PANEL ATTORNEY QUALIFICATIONS
Rule 76.5 of the California Rules of Court mandates that the appointed counsel administrator evaluate the qualifications of attorneys who request appointment to cases. To this end, SDAP requires that an attorney submit a written application and two sets of appellate briefs, or equivalent trial court pleadings in order to be considered for placement on the panel. SDAP carefully reviews an applicant’s degree of experience and writing proficiency in determining whether the applicant will be admitted to the panel and, if so, at what class.

Uniform statewide panel attorney classification and case classification and definitions have been adopted by the various California appellate projects.

1. Attorney Classifications

Level I. Attorneys who need substantial assistance and are able to handle only the simplest cases receive this classification. These attorneys generally fall into two categories: (1) relatively new attorneys with little or no relevant experience (those with less than two years in the practice of law who have filed fewer than three opening briefs); and (2) the lowest performers on probationary status.

Work Product:

Category (a): Must demonstrate promising writing, research, and analytical skills and make steady progress toward skills required of higher classifications.
Category (b): Must correct deficiencies disqualifying them from higher levels within a reasonable time to remain on panel.

Presumptive eligibility: May be given class A cases (for a description of the case classification system, see below) of no more than five days’ trial on an assisted basis.

Level II. Attorneys who need at least some assistance in all cases and whose work indicates ability to handle cases somewhat more difficult than the simplest are classified at this level. These attorneys fall into two categories: (a) attorneys with a modest amount of experience (those who have one to four years of practice and/or have filed 3 to 10 opening briefs) but who demonstrate promise of attaining skills of higher levels; and (b) attorneys who have substantial general experience (more than four years of practice and/or more than 10 opening briefs) but do not show promise of attaining skills of higher levels.

Work Product: Must produce work of at least standard quality, requiring little assistance to perform basic duties.

Presumptive Eligibility: May be given class A or B cases on an assisted basis.

Level III. Attorneys at this level have a moderate amount of relevant experience (10 or more opening briefs or the equivalent), and produce work indicating ability to handle cases of intermediate complexity on an assisted basis and/or simple cases on an independent basis.

Work Product: Must consistently produce work of at least good to very good quality, requiring assistance only to perform more complex duties.

Presumptive Eligibility: May be given cases through class C on an assisted basis and/or cases through class B on an independent basis.

Level IV. Attorneys of superior qualifications and considerable relevant experience (20 or more opening briefs or the equivalent), whose work indicates ability to handle cases of substantial complexity on an assisted basis and/or cases of intermediate complexity on an independent basis.

Work Product: Must consistently produce work of at least very good quality, requiring assistance only to perform the most difficult and complex duties.

Presumptive Eligibility: May be given cases through class E on an assisted basis and/or cases through Class D on an independent basis.

Level V. Attorneys who may be considered appellate specialists, with the highest qualifications and extensive relevant experience, and whose work indicates ability to handle the most complex cases on an independent basis.

Work Product: Must produce work of consistently very good to excellent quality and use assistance when requested only at sophisticated levels.

Presumptive Eligibility: May be given any case on an independent basis.


2. Criminal and Delinquency Case Classifications
A: Sentence of less than 5 years for trials, less than 10 years for pleas.
B: Sentence of at least 5 but less than 10 years for trials, at least 10 but less than 20 years for pleas.
C: Sentence of at least 10 but less than 20 years for trials, at least 20 but less than 30 years for pleas.
D: Sentence of 20 years or more for trials, 30 years or more for pleas, or any with life maximum.
E: Life without possibility of parole.

(1) Cases with records of 2,500 to 7,500 pages move to the next higher category.

(2) Cases with records of more than 7,500 pages move two categories higher.


3. Distance from court as a factor in panel attorney admission and retention.
Generally, far-distant attorneys, who may incur substantial travel costs, will not be placed on the panel if equally qualified, more local attorneys are available. However, we cannot recruit an adequate number of attorneys qualified to handle more serious cases without using some far-distant attorneys.

Another factor in our policy relating to distance is our continuing goal of creating a substantial panel in the counties of our appellate district. Historically, there have not been many criminal appellate practitioners in our district. We are committed to the professional development of lawyers in our district who wish to handle indigent appeals.

To accommodate these factors, SDAP has formulated the following policies:
(1) For applicants whose offices are within the geographic boundaries of the Sixth Appellate District, a preference will be given. This preference is to support the creation and maintenance of a substantial criminal appellate bar in our district. This preference is accorded with recognition that new or inexperienced attorneys in our district who would like to do appointed counsel work have little or no opportunity to be admitted to the panels of other appellate programs.

(2) For attorneys within an approximate 150 mile radius of San Jose, no preference will be applied. This radius corresponds approximately to the most distant location from San Jose within the Sixth Appellate District. The decision to admit an applicant within such distance will be made solely on the demonstrated skill and experience of the attorney.

(3) For attorneys who are significantly further than 150 miles from San Jose, admission and retention on the panel will depend on the demonstrated ability to handle substantial jury trial appeals on an independent basis.

