Guidelines and Policies
- Binding: Limits on use of professional binding on all the service copies of the briefs and petitions.
- Claims Manual: Comprehensive information about policies, classification of time and expenses, completion of the compensation claim form, and other claims-related matters.
- Communication Time: Overview of where to claim various kinds of communication time spent on the case.
- Compensation Rate: Rates for work on court-appointed cases in the California Courts of Appeal.
- Guidelines: Official statewide standard compensation guidelines for work on court-appointed cases.
- Habeas corpus: How to bill time and expenses for investigating or filing a habeas corpus petition
- Recycled material: How to claim use of recycled materials to prepare documents.
- Review of processed claim: Review the claim recommendations and comments made by the project.
- Travel: AOC travel policies.
Professional binding (e.g., velo or spiral binding) of service copies sent only to the courts is compensated. Service copies of documents to the remaining participants should be bound by the least expensive means available. Often, this involves stapling.
The ADI Compensation Claims Manual (PDF) describes compensation procedures and rules for claims filed in the Fourth Appellate District. The rules and procedures listed in ADI's manual are generally, but not necessarily, reflective of the rules and procedures of the other appellate projects.
The manual states what services are compensable and what the guideline is for each service. If the time spent for a service exceeds the guidelines, a brief explanation submitted with the claim helps ADI assess whether to recommend payment over guideline.
The manual is in PDF format. It is arranged alphabetically by topic and is searchable. Also, the manual is indexed by subject matter; any topic may be accessed by clicking on the topic you wish in the index.
The AOC requires that communication time be claimed as follows:
Line 1 ("Communications") is to be used solely for communications with the client and the trial attorney.
- Important clarification: Communications with the client or trial counsel that are part of a habeas corpus investigation should be placed on Item 11.
Item 23 (labeled "Other Services," but to be renamed "Other Communications") is to be used ONLY for communications other than those with the client or trial counsel. If the communication with others relates to habeas corpus, it must be reported on line 11. It may include communication with the court, co-counsel, opposing counsel, family when necessary, etc. Only communication with others that is explained and deemed reasonable can be compensated.
- Important clarification: When communication with the CLIENT uses a family member or other person as a translator or conduit for that communication, the time should be claimed on line 1. Exception: If such time is related to a habeas corpus investigation, it should be claimed on line 11.
If a claim was already filed in the case when the above policies were adopted, any later claim should use the same lines as the earlier claim.
|Type of Case||
Appt. Prior to 10/1/05
Appt. after 10/1/05
Appt. after 7/1/06
Appt. after 7/1/07
|Upper Tier Case *||$85||$90||$100||$105|
* A case is upper tier if it is:
(a) independent, and
(b) in one of these classes:
(1) murder conviction after jury trial, with appointment on or after 7/1/95, or
(2) LWOP sentence after jury trial, with appointment on or after 10/1/95, or
(3) a specified sex crime (Pen. Code, §§ 209(b), 220, 261-269, 281-294), conviction after jury trial or
(4) record of 3000 pages or more (including augmentations) or
(c) a People's appeal of a motion for new trial, where criterion (a) and one or more of the criteria (b)(1) through (b)(4) are met.
In 1991, standard compensation guidelines for the court-appointed counsel program were developed. Since that time, there have been slight modifications and clarifications. The guidelines serve as benchmarks, not absolutes. They do not guarantee a minimum payment nor set an upper limit; payment can be below or above guidelines. The ultimate test is "reasonableness" – what an experienced appellate attorney would find reasonably necessary for handling the case appropriately. This is an individualized judgment for each case.
Attorneys should, as a normal rule, claim the time actually spent, even it if is over guidelines and is likely to be cut. The judiciary needs to have a realistic understanding of the time required to perform services. If the attorney is concerned about appearing wholly unreasonable or being perceived as inflating claims, he or she may self-cut, but should point out it was done, in a cover letter or in the explanations section of the claim form.
