Attachments

• Use of Translators
• Memo from the AOC Regarding Guidelines
• Statement of Policy Regarding Interim Claims

Introduction

Under our arrangement with the Court of Appeal, compensation claims are to be sent by you to FDAP, not to the court. FDAP makes the recommendation for the amount of hours and expenses approved; but please note, claims are subject to random audit by the judiciary's Appellate Indigent Defense Oversight Advisory Committee (AIDOAC), and AIDOAC may alter the amount recommended. In highly unusual cases, the court itself may make the final decision as to compensation.

Claims are evaluated under the compensation guidelines. The hourly rate for panel attorneys varies depending upon the type of case. These guidelines originally were based upon a survey done of experienced appellate attorneys in California by Appellate Defenders, Inc. This survey assessed what time reasonably "would be devoted to the appeal by an attorney who is experienced in handling criminal appeals." The guidelines were subsequently approved, in their current form, by the courts and Administrative Office of the Courts in November, 1989 and modified periodically since 1989. The experience of all projects around the state has been that these guidelines have generally resulted in fairer and more consistent compensation awards.

The panel attorney bears the obligation to keep track of hours. You should also attach an explanation for work which you feel justifies compensation beyond the guidelines. Total processing time from FDAP's receipt of a claim to processing by the AOC and then to the Controller's issuance of a check averages approximately three to five weeks. (Note: final claims in Wende and Sade C. cases cannot be forwarded by FDAP to the AOC until 30 days after the filing of a Wende brief or Sade C. statement.)

The guidelines are neither a floor nor a ceiling on panel attorney compensation in a given case. You should bill only the amount of time you have actually spent on a given task, even if that amount is less than you believe the guidelines would permit. On the other hand, if you bill above the guidelines amount and that amount is justified, you may be awarded full compensation as claimed, but you MUST include an explanation for hours clearly over guidelines.

If you anticipate unusual expenditures for travel or other expenses, you should consult with your FDAP buddy about seeking advance approval from FDAP and/or the court. For example, although the guidelines provide for reimbursement for expenses for expert witnesses, it is a rare case in which such an expenditure is needed. Before hiring either an expert witness or an investigator you must discuss the matter with your FDAP buddy and obtain pre-approval.

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A few specific areas concerning compensation claims:

Investigators/Experts

FDAP is authorized to approve, in appropriate cases, requests for funds up to $900 for investigator and/or expert services (as long as the expenses are also within the approved rates of $65/hour for investigators and $125/hour for experts). Requests for more than that amount, or for a higher rate, must go directly to the court's Managing Attorney.

A few points in connection with the question of when to go directly to the court, and when to go to FDAP:

-If you reasonably believe from the outset that you will need more than $900 (or that you are requesting expenses at a higher rate), you should make the request directly to the court.

When you submit the request to the court, you should: (a) entitle it: “Ex Parte Application for [Investigator/Expert] Funds;” (b) address it to the Presiding Justice of the division; and (c) mail it, however, directly to Frank McGuire, Managing Attorney, Court of Appeal. (As an Ex Parte application, you would not serve the Attorney General.) Mr. McGuire will review the application initially, but under the new procedure he will then submit it to the Presiding Justice and the P.J. will issue an order either granting or denying the funds.

-If you reasonably believe that you will only need $900 or less to complete the services for your case, you should make the request to FDAP.

-The more difficult situation is where you reasonably believe that an initial investigation/expert for less than $900 would reach a fairly definitive point at which you would know either: (a) it did not pan out and nothing further will occur; or (b) it did pan out and there are now clear follow-up steps that will be needed which will bring the total cost above $900. In that situation, it is proper to bring the initial request to FDAP, and then subsequently go to the court for the further funds if the initial showing warrants it. However, the court does not want a situation where you know you will inevitably be asking for more money, but go to FDAP first to try to get your "foot in the door." Rather, it would be proper to go to FDAP initially, e.g., in the following types of situations:

(1) There was an alleged favorable witness who was not called at trial; the request is to FDAP to send an investigator, for less than $900, to find the witness. If the witness is not found, or if the witness is found but not helpful, that would be the end of it. If the witness is found, and based on statements from the witness there are now new leads, you could then go to the court for additional funds based on what the initial investigation had shown.