Once accepted to the panel, an attorney is expected to be reasonably available for appointments. While we recognize that an attorney will not always be able to accept new assignments, repeated refusals to accept cases may lead to removal from the panel.


B. EVALUATION
Under Rule 76.5(c), it is part of each appointed counsel administrator's job to "review and evaluate the performance of appointed counsel to determine whether counsel's name should remain on the same appointment list, be placed on a different list, or be deleted." A similar provision is in the contract we sign each year with the State of California.

Evaluation of panel attorney performance is one of the key functions of appointed counsel administrators. The state has an obligation not just to provide counsel to indigent appellants, but to provide effective representation. The chief evil that led to the creation of the appellate projects was appointment of appointed counsel who were insufficiently skilled or experienced to provide effective appellate representation.

When the opening brief is filed and again when the final compensation claim is reviewed, a qualitative written evaluation of the panel attorney's performance in each case is made. This evaluation is made by the staff attorney who has either actively assisted in the case, or, if the case is assigned independently, monitored the filings, briefs, and opinion. The evaluation rates the attorney in six areas: issue selection and definition, style and form, research, responsibility, argumentation, and relationship with client. A letter grade (with a range of A to F) is awarded and a recommendation is made as to whether the attorney should be changed in rank.

After review by the executive director, these evaluations are routed to a file maintained for each panel attorney. This file also contains oral argument evaluations. An egregious case of poor performance may be the subject of swift review and action by the executive director.

The main work of evaluation is done during the annual panel review, conducted by the entire attorney staff. A panel review sheet summarizes work since the last review. There is a place to list each case handled since the last evaluation, as well as the overall rating received on that case. There is a space to evaluate the attorney's writing, and to list any specialties the attorney has developed (e.g., search and seizure, sex sentencing, juvenile, child dependency). A space for general comments by the attorney is provided. Prior yearly review sheets are in the attorney file, and information from them is often included in the general comment section. There is a space for evaluation of the attorney's performance in the last year, and for a recommendation for keeping the attorney at the same level, advancing the attorney to a higher level, demoting to a lower level, or removing the attorney.

At the panel review sessions, attended by all staff attorneys, each panel attorney is discussed. There is a space in the yearly review sheet for additional staff comments. These comments include oral evaluations of very recent work for which no interim claim has been filed and hence no written evaluation made. These comments also include amplification of comments in written evaluations. This process also serves to inform staff attorneys about the progress of panel attorneys with whom they have not recently worked. After such discussion, the executive director makes the final determination of the action to be taken.


C. PROBATION AND REMOVAL
Under rule 76.5(c), a panel attorney may be removed. Generally speaking, SDAP removes attorneys for one of three reasons: (1) a pattern of poor performance; (2) inadequate progress toward the ability to handle cases independently; and (3) failure to handle a significant number of cases.

SDAP endeavors to assist attorneys in improving their skills. Thus, attorneys will often be given written notice when their performance has been poor.

Probation letters are sent to attorneys whose work, while minimally acceptable, needs improvement. The letter specifically states the areas of performance which need improvement. We try to be as tactful as possible, while being clear on the need for improvement. Many attorneys who are ultimately removed from the panel have received probation letters, but failed to improve. However, some attorneys have been removed without a prior probation letter, in cases of client abandonment or other professional conduct which clearly indicates unfitness for future appointments. We also sometimes send an "encouragement" letter, letting the attorney know that he or she will be promoted if a certain problem is resolved.

If you wish to discuss SDAP’s evaluations of your work, you should contact the executive director. In order to foster absolute candor by its staff attorneys, SDAP does not release a panel attorney’s written evaluations. However, the executive director will provide oral summaries of recent evaluations upon request.


D. USE OF ASSOCIATE COUNSEL
As a matter of statewide policy, associate counsel may not be used in an assisted case except under extraordinary circumstances with the prior approval of the project director. Associate counsel may be used in independent cases. The name and California State Bar number of the associate counsel must be provided to SDAP. In addition, the use of associate counsel is governed by certain guidelines.

The first such guideline was stated in a 1984 memorandum from the Administrative Office of the Courts: “Appointed counsel shall not delegate to others those functions that require the ability and experience for which counsel was appointed. Appointed counsel shall supervise and have full responsibility for the services provided by others.” This guideline is consistent with an attorney’s professional duty to perform competently. (Rules of Professional Conduct of the State Bar of California, Discussion to rule 3-110; attorney has the duty to ensure the competent performance of the work of a subordinate attorney.)

In making case assignments, SDAP relies on our evaluation of the panel member's abilities. Our screening, evaluation and case assignment processes are undercut if a panel attorney allows others to assume control over the case.

Any substandard work produced by associates will damage the standing of the panel attorney. Indications we have of over-delegation also reflect negatively on our evaluation of panel attorneys. These indications include situations in which our communication about a case is conducted predominantly with an associate, and in which our communication with the panel attorney reveals a lack of personal knowledge about the case.

Maintaining personal control over a case requires the following: (a) adequate personal knowledge of the record on appeal; (b) adequate personal communication with the client; (c) adequate personal communication with the monitoring staff attorney; (d) personal knowledge of the applicable law sufficient to maintain full tactical control over issue selection and written argumentation; and (e) personal appearance at oral argument if argument is requested.

