FDAP trains and oversees a panel of nearly 300 attorneys who are appointed by the Court of Appeal, First Appellate District, to represent indigent parties in criminal, delinquency, dependency, and civil commitment appeals. When the Court appoints a panel attorney to a case, the panel attorney—not FDAP—is counsel of record. During the appeal, FDAP provides wide-ranging support for panel attorneys.
FDAP provides training, resources, and mentoring to panel attorneys in the representation of their clients. This oversight enables panel attorneys to develop appellate skills which will allow them to take on increasingly complex cases. Each panel appointment is either “assisted” or “independent,” but the range of support within each type varies depending on the panel attorney’s experience and skills, and the needs of the case.
Case Assignment Policies
FDAP administers the appointment of counsel process in the Court of Appeal, First Appellate District. For most cases, FDAP recommends to the Court an attorney from the panel to appoint. (In some cases, FDAP recommends a FDAP staff attorney.) The Court, not FDAP, then issues an order appointing counsel.
Admission to the panel does not guarantee an attorney to any particular number or type of cases, or to remain on the panel. While the recency of an attorney’s last appointment is considered, FDAP does not assign cases based on a strict rotation. Whether a case is suitable for a particular attorney depends upon the nature and complexity of the case and the attorney’s skills and experience. Consideration is also given to the attorney’s current ability to adhere to deadlines, number of outstanding briefs, and frequency and grounds for extensions of time.
FDAP works with panel attorneys, training them on a variety of cases such that they can be appointed to increasingly complex cases and reach independent status. FDAP is contractually obligated to continually review and evaluate panel attorneys, and assess their status on the panel. (See Cal. Rules of Court, rules 8.300(d) and (e)(1). If, following efforts to address performance issues, a panel attorney does not progress or otherwise is not adhering to standards, rules, and policies (e.g. fails to accept sufficient appointments, fails to meet deadlines, fails to communicate sufficiently with clients), then FDAP may remove the attorney from the panel.
An appointment to a specific case can only be made to an attorney who has no actual or apparent conflict of interest. If a panel attorney represented the client in the trial court, with very few exceptions that panel attorney cannot represent the client on appeal. (People v. Bailey (1992) 9 Cal.App.4th 1252, 1254-1255; see also People v. Kipp (2001) 26 Cal.4th 1100, citing Bailey with approval.) Panel attorneys must be alert to potential conflicts and advise FDAP of such conflicts.
Primary Responsibilities of the Appointed Panel Attorney
The appointed attorney is counsel of record and must take responsibility for the case. When FDAP staff attorneys consult about the case, they will only do so through direct communications with appointed counsel, not with an assistant or associate. The final product must be that of appointed counsel.
In all cases the appointed panel attorney is personally responsible for:
- reading the entire record carefully;
- making sure the record on appeal is complete;
- ensuring all necessary pleadings are filed and are factually and legally correct;
- meeting all deadlines; and
- ensuring prompt, proper and thorough communication with the client, FDAP, opposing counsel, and the court.
Appointed counsel may use associate counsel in independent cases only. Under a policy of the Appellate Indigent Defense Oversight Advisory Committee (AIDOAC), assisted attorneys are prohibited from using associate counsel, except under extraordinary circumstances with prior approval of the project director. The appointed attorney using an associate must abide by all requirements noted above and in the AIDOAC Associate Counsel Policy. Additional information regarding compensation for the work of associate counsel is in the claims area of this website
The appointed attorney must ensure that the work of any associate is complete, correct, and up to the quality of the attorney’s own work. The cases FDAP selects for a panel attorney are based on performance in prior cases. Ceding control of a case to another attorney, or failing to properly supervise associate counsel, undercuts FDAP’s efforts to match a qualified attorney to every case. The failure to adequately supervise a subordinate attorney or non-attorney can be a failure to act competently on behalf of a client. (See Rules Prof. Conduct, rule 3-110, Discussion, and cases cited therein.)
Panel Attorney Knowledge of and Adherence to Court and FDAP Rules and Policies
FDAP panel attorneys are expected to be familiar with and adhere to Court and FDAP rules and policies, including:
- Title 8 (Appellate Rules) of the California Rules of Court
- First District Local Rules
- all information contained in this Guide
- the FDAP Appeal Checklist
- the contents of FDAP Panel Alert Emails
- General Claims Information, Claims Guidelines, and the statewide compensation manual
It is important that panel attorneys carefully review the reminders and clarifications regarding deadlines and extensions on the FDAP website (Appeal Checklist, Para 10). Delays not only interfere with the Court’s management of its docket, but can also prevent the Court from granting meaningful relief to our clients.