(2) An expert will, for less than $900, review some materials (e.g. appellant's medical records). If the review does not result in anything beneficial, that would be the end of it. If the review is positive, you could explain to the court what the expert has told you verbally and then request further funding from the court, if necessary, for the expert's declaration if that would take the total over $900.

As noted, there are no precise guides, but where you reasonably believe from the outset that you likely will need more than $900 you should make the initial request directly to the court.

For expenses relating to interpreters, see "Translator/Interpreter" under expenses in the guidelines and FDAP's Translator Information sheet.

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Associate Counsel

If you use associate counsel and/or paralegals, their time will be factored into the time considered reasonable for you to expend on briefing. In other words, the time considered reasonable for you to have expended on a given task will be reduced in accordance with the amount of assistance you received from associate counsel and/or paralegals on that task.

AIDOAC adopted a policy at its March 2000 meeting that:

"1. Prohibits an attorney handling a case on an assisted basis from using associate counsel, except under extraordinary circumstances with prior approval of the project director; and

2. Requires a panel attorney to submit to the project the name and California State Bar number of associate counsel."

Thus, it is no longer permissible to use associate counsel in an assisted case, except with prior approval of the project director.

If you do use associate counsel in an independent case (or have gotten approval to use counsel in an assisted case) you must use the associate counsel form when you submit a compensation claim.

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Use of Prior Briefing

If you use an argument which is substantially based on the same argument used in a prior case, you must inform FDAP of that fact on the "Prior Briefing Form," and explain what new work you have done.

The AIDOAC committee requires that you use the "Use of Previous Briefing" Sheet. It requires you to indicate whether you have used prior briefing "to a substantial extent" in preparing any of the arguments in the current case. It has generally been the requirement that counsel indicate such usage, but now AIDOAC wants this standard form used.

Please note that "substantial" usage does not include re-using passages on general principles such as standards of review or prejudice (the guidelines assume experienced attorneys will have access to and use such materials); rather, the substantial use refers to the actual argument itself. Similarly, re-use of some of the basic black-letter caselaw as a foundation for the argument would not usually rise to the level of substantial recycling of the prior brief.

However, where the argument itself is significantly taken from the prior briefing you should indicate that on the form, and explain roughly how much was prior briefing and how much was new, e.g.: "Argument I: about 40% was copied from previous briefs I have written. That 40% required approximately 2.0 hours to adapt the argument to the facts and update the citations." Where appropriate you could also explain that a number of the cases discussed were new, as well as describe significant new factual material.

All claims must include a Use of Previous Briefing form. You do not need to submit the sheet in a Wende case.

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Reply Briefs

A special note about reply briefs is that the formula of one-third the time spent on the opening brief refers to the actual written AOB work product, exclusive of time spent on unbriefed issues. Also, counsel should be especially mindful as to reply briefs that the compensation claimed should be based on actual time expended. The one-third formula may be one of the less precise elements of the guidelines; often, a short and straightforward reply brief will justify compensation at a level less than that yielded by the one-third formula, while a complex reply brief addressing points raised by the respondent can justify an award of compensation greater than that provided by this formula.

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Claim Form and Guidelines

You may submit your claim either electronically through the online eClaims system or you may manually submit a hard copy of your claim. If submitting a hard copy you must use the AOC's compensation claim form and the form must be typewritten (i.e. not handwritten). All the claims in any particular case must be in the same format, either electronic (in eClaims) or in hard copy form. More detailed information about the two formats is found below.

If your tax identification number changes, be sure to inform FDAP and the AOC in writing (preferably on your letterhead) with your signature.

Below is a memo from the AOC setting out the court's general guidelines for determining compensation and reasonable expenses.

  Manual/Hard-Copy Claims

If you submit your claim manually, you must use the compensation claim form provided by the Administrative Office of the Courts, which also provides instructions.The claim form must be typewritten. (You can also use claim software offered by private vendors.)

  eClaims

What Claims Can Be Submitted Through eClaims? You may submit your First District compensation claims, both interim and final, through eClaims, but only for cases in which no paper claim has yet been submitted. In other words, all the claims in any particular case must be in the same format, either electronic (in eClaims) or in hard copy form. If you have previously submitted eClaims at CAP in Los Angeles, this is the same program, so you already know how to use it. (Of course, you may continue to submit paper claims manually; both options, using paper or submitting claims electronically using the eClaims program, are available to you.)