It is acceptable for the panel attorney to employ others to assist in record review, legal research, and the drafting of pleadings. Adequate supervision must be maintained over those who are assisting, and personal responsibility for the accuracy and quality of all work remains with the panel attorney. The requirement of personal appearance at oral argument is due to the impossibility of effectively supervising another's work in the courtroom.

These guidelines are intended to clarify the requirement by the Administrative Office of the Courts that appointed counsel supervise and have full responsibility for the service performed by others, and not delegate functions that require the ability and experience for which counsel was appointed.

The time spent by associate counsel is billed in the identical manner as time spent by appointed counsel. For example, if associate counsel read the record, the attorney’s time should be billed as record review time. The time claimed for any billing category should be the sum of appointed counsel and associate counsel’s time. Additionally, there needs to be a breakdown of how much associate time has been billed in each category. It is essential to note that the use of associate counsel does not alter the application of the fee guidelines. A fee claim will be analyzed as if an associate attorney was not used (i.e. compensation will be paid for the amount of time which a reasonably experienced appellate attorney would have taken to handle the case).


E. USE OF LAW CLERKS AND PARALEGALS
Law clerks and paralegals may be used on both assisted and independent cases. Appointed counsel must, of course, closely supervise these assistants.

The time spent by law clerks and paralegals is reimbursable at your actual cost with a cap of $25 per hour. Such time must be claimed on the expense portion of a fee claim. The services performed must be itemized.


F. PROFESSIONAL LIABILITY COVERAGE
Since the formation of the Sixth District Appellate Program, the organization has maintained professional liability coverage. Our policy covers panel attorneys for their SDAP cases. If a lawsuit is filed against a panel attorney, it is the attorney’s obligation to promptly report this fact to the executive director of SDAP. The matter will then be referred to our malpractice carrier.

CASE APPOINTMENT AND CLASSIFICATION
SDAP serves as counsel of record in all cases unless a conflict of interest is declared. A panel attorney is deemed to be associate counsel with SDAP. SDAP endeavors to handle the association of counsel in the most expeditious manner possible. To this end, the collection of information starts even before SDAP is appointed by the Court of Appeal. SDAP is responsible for communicating directly with the client and providing any necessary services in that interstitial period between representation by the trial attorney and the association of a panel member.


A. REVIEW FOR CLASSIFICATION
The superior court clerks in the district send SDAP copies of notices of appeal filed in criminal, dependency, and conservatorship proceedings on the assumption that SDAP will be appointed. This facilitates our review of the cases and frequently means the case is worked up for appointment before or shortly after our notice of appointment arrives from the Court of Appeal.

SDAP paralegals include the Santa Clara County Superior Court in their daily rounds and they travel to Santa Cruz, Monterey and San Benito Counties on a regular basis. The paralegals review the court files of cases in which notices of appeal have been recently filed. They screen to determine if counsel has been privately retained for appeal. They copy documents from the file and prepare a summary of information which will help in the classification process. The paralegals also attempt to get a current address or state prison location for the client.

Once a paralegal has worked up a case, the executive director will review the file and assign it to a SDAP staff attorney. Upon receiving the file, the staff attorney will review it to determine if the notice of appeal is sufficient and preserves all possible issues. The staff attorney may make further inquiries.

In the meantime, SDAP sends an introduction letter to the client. It contains some basic information regarding the appellate process and it provides the name of the staff attorney who is assigned to the case.

The staff attorney prepares the case for a meeting which is held approximately every two weeks. The meeting is attended by the executive director and all staff attorneys. The staff attorney briefly describes the case, possible issues and impressions. The executive director or staff members may suggest a panel attorney who has recently handled a similar issue or who has some relevant expertise with respect to the potential issues in the case. Once an attorney has been selected, there is consideration of whether the case should be assigned on an assisted or independent basis and whether there is a conflict which would preclude SDAP from doing more than making the recommendation of counsel to the court.

After the meeting, the responsible staff attorney contacts the panel attorney to seek confirmation that the attorney is available and will accept the case. Information about the nature of the case, whether the record is ready and other matters are communicated to assist the panel attorney in deciding whether to take the case.

If the case is accepted, a notice of recommendation of counsel is prepared and filed with the Court of Appeal. Copies of the notice of recommendation of counsel are mailed to all parties and the client. Appointed counsel should be aware that the Court of Appeal does not send counsel a conformed copy of the appointment order. Upon orally accepting a case, counsel should presume that an attorney-client relationship has commenced.

When SDAP files its notice of recommendation of counsel, appointed counsel is sent a copy of pertinent documents in SDAP’s file. These documents will inform the panel attorney about the case and will include the client’s address.

If a panel attorney does not accept an offered case, the staff attorney will inquire as to when counsel will be available for a new case. SDAP maintains a record that the case has been refused and that counsel will be available on a certain date.


B. ASSISTED, INDEPENDENT AND CONFLICT CASES
At the time counsel is selected, a determination is made as to whether the case will be assigned on an assisted, independent or conflict basis. Counsel