Be sure to visit FDAP’s website regularly and review all FDAP email announcements to stay up-to-date on rules and policies.
Procedures and Policies for Assisted Cases
Assisted Case Support from FDAP
In an assisted case, a FDAP staff attorney will provide wide-ranging support and oversight. The FDAP staff attorney will generally review selected portions of the record, consult with the panel attorney prior to the drafting of the opening brief, and review the opening brief prior to filing.
The scope of assistance in an individual case will vary depending on the needs of the case and the panel attorney’s skills and experience. In some cases, the staff attorney will provide a memorandum at the outset, setting out possible issues on appeal, pertinent case law, and possible need for augmentation of the record. For more experienced assisted attorneys who have demonstrated aptitude for issue-spotting or writing, FDAP will use a tailored approach (we will refer to the case as “modified-assisted”). For instance, if the panel attorney has gained some experience, FDAP will still review the record, but provide an abbreviated memo or no memo at all. In some rare instances, the issue-spotting and research is largely left to the panel attorney and FDAP does not review the record but does review the opening brief prior to filing. A modified-assisted case is still an assisted case and paid at the assisted rate.
There may be occasions where an attorney has been receiving cases on an independent basis and then is offered a case on an assisted basis. This might not reflect on the attorney’s performance. For example, FDAP may offer a case of greater length or complexity than previous cases, and thus believe some assistance would be beneficial. In this sense, a modified-assisted case can be a stepping stone to more complex independent case assignments. Modified-assisted cases may also be offered where we have noted concerns with the briefing in independent cases, and it would be beneficial for the attorney to work more closely with an assisting attorney.
Cases are assigned based on our ongoing evaluations of an attorney’s work, and movement between assisted and independent status is not uncommon. The director is available to discuss an attorney’s progression on the panel, or any change in case assignments.
Assisted Case Process
In assisted cases, the superior court sends the record directly to FDAP. FDAP will forward the record and any memo to the panel attorney within 10 days of the filing of the record or the appointment order, whichever is later. Once the panel attorney has reviewed the record, conducted preliminary research and become familiar with the case, they will consult with the assigned FDAP staff attorney.
In assisted cases, the panel attorney must:
- Consult with the assigned FDAP staff attorney about the opening brief prior to spending substantial time researching or drafting the issues.
- Submit the opening brief to the consulting attorney for review two weeks before it is due in the Court of Appeal. Provide the brief to FDAP in a word-processed version (not a PDF)—preferably Microsoft Word—to facilitate suggested revisions. The brief submitted to FDAP should be in final form–fully researched, proofread, and complete–in order for the consulting attorney to offer meaningful feedback (although there is no need to send the cover page/table of authorities/table of contents/proof of service to FDAP for proofing). Because the consulting attorney may have suggestions for changes or modifications to the brief, this two-week lead time is very important.
- Not cite the fact that FDAP must review the brief to establish good cause for an extension of time. This is because additional time has been built into the briefing schedule for assisted cases. In the rare instances when the panel attorney has submitted the brief to FDAP within two weeks prior to the due date and the staff attorney is unable to complete the review in a timely manner, FDAP’s responsibility for delay may be cited in an extension request, but only after consultation with FDAP.
- Consult with the FDAP staff attorney about motions. A copy of any motion or document filed with the Court must be served on FDAP.
- Confer with the FDAP staff attorney about other aspects of the case, including whether they want to review the reply brief or other motions, and to discuss the need for oral argument and petitions for rehearing and review.
Procedures and Policies for Independent Cases
If a panel attorney is assigned an independent case before the record is filed, the superior court will send the record directly to the panel attorney. If the panel attorney is assigned after the record was filed, FDAP will have received the record and will send it to the panel attorney.
In independent cases, a panel attorney is not required to consult with the FDAP assisting attorney before filing the opening brief, unless filing a no-issue brief. But, from the outset of the case, FDAP will assign a staff attorney for consultation, and the independent panel attorney may consult that staff attorney about substantive or procedural issues that arise.