Line 11 of the claim should show all habeas-related matters:
- Time: The attorney hours spent on habeas – communication, investigation, research and writing, travel, oral argument, etc. – go in the space for hours on line 11.
- Expenses: Habeas-related expenses go on the applicable line in section H of the claim form for each expense; there are no dedicated fields for habeas expense. But the expenses devoted to habeas should be set forth in the comments to line 11, so that the AOC can isolate the cost of the habeas.
“Habeas-related” work and expenses are those spent once counsel is looking fairly seriously at filing a petition. Preliminary inquiry designed primarily to decide whether to investigate and probably to rule it out, or explaining to the client what a habeas is or why a decision not to file it was made, should just go on the usual lines, not 11.
More detail is in this Habeas Time and Expenses memo .
To promote efficiency in the preparation of filings, the courts and projects encourage use of briefbank and other previously prepared materials ("recycling"). Because recycling by its very purpose affects the amount of time an attorney spends, the courts have long required the projects to consider it in recommending compensation. In order to determine reasonableness and/or guidelines for work, the projects must know what was recycled and what was new. Usually the panel attorney is the best (or only) source of that information. Disclosure of certain kinds of recycling is therefore required.
The Appellate Indigent Defense Oversight Advisory Committee (AIDOAC) and the projects require that a standardized "recycling" PDF form be attached to all claims, interim and final, whether or not the attorney has actually recycled previously brief materials in the case. It is intended to provide the needed information up front, so as to avoid delays, and also to be as easy to use as possible.
Substantial copying of previously prepared materials – and only that – must be disclosed. The projects and guidelines assume many kinds of commonplace materials have been recycled, and disclosure is not required for those. It is required, however, when significant copying is involved or the recycling may not be obvious. The underlying test is whether disclosure would affect the project's judgment of how long it would take a reasonably experienced attorney to produce the document.
Must be disclosed: Examples of recycling that would affect the project's judgment about complexity would be copying a substantial part of an argument or pasting AOB facts and/or arguments into a petition for review or habeas corpus. Such recycling must be disclosed to ensure accurate assessment of how much time the argument would reasonably have taken. (The requirement of disclosure does not in any way suggest doubt about the panel attorney's veracity in claiming time. It is used to apply the "reasonableness" test – what time an experienced attorney with access to the previously developed materials would reasonably need.)
Need not be declared: Examples of reuse that does not have to be disclosed would be relatively short passages on generalized, recurrent matters. This might include statements of appealability, standards of review and prejudice, the elements of common offenses, the Strickland test for ineffective assistance of counsel, the meaning of probable cause, etc.
In assessing compensation, the project considers what was copied and how much new work the attorney did. For example, added cases and analysis, as well as checking, updating, editing, and adapting recycled passages may increase the required time. Again, the first time an attorney uses materials produced by another attorney reasonably takes more time for these functions than subsequent uses. But the panel attorney must briefly point out such factors. In the absence of explanation, the project must presume the lesser time was required.
Reviewing and maintaining a copy of ADI's recommendations and comments is valuable for a variety of reasons:
Accuracy: Checking the copy helps ensure that the information transmitted to the AOC is accurate. ADI reviews each claim multiple times before sending it to the AOC, but another set of eyes can only help.
Opportunity for additional compensation: Especially in areas where ADI recommended a reduction in payment, panel attorneys may be able to supply additional information justifying the claim. Services may be more complex than they outwardly appear. Submitting additional justification or explanation of the services rendered at the time of the final claim may enable ADI to increase the recommendation for that service. Do this as soon as practical, when the issues and justification will still be fresh in the minds of counsel and the ADI reviewer.
Taxes: Record keeping for a small office is an onerous task. As much as ADI would like to offer assistance to our panel members, because of limited staff and resources, we are unable to conduct searches for panel attorneys to determine which cases may still require claims or to track the amounts paid at the interim stage. Keeping a copy of recommendation will assist.