Web Browser Compatibility: For computers running Microsoft Windows, eClaims requires either Internet Explorer 5.5 or above or the Mozilla Firefox web browser. For Apple Macintosh computers, please use either the most recent version of Internet Explorer or Mozilla Firefox.

Accessing eClaims: To access the eClaims program, go to FDAP's Web site (www.fdap.org). When you pass the mouse-cursor over the Claims menu item at the top, a submenu appears. Click on eClaims Login. At the login screen, type your login name (your State Bar number) and the temporary password assigned to you when FDAP began the eClaims system or when you were admitted to the FDAP panel. Then choose FDAP for Project, and click on Login. You will be asked at that point to create a permanent password. Here are the rules for permanent passwords:

1. Use 8 characters or more, without spaces.
2. Among those 8 or more characters, use:
   • upper case letters and
   • lower case letters and
   • at least one number. (For example: DAFFYdog123)

Save your new password in a safe and secure place. The eClaims program employs the same level security as a bank. If you do forget your password, call the FDAP claims administrator and she will assist you establishing a new password.

Submitting an eClaim: Now you are ready to begin your first eClaim. The program asks for a case number. Enter the number, including the capital letter prefix, and click on Begin Search. The next screen, Locate Claims - Results, will indicate that no such claim has been found. That's because you have not yet begun the claim. Insert the case number at the end of the line that begins Create new..., and click on Interim or Final (making sure your designation of "interim" or "final" is correct so that you won't have to start over later; and remembering that Wende cases usually have only a "final" claim). This brings you to the Compensation Claims Checklist, where you can access 12 short data-entry pages, with the 13th step for printing the claim for your own records (as required) and submitting it to us electronically.

You'll see that much of the data is already filled in for you. Please check to make sure that it is all correct before submitting the claim. For your first few eClaims, please read all of the instructions contained on the various pages carefully. The program should be relatively self-explanatory.

Timing of Interim and Final Claims

You may submit an interim claim when the appellant's opening brief has been filed, except in Wende or Sade C. cases. (If a Petition for Writ of Habeas Corpus is filed in a Wende or Sade C. case, then an interim claim can be filed.) ^[1] Your final claim can be submitted when the case has concluded (i.e., after the Supreme Court has granted review or the time within which a petition for review can be filed has expired). [CLARIFICATION: You may choose to file the final claim after you have filed a petition for review, but prior to the court's ruling, if you want to forego claiming any time spent on the case after you submit that final claim. Remember, if review is granted, a new case number is issued and all of your new work is billed directly to the California Supreme Court.] AIDOAC policy is that a final claim should be submitted no later than six months after the court's opinion.

A statement of policy regarding interim compensation was adopted by the administrative presiding justices of the Court of Appeal, effective as of July 1, 1992.

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Use of Translators

BASICS

-Translation is only for correspondence and for FDAP-pre-approved prison visits; no reimbursement for translating briefs, petitions and other legal documents.

-The rate for translation is up to $30/hour, unless the court pre-approves a higher rate.

-The Judicial Council website (below) is a good source for finding possible translators.

DETAILS

A good source of translators is Judicial Council's Master List of Interpreters. The list includes more than a thousand "certified" interpreters and "registered interpreters" (you can use either kind). The list covers eight "certified" languages and dozens of "registered" languages.

The list is searchable by language and by geographic area. It will give you the phone number of the interpreter. However, the county search refers to the county in which the interpreter is willing to work; most of the interpreters indicate they will work in all counties, so your list may include people who live in Los Angeles, etc. If you prefer an interpreter who lives in a local county, you can look at their work/home phone numbers and figure out who's local.

Once you have selected a few interpreters from the list, you should:

1. Call the interpreter and try to negotiate a rate of $30/hour. The standard trial court interpreter rates is higher, so it may well be possible for you to negotiate a $30/hour rate. You do not need pre-approval for translation at that rate. Please remember, translation is only for letters or phone/in-person communication. It is not permissible to be reimbursed for translating briefs or other legal pleadings and documents. In-person prison visits, with or without interpreters need pre-approval from FDAP.

