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Rule 12. Procedure for Counsel and Guardian Ad Litem Appointments at Public Expense.
(a) Intent. The court shall appoint counsel or a guardian ad litem only when the court specifically determines that the appointment is clearly authorized by law or rule, and that the person for whom the appointment is made is financially eligible for an appointment at public expense.
(b) Appointments under AS 18.85.100(a) (Public Defender Agency).
(1) Appointment Procedure.
(A) When a person is entitled to counsel under AS 18.85.100(a), appointments shall be made first to the public defender agency. If the agency files a motion to withdraw on the grounds that it cannot represent the person because of a conflict of interest, if the parties stipulate on the record that the agency has a conflict of interest, or if the court on its own motion finds an obvious conflict of interest, the court accepting such motion or stipulation or making such finding shall appoint the office of public advocacy to provide counsel.
(B) The court may appoint an attorney in a case in which the office of public advocacy has been appointed only if:
(i) The office of public advocacy has shown that it is unable to provide counsel either by staff or by contract; and
(ii) The office of public advocacy has provided the court with the name or names of the attorneys who shall be appointed in that particular case.
The office of public advocacy shall be responsible for compensating any attorney appointed under this subparagraph.
(C) All claims for payment for services performed after July 1, 1984, by attorneys appointed by the court shall be submitted to the director of the office of public advocacy, under such procedures as the director may prescribe. The director shall approve, modify or disapprove the claim.
(2) Determination of Indigency. Determination of indigency or financial inability for appointments under paragraph (b) of this rule must be made in accordance with the provisions of Criminal Rule 39.
(3) Assessment of Costs. When counsel is appointed for a child when the child's parents or custodian are financially able but refuse to employ counsel to assist the child, the court may, when appropriate, assess as costs against the parents, guardian or custodian the cost to the state of providing counsel.
(c) Appointments under AS 44.21.410 (Office of Public Advocacy).
(1) Appointment Procedure. When a person qualifies for counsel or guardian ad litem services under AS 44.21.410, the court shall appoint the office of public advocacy. The court in its order appointing the office of public advocacy must state the authority for the appointment. In the case of a discretionary appointment, the court must give specific reasons for the appointment. In the case of a guardian ad litem appointment, the court shall limit the appointment to the pendency of the proceedings affecting the child's welfare, shall outline the guardian ad litem's responsibilities, and shall limit the guardian's authority to those matters related to the guardian's effective representation of the minor's best interests.
(2) Indigency Determination. For appointments of the office of public advocacy under this rule, other than an appointment required because of a conflict of interest with the public defender agency, a person is indigent if the person's income does not exceed the maximum annual income level established to determine eligibility for representation by the Alaska Legal Services Corporation. A person whose income exceeds the maximum amount for legal services representation may be determined indigent only if a judge makes a specific finding of indigency on the record, taking into account the funds necessary for the person to maintain employment, to provide shelter, and to clothe, feed and care for the person and the person's immediate family, the person's outstanding contractual indebtedness, the person's ability to afford representation based on the particular matter and the complexity of the case, the costs of living and attorneys fees in different regions of the state, and any liquid assets which could be counted as income.
(3) Assessment of Costs. In an appointment under AS 25.24.310 for representation of a minor, the court shall enter an order for costs, fees and disbursements in favor of the state. If the appointment is made in a proceeding in which custody, support or visitation is an issue, the court shall, if possible, avoid assigning costs to only one party by ordering that costs of the minor's legal representative or guardian services be paid from property belonging to both parents before a division of property is made.
(d) Withdrawal from Unauthorized Appoint-ment. The public defender agency and the office of public advocacy shall accept appointments only in those cases for which the basis for the appointment is clearly authorized. If the agency or office determines that the basis for an appointment is not clearly authorized, the agency or office shall file with the court a motion to withdraw from the appointment.
(e) Other Appointments at Public Expense.
(1) Constitutionally Required Appointments.
If the court determines that counsel, or a guardian ad litem, or other representative should be appointed for an indigent person, and further determines that the appointment is not authorized by AS 18.85.100(a) or AS 44.21.410, but in the opinion of the court is required by law or rule, the court shall appoint an attorney who is a member of the Alaska Bar Association to provide the required services. Other persons may be appointed to provide required services to the extent permissible by law.
(A) Appointments may be made in the following types of cases without prior approval of the administrative director, but only in cases in which the required services would not otherwise be provided by a public agency:
(i) Attorneys for biological parents in adoption cases to the extent required by the Indian Child Welfare Act (25 USC 1901 et seq.),
(ii) Attorneys for minor children and indigent parents or custodians of minor children in minor guardianship cases brought pursuant to AS 13.26.060(d),
(iii) Attorneys for respondents in protective proceedings brought pursuant to AS 13.26 in which appointment of the office of public advocacy is not mandated by statute,
(iv) Attorneys for minor children or incompetents who are heirs or devisees of estates in cases in which the attorneys' fees cannot be paid as a cost of administration from the proceeds of the estate,
(v) Attorneys for indigent putative fathers in actions to establish paternity in which the state of Alaska provides representation for mothers,
(vi) Attorneys to represent indigent respondents in involuntary alcohol commitments brought pursuant to AS 47.37,
(vii) Attorneys for indigent parents who are defending against a claim that their consent to adoption is not required under AS 25.23.050(a).
(B) In all other cases, the court shall inform the administrative director of the specific reasons why an appointment is required prior to making the appointment.
(2) Soldiers & Sailors Civil Relief Act. When the opposing party is financially unable to pay for such representation, the court shall appoint a member of the Alaska Bar Association to represent an absent service person pursuant to the Soldiers and Sailors Civil Relief Act (50 USC 520). Prior approval of the administrative director is not required.