On occasion, FDAP may ask to review a draft of the opening brief in an independent case. If FDAP requires this, the staff attorney will provide a rapid turnaround of the draft so as not to impinge significantly on the briefing time.
Timeliness and Extensions of Time
The First District has placed a renewed emphasis on timeliness. The Court may deny extension and augment requests as untimely or for an inadequate showing. For proper representation of a client, it is essential that panel attorneys adhere to the rules and adopt best practices.
When panel attorneys fall significantly behind in their work, FDAP may recommended their removal from one or more cases and/or decline to recommend their appointment in future cases until they are on top of their caseload. Chronic timeliness problems and other failures to adhere to professional standards have been grounds for removal from the panel. Delays not only interfere with the Court’s management of its docket, but can also prevent the Court from granting meaningful relief to our clients.
We recognize that managing an appointed-counsel caseload is challenging, with deadlines driven by events out of counsel’s control, such as when records are produced, when opposing counsel will file a brief, and when the Court will issue an opinion. In addition, personal matters affect us all and can sometimes be a legitimate reason for an extension request. In determining whether to seek an extension of time, attorneys should consider whether the case is time-sensitive and what showing is required for the extension. Counsel should also make sure their extension of time request is itself timely and sufficient in its showing.
In prioritizing work and in making decisions about whether to seek an extension, counsel must consider the time-sensitiveness of the case. Extensions are disfavored, for instance, in short sentence cases, dependency cases, and delinquency cases.
In most cases, extensions can be granted for “good cause.” Rule 8.63(b) lists many factors the Court will consider. But a conclusionary statement that more time is needed “because of press of business” is not good cause.
Significantly, a special rule applies in appeals from orders terminating parental rights, requiring a showing of “exceptional good cause” for an extension. (Rule 8.416(f)) Do not assume that deadlines in other cases will constitute “exceptional good cause.”
In the First District, do not file a request for an extension of time if the brief will be filed within the time allotted by the California Rules of Court, which provides an additional 30 days after the official due date in criminal cases (rule 8.360(c)(5)) and most juvenile cases (rule 8.412(b)(5)) and an additional 15 days in dependency appeals from the termination of parental rights (rule 8.416(g)). The First District will place no stigma upon counsel who file within that time period. If, however, the attorney believes that he or she will not be able to file the brief within the additional time provided by rules 8.412, 8.416, and 8.360, the attorney should file an EOT request before entering the default period. Last minute extension requests are strongly disfavored. Avoid filing the request less than a week prior to the current due date.
Failing to use the Court’s format for an extension can cause counsel to omit important information. While counsel may create their own template, the format must mirror the Court’s form in terms of order and content.
Counsel should explain, with some specifics, what work has been performed on the case since the last deadline. It is important to show that counsel is making progress on the case.
The Court sometimes denies extension requests. Always review the order to make sure it was granted in full, rather than granted in part or denied. Contact FDAP immediately if (1) the Court states “no further extensions will be granted” and counsel will be unable to meet the new deadline or (2) the Court denies an extension request and counsel will be unable to satisfy the then-current deadline.
Augment Motion Timing
Counsel for appellant should file a motion to augment the record within 30 days of receipt of the record in independent cases and 40 days (i.e. 30 days after the 10-day administrative review period) in assisted cases. “Thereafter, motions to augment will only be entertained upon a showing of good cause.” (Local Rule 7(b).) In fast-track dependency appeals, the motion must be filed within 15 days of receipt of the record. (Rule 8.416(d)(2).)
Piecemeal augmentation is strongly disfavored. (An exception might be when the first augment counsel receives reveals additional material to request that counsel could not have know about at the time of the first request.)
Last minute requests for a draft review or no-issue review are very problematic. FDAP staff attorneys have deadlines in their own cases and deadlines related to work of other panel attorneys, so they may not be able to get to the panel attorney’s case right away. If counsel is running into time trouble at the draft stage, advance warning to the FDAP consulting attorney is essential.
Service on FDAP
In all cases, whether independent or assisted, appointed counsel must electronically serve FDAP a copy of every document the panel attorney files in the case. These are necessary for the evaluation process and for reviewing compensation claims.
Abandonment of the Appeal
In all cases, whether independent or assisted, appointed counsel must consult with FDAP before filing an abandonment of the appeal.