2. If you cannot negotiate a $30/hour rate, check with your FDAP buddy to request pre-approval for a higher rate. You should indicate what efforts you have made in terms of getting names from the list, negotiating rates, etc.

If you have a particularly good experience with a $30/hour translator, please call our office and let us know. We will keep a small in-house list and, over time, you may wish to call initially to see if we have any recommended translators for your specific language.

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TO: All Appointed Counsel Administrators

FROM: Administrative Office of the Courts

John A. Toker, Attorney

DATE: June 20, 1984

SUBJECT: Revised Guidelines for Appointed Counsel

We are enclosing a copy of the revised guidelines for appointed counsel that have been drafted by this office for the Supreme Court and the courts of appeal.

The principal purposes of the revision are to achieve uniformity within the courts and, as far as expenses are concerned, to put appointed counsel on a similar footing as retained counsel. The court will reimburse those expenses, to the extent that they are reasonable and necessary, for which a defendant will normally reimburse private counsel. The guidelines also end any distinction between expenses incurred in the office, such as photocopying, and those for outside services.

Reasonable Compensation

1. The compensation rate for appointed counsel for indigent criminal appeals is $70 per allowable hour. ^[2]

2. The compensation rate is multiplied by the number of allowable hours of appellate work to determine a reasonable sum for compensation.

3. The number of allowable hours is an estimate of the amount of time an attorney, experienced in the handling of criminal appeals, might have devoted to the appeal.

4. Appointed counsel should record the number of allowable hours devoted to the following phases of appellate work:

a. Communications with appellant and/or trial counsel;

b. Reviewing the record on appeal;

c. Motions and applications;

d. Writs;

e. Briefs;

f. Oral argument;

g. Travel (specify location and purpose);

h. Post-decision petitions;

i. Other services (specify).

5. The following factors are considered in determining the number of allowable hours.

a. Length of the record;

b. Complexity and novelty of the legal issues;

c. Quality of work.

6. Be able to justify time spent on exceptional procedural matters, such as repeated applications for augmentation of the record on appeal.

7. In a case the court deems extraordinary, the exceptional circumstance of the case will be considered by the court in ordering reasonable compensation. If you believe you have such a case, explain your reasoning at the time your claim for payment of compensation and expenses is presented.

8. In the Courts of Appeal for the First, Second, and Fifth Districts, you may submit one request for an interim payment of compensation and reimbursement of necessary expenses actually incurred up to that time, at the time of, or after, the filing of the opening brief. [Note: All courts of appeal now permit interim claims.]

9. In the courts of appeal the final claim for payment of compensation and expenses is not to be submitted until your services have been concluded; i.e., after the Supreme Court of California has granted a hearing or the time within which it can do so has expired, or after your services have been otherwise terminated.

10. In the Supreme Court you may submit a request for payment of compensation and expenses every 60 days.

Necessary Expenses

The hourly fee should cover all overhead related to a case, with the exception of the reimbursable expenses listed below. These expenses will be reimbursed to the extent that they are itemized and are reasonable and necessarily incurred during the course of the appeal. Prior approval may be required for extraordinary expenses, such as for travel and expert witnesses.

1. Photocopying

The costs of photocopying will be reimbursed, whether the copy is done on counsel's machine or by a copying service.

2. Postage and delivery costs.

3. Telephone charges.

4. Travel expenses.

The court will determine the reasonableness and necessity of travel expenses on a case-by-case basis. Counsel is cautioned that travel expenses are not considered necessary when the purpose of a trip may reasonably be accomplished in another way, such as by telephone or correspondence. When travel is required, reasonable and necessary meals and lodging will be reimbursed.

5. Services of paralegals, law clerks and associated counsel.

Counsel shall be reimbursed for the compensation of paralegals and law clerks who are not members of the State Bar of California, at the rate of $25 per allowable hour. Compensation of members of the State Bar shall be reimbursed at the same rate per allowable hour as appointed counsel.