(3) List of Private Attorneys. (A) The presiding judge shall designate the area court administrator and a clerk of court for each court location in the district to keep and make available to the court in each location lists of attorneys or other persons eligible to receive court appointments under paragraph (e) of this rule.
(B) The attorney lists will first be compiled from names of persons who have volunteered to accept these appointments. If there are insufficient volunteers, the court will make appointments on a rotation basis from lists of eligible attorneys obtained from the Alaska Bar Association. The court may, in departing from a strict rotation basis, take into account the complexity of the case and the level of experience required by counsel.
(C) Lists of other persons available to provide required services will be compiled from names of qualified persons who have indicated their willingness to provide the required services.
(4) Appointment Orders. When the court appoints an attorney or other person under paragraph (e) of this rule, the clerk of the court from which the appointment was made shall immediately send a copy of the appointment order to the administrative director.
(5) Compensation. (A) All claims for compensation must be submitted on forms provided by the court within 30 days following the disposition of a case. Claims will be submitted to the assigned trial judge or master, who shall make a recommendation regarding approval and forward the recommendation to the administrative director. The administrative director shall approve or disapprove the claim.
(B) Attorneys will be compensated at the rate of $40.00 per hour; provided, that total compensation for any case will not exceed $500.00 without prior approval of the administrative director.
(C) A person other than an attorney appointed to provide services will receive compensation if the court deems it appropriate not to exceed $25.00 per hour; provided, that total compensation for any case will not exceed $300.00 without prior approval of the administrative director.
(D) Extraordinary expenses will be reimbursed only if prior authority has been obtained from the administrative director, upon recommendation by the assigned trial judge or the presiding judge. The assigned trial judge may recommend extraordinary expenses up to a total amount not to exceed $1,000.00, and the presiding judge may recommend an amount not to exceed an additional $1,500.00. Extraordinary expenses exceeding $2,500.00 may be authorized only in extremely complex cases by the administrative director upon the recommendation of the presiding judge. In this paragraph, "extraordinary expenses" are limited to expenses for:
(i) Investigation;
(ii) Expert witnesses; and
(iii) Necessary travel and per diem expenses. Travel and per diem may not exceed the rate authorized for state employees.
(E) If necessary to prevent manifest injustice, the administrative director may authorize payment of compensation or expenses in excess of the amounts allowed under this rule.
(6) Recovery of Costs. When counsel is appointed for a person in a case described in subparagraph 12(e)(1), the court shall order the person, or if the person is a child, the person's parents, guardian or custodian, to pay the costs incurred by the court in providing representation. Before appointing counsel, the court shall advise the person that the person will be ordered to repay the state for the cost of appointed counsel and shall advise the person of the maximum amount that the person will be required to repay. The court shall order the person to apply for permanent fund dividends every year in which the person qualifies for a dividend until the cost is paid in full. The clerk shall determine the cost of representation, and shall mail to the person's address of record a notice informing the person that judgment will be entered against the person for the actual cost of representation or for $500, whichever is less. The person may oppose entry of the judgment by filing a written opposition within 10 days after the date shown in the clerk's certificate of distribution on the notice. The opposition shall specifically set out the grounds for opposing entry of judgment. The clerk shall enter judgment against the person for the amount shown in the notice if the person does not oppose entry of the judgment within the 10 days. If the person files a timely opposition, the court may set the matter for a hearing and shall have authority to enter the judgment. Criminal Rule 39(c)(1)(D) and (c)(2) shall apply to judgments entered under this section.
(f) Responsibilities of Appointed Counsel.
(1) An attorney appointed to represent an indigent person must advise the court if the attorney learns of a change in the person's financial status that would make the person financially ineligible for appointed counsel.
(2) An attorney appointed to represent an indigent person must move to withdraw if the attorney reasonably believes that the person has made a material misrepresentation of the person's financial status to the court. A material misrepresentation is a misrepresentation of facts that would make the person financially ineligible for appointed counsel. The attorney is not required to disclose to the court the existence or nature of the misrepresentation unless disclosure is necessary to prevent the person from fraudulently securing the services of appointed counsel.
(Adopted by SCO 412 effective July 1, 1980; amended by SCO 443 effective November 13, 1980; by SCO 528 effective September 1, 1982; by SCO 529 effective September 1, 1982; by SCO 626 effective April 19, 1985; by SCO 652 effective July 1, 1985; by SCO 676 effective April 25, 1986; by SCO 680 effective April 25, 1986; by SCO 689 effective April 24, 1986; by SCO 703 effective May 12, 1986; by SCO 889 effective July 15, 1988; by SCO 909 effective January 15, 1989; by SCO 1053 effective July 15, 1991; by SCO 1088 effective July 1, 1992; by SCO 1092 effective July 15, 1992; by SCO 1103 effective July 9, 1992; by SCO 1145 effective October 1, 1993; by SCO 1179 effective July 15, 1995)
Dissent to SCO 1088:
RABINOWITZ, Chief Justice, with whom COMPTON, Justice, joins, dissenting:
I am not persuaded that either existing Criminal Rule 39, or Appellate Rule 209, requires amendment. I think it can be safely predicted that these amendments will have a chilling effect on an indigent defendant's obtaining the services of appointed counsel as well as on an indigent defendant's decision whether or not to seek review or to appeal.
NOTE: AS 18.85.170(4) defines "indigent person" for purposes of public defender appointments as "a person who, at the time need is determined, does not have sufficient assets, credit, or other means to provide for payment of an attorney and all other necessary expenses of representation without depriving the party or the party's dependents of food, clothing, or shelter and who has not disposed of any assets since the commission of the offense with the intent or for the purpose of establishing eligibility for assistance under this chapter."
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Last Modified 7/14/1999