No-Issues Review Under Wende, Sade C./Phoenix H., Ben C. & Serrano
In cases in which appointed counsel believes a no-issues brief should be filed pursuant to People v. Wende (1979) 25 Cal.3d 436, In re Sade C. (1996) 13 Cal.4th 952, In re Phoenix H. (2009) 47 Cal.4th 835, Conservatorship of Ben C. (2007) 40 Cal.4th 529, or People v. Serrano (2011) 211 Cal.App.4th 496, the attorney must consult with the FDAP staff attorney before filing. This consultation usually involves sending the staff attorney the record and draft statements of the case and facts. It is also helpful to provide a short account (by phone or email) of any issues you considered.
Consulting with the Assigned FDAP Staff Attorney
A panel attorney calling or emailing to consult about a case should speak with the FDAP staff attorney assigned to that case. Please do not call for the Attorney of the Day unless your assisting attorney is out for the day and it is a true emergency. When a FDAP staff attorney is on vacation, another attorney will cover their cases and the panel attorney will be directed to the covering attorney. There may be times when the assisting attorney may direct the panel attorney to another staff attorney in the office who has particular expertise in an area of law.
Getting-Paid: Compensation Claims, Timekeeping & Billing Records
Getting Entered into the Judicial Council Payment System: In order to be paid, a panel attorney must first be entered into the Judicial Council system for payment. This is done by completing a JCC and Appellate Project Information Sheet and a W-9 form and transmitting them to the JCC Accounting Unit and the appellate project, as directed on the form. An attorney working for a firm who intends that the payment be to the firm, must also submit a certification letter on firm letterhead (sample here [LINK]).
Direct Deposit: Panel attorney may set up direct deposit payments for compensation claims using the Judicial Council Direct Deposit form (MS Word form.) See the Judicial Council direct deposit FAQs (PDF).
Compensation Claims: After filing the opening brief (except where a no-issue brief has been filed), counsel may submit an interim claim through the eclaims system. Final claims should be submitted at the conclusion of the case. Our office will evaluate the claim and forward it to the Judicial Council for payment. Be sure to familiarize yourself with FDAP’s claims information, including the Statewide Claims Manual, and be prepared to offer explanations where necessary for tasks that exceed guideline amounts.
Timekeeping & Billing Records: Actual time must be kept and reported to the nearest one tenth of an hour. Estimating the time or just claiming the guideline amount is unacceptable. Billing in larger increments than tenths of an hour (e.g. whole hours or half hours) is also improper. Expenses likewise should not be rounded off. On occasion, FDAP will request to see billing records and/or receipts when reviewing a compensation claim.
This is only a brief overview; claims-related topics are covered in great detail in the Statewide Claims Manual.
Change of Address Notifications
Whenever a panel attorney has a change of address, they must use the Judicial Council form to notify FDAP and the Judicial Council. Note: using that form does not satisfy the requirement that you also file a Notice of Change of Address with the Court of Appeal in each pending case.
Confidentiality of Address
A panel attorney’s business address and phone number will be given to the client.
In addition, because FDAP uses UPS and UPS will not deliver to P.O. Box addresses, FDAP asks panel attorneys for a separate shipping address if their business address is a P.O. Box.
Sometimes panel attorneys use their home address as the shipping address. The shipping address will be kept confidential by FDAP, and will not be provided to the client or anyone else, with one primary exception. Some superior court clerks’ offices also use UPS, and if a business address is a P.O. Box, they ask FDAP for the shipping address to send the record directly to the panel attorney. In that situation, FDAP will provide the clerk the shipping address. Although we request that this address be kept confidential, we have no control over the county clerks, and on rare occasions they have given out the shipping address.
To avoid even the remote possibility that a shipping address may end up being given out by the county clerks, FDAP recommends against using a P.O. Box as a business address. The best practice is to rent a Private Mail Box (PMB) as a business address. UPS and the other services deliver to PMBs.
Panel attorneys are expressly covered by FDAP’s professional liability policy for any lawsuits by clients arising out of their representation on court appointed appeals. The policy covers actions within the scope of the appointments through FDAP—i.e., appellate appointments by the California Court of Appeal or the California Supreme Court—including any claims regarding habeas representation (or failure to file a habeas petition) during and as part of that appointment. The coverage includes any damages or settlement and costs of defense.