Reimbursement of the compensation of all persons performing legal services, other than appointed counsel, shall be subject to the following conditions:

(a) In submitting a claim for reimbursement, counsel shall describe the legal services performed by each other person so the court can evaluate the reasonableness of the services and expenses as part of appointed counsel's overall claim. It is expected that the time that is devoted to legal services by others will reduce the time that appointed counsel will devote to those services.

(b) Appointed counsel shall not delegate to others those functions that require the ability and experience for which counsel was appointed.

(c) Appointed counsel shall supervise and have full responsibility for the services performed by others.

6. Expert witnesses.

The compensation of expert witnesses shall be reimbursed at the same rate per allowable hour as appointed counsel and the same items of expense shall be reimbursed as for appointed counsel.

Secretarial Services Not Reimbursable

The costs of secretarial services, word processing and the like are considered part of counsel's overhead and are not reimbursable, whether performed by an employee or an independent contractor.

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TO: First District Appellate Project

California Appellate Project, Los Angeles

Central California Appellate Program

Appellate Defenders, Inc.

Sixth District Appellate Program

FROM: Mary Carlos, Manager

Court Appointed Counsel

RE: Interim Payment of Claims

DATE: June 16, 1992

Enclosed is the Statewide Policy on Payment of Interim Claims which the administrative presiding justices have adopted. It is important to note that the policy is intended to address a specific problems. It is not intended as a solution to the current fiscal problems of the state and is, in fact, revenue neutral to the courts. The policy includes the following changes made in response to the comments received from the administrators and panel attorneys:

The preamble has been amended to reflect the intent of the policy more accurately.

Expenses will be exempt from the 5% holdback and will be considered in full at interim just as they are currently.

Only a final claim will be accepted in Wende matters. ^[3]

Unbriefed issues may continue to be included in interim claims in those districts that currently accept them at interim. ^[4]

Justice Kremer has indicated that Fourth Appellate District already has a procedure in place to ensure that interim payments do not exceed the reasonable value of services and costs as ultimately determined by the court on review of the final claim. Fourth Appellate District will continue to use that procedure.

The policy becomes effective July 1, 1992 for all claims filed after that date. The claim form will be modified as quickly as possible and will be sent to you separately. Please notify the attorneys on your panel of the adoption of the policy.

Attachment

cc: Administrative Presiding Justices

Clerks of the Court

Amounts paid to appointed counsel on interim claims should approximate the reasonable value of services plus costs rendered to date. However, the ultimate determination of reasonableness cannot easily be made until the case is concluded. Each district should adopt a procedure to ensure that interim payments do not exceed the reasonable value of services and costs as ultimately determined by the court on review of the final claim. The following procedure is deemed appropriate to achieve that objective:

1. Maximum payment of interim claims is set uniformly at the lesser of 95% of the amount claimed for hours expended or 95% of the appellate project's recommended amount for hours expended.

2. Interim claims will continue to be filed in each district on the same basis as currently, that is, those districts which require that interim claims be based on the prima facie allowance will continue to do so and those districts which accept interim claims based on the ordinary range will continue to do so. Similarly, those districts which accept interim claims for time spent on unbriefed issues will continue to do so.

3. Judicial review of interim claims should be eliminated for claims that fall under a "trigger value" to be set individually by each district. The processing of these interim claims, including arithmetic verification and calculation of the amount to be paid, should be delegated to non-judicial personnel. Interim claims in excess of the trigger amount, or any claim that appears unusual, will be referred for judicial review. ^[5]

4. Interim claims will not be accepted for Wende matters. ^[6]

5. Expenses are not subject to this policy and may be authorized in full at interim.

6. No other exclusions should be made in the assessment of the interim claim.

7. Administrators should continue the same thorough review of interim claims that they now perform.

8. Unusual claims may, at the discretion of the court, be treated differently than set forth above.
^[1] Generally, in a or Sade C. case, you can submit a final claim 30 days after filing the Wende brief or Sade C. letter, even if the opinion/dismissal has not yet issued. back

^[2] See Attachment B-1, discussing current rates. back

^[3] Additionally, only a final claim will be accepted in Sade C. matters. back

^[4] FDAP accepts unbriefed issues at interim. back

^[5] Claims are no longer "triggered." All claims (except for rare exceptions) follow the same processing scheme. back

^[6] Interim claims also will not be accepted in Sade C. matters. back