I. Determination of Indigency
A. Applicability. This rule shall apply in every 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 shall have their eligibility for appointment of an attorney at public expense determined in conformity with this rule.
B. Application. An individual requesting an appointment of an attorney at public expense shall complete and file with the court a notarized financial affidavit provided by the clerk of the district court setting forth the defendant’s income, assets, and obligations.
C. Determination of Indigency. After reviewing the information contained in the affidavit and , if applicable, the party’s testimony, the court will determine whether the party is indigent. An indigent party is one whom 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 the anticipated cost of counsel.
D. 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 the right for reconsideration in a formal hearing of the findings and conclusions regarding the party’s indigency.
E. Inadmissibility of Information. 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.
F. Fees. Court-appointed counsel shall be paid an hourly fee established by the court. Fee requests shall be verified and shall itemize the service provided, time involved, and expenses incurred.
II. Appointment of Counsel
- Purpose: This rule is to establish a process for the appointment of private attorneys to represent indigent defendants as provided in Neb. Rev. Stat. §§ 29-3901 to 29-3908.
- Applicability: This rule shall not apply to criminal proceedings in which the Court appoints the Public Defender, Nebraska Commission on Public Advocacy, or any other attorney under contract with the county to provide such services.
- Appointments of private attorneys shall be made on an impartial and equitable basis;
- The appointments shall be distributed among the attorneys on a rotation system;
- Cases shall be assigned to attorneys of sufficient experience, skill, and competence to render effective assistance of counsel to defendants;
- Complex cases shall be assigned to attorneys with sufficient levels of experience and competence to provide adequate representation; and
- Less-experienced attorneys shall be assigned cases which are within their capabilities, but should be given the opportunity to expand their experience under supervision.
- Court-Appointed Attorney List:
- Each County Court shall maintain a court-appointed attorney list from which attorneys shall be appointed to represent indigent defendants. In the event that a District Court judge is required to appoint a private attorney, the District Court judge shall utilize the list maintained by the County Court.
- Attorneys shall contact the County Court of each county in which they wish to be considered for court appointments, request to be placed on the court-appointed list, and indicate whether they will accept misdemeanor and/or felony appointments by completing and submitting a registration form, said form being attached as Appendix 2. Attorneys shall notify the County Court in writing when they no longer wish to receive court appointments.
- The County Court shall make the court-appointed list of attorneys available upon request.
- Method of Selection From Court-Appointed List:
- The Court will generally attempt to appoint attorneys from the court-appointed attorney list on a rotational basis, subject to the Court’s sole discretion to make exceptions due to:
- the nature and complexity of the case;
- an attorney’s experience;
- the nature and disposition of the defendant;
- a language consideration;
- a conflict of interest;
- the availability of an attorney, taking into consideration an immediate need to address issues involved in the case;
- geographical considerations; and
- other relevant factors that may be involved in a specific case.
- If the Court in its sole discretion varies from the rotation basis, it may appoint any qualified attorney, whether or not the attorney is on the court-appointed attorney list.
- If an attorney on the court-appointed list is appointed outside the rotational basis established, that attorney’s name shall be placed at the end of the rotation.
- Removal and Reinstatement from Appointment List:
- Judges will monitor attorney performance on a continuing basis to ensure the competency of attorneys on the list. An attorney may be removed from the appointment list by a majority vote of the District Court and County Court judges.
- If an attorney is under consideration for removal from the list, written notification will be given indicating the concerns with the attorney’s performance giving rise to consideration for removal, and the attorney will be given the opportunity to respond in writing or in person before a final decision is made.
- An attorney who has been removed from the list may be considered for reinstatement by a majority vote of the District Court and County Court judges, after the deficiencies contained in the notice have been resolved.
Approved September 9, 2010; amended March 18, 2015.