent under § B(7)(a), the court shall next determine whether the party is indigent under § B(7)(b). If the court finds the party indigent, it shall make its findings part of the court record.
F. Assignment of Counsel/Notice of Assignment. If the court finds that a party is indigent, the court shall appoint an attorney to provide representation for the party and enter an Order for Appointment of Counsel. The order shall include the name of the attorney assigned to represent the party or shall note the office of the public defender was appointed.
G. Review of Indigency Determination. A party's indigency status may be reviewed in a formal hearing at any stage of a court proceeding if additional information regarding financial circumstances becomes available to the court. A party has a right to reconsideration in a formal hearing of the findings and conclusions regarding the party's indigency.
H. Solicitation for Payment of Cost of Counsel. While determined to be indigent, a party may not be ordered, required, or solicited to make any payment toward the cost of counsel.
I. Inadmissibility of Information Obtained From Party. No information provided by a party pursuant to this rule may be used in any criminal or civil proceeding against the party except, in a prosecution for perjury or contempt committed in providing such information or in an attempt to enforce an obligation to reimburse the state for the cost of counsel.
Approved July 14, 2004; amended June 23, 2010; amended June 12, 2013.
Rule 3-13.001. Appointment of Counsel in Criminal Cases
Rule 3-13.001. Appointment of Counsel in Criminal CasesA. Authority. Pursuant to Neb. Ct. R. §§ 6-1525 and 6-1467, the judges of the District and County Courts of Lancaster County (the Courts) adopt this rule to appoint counsel for any person who is financially unable to obtain representation in felony and misdemeanor cases pursuant to Neb. Rev. Stat. §§ 29-3901 to 29-3908 and §§ 29-3001 to 29-3004 (Reissue 2008 and Cum. Supp. 2012).
B. Statement of Policy. This rule shall be administered so that those eligible for services pursuant to Neb. Rev. Stat. §§ 29-3901 to 29-3908 and §§ 29-3001 to 29-3004 (Reissue 2008 and Cum. Supp. 2012) will not be deprived of representation because they are financially unable to pay for representation. The further objective of this rule is to particularize the process for court appointments in Lancaster County, Nebraska.
C. Appointment of Private Attorneys. The Lancaster County Public Defender's Office shall have first priority to be appointed for any indigent defendant in all criminal cases within the county. In those cases where the Lancaster County Public Defender's Office has a conflict and the case is one where the Nebraska Commission on Public Advocacy may be appointed, the Nebraska Commission on Public Advocacy will have priority for appointment. This rule establishes the process for the appointment of private attorneys to represent indigent defendants when the Public Defender and Nebraska Commission on Public Advocacy are not available. The rules for the composition, administration, and management of the panel of private attorneys pursuant to Neb. Ct. R. §§ 6-1525 and 6-1467 are set forth below.
D. Duties of Appointed Counsel. Attorneys appointed shall conform to the highest standards of professional conduct. Neb. Ct. R. of Prof. Cond. § 3-501.1 requires a lawyer to provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, preparation, and judgment reasonably necessary for the representation. If an attorney cannot properly represent a defendant on his/her charge(s), the attorney has a duty to decline appointment or withdraw from the case.
E. Composition of Panel. The panel of eligible attorneys shall consist of a list of all licensed attorneys who have requested and are willing to accept appointments in criminal cases in the district. The list shall include the name, Nebraska bar number, office address, telephone number, and email address of each attorney. The Lancaster County Court Appointment Coordinator shall maintain the list, and the information concerning the members of the panel (name, bar number, address, telephone, and email only) shall be open for public inspection upon request.
Attorneys who serve on the panel must be members in good standing of the Nebraska State Bar Association, are expected to demonstrate experience and knowledge of the Nebraska Rules of Criminal Procedure and the Nebraska Rules of Evidence, and must display skill in representation and trial advocacy. Members of the panel shall serve indefinitely and continuously at the pleasure of the Courts.
F. Procedure for Appointments. The Lancaster County Court and District Court use computer software which automatically selects attorneys for case appointment in an efficient and unbiased manner. Appointments from the panel will be made on a rotational basis, subject to the court's discretion to make exception due to the nature and complexity of cases.
To facilitate the procedure and to ensure quality representation of indigent defendants in all types of cases, the panel of court-appointed attorneys will be divided into the following categories of appointment:
• Homicide-(Murder 1 or 2) & Felony 1 Cases • Misdemeanor Cases
• Felony 2 and 2A Cases •Traffic-DUI Cases
• Felony 3, 3A, and 4 Cases
G. Request for Appointment. To be considered for appointment to the panel, a private attorney shall complete the form entitled "Appointment Request Form" (Appendix A, County Court Rules) and shall file it with the Lancaster County Court Appointment Coordinator. The County and/or District Court judges will review the request and place the attorney on the list in the appropriate category/categories. In the event a decision is made that the attorney is placed in a category or categories different than those requested, he or she will be notified in writing. If an attorney disputes their category placement, he/she may submit their reason for such dispute. The dispute will then be considered by the County and/or District Court judges and a decision, made by a majority of the County and/or District Court judges will be provided to the attorney, in writing. Any private attorney on the panel may request to be removed from the panel at any time by sending a letter to the Lancaster County Court Appointment Coordinator, 575 South 10th Street, Lincoln, NE 68508, or by sending an email to nsc.lancaster.cc@nebraska.gov.
H. Maintenance of Panel. An attorney may be removed or suspended as appropriate, from one or more appointment categories by a majority decision of the County and/or District Court judges (depending upon the category). If an attorney is removed or suspended, he/she will be notified in writing. If an attorney disputes removal or suspension, he/she may respond by submitting a reason for the dispute and a current resume to the Court at the address or email in Paragraph G above. Reinstatement will then be considered by the County and District Court judges.
I. Effective Date. This rule shall become effective January 1, 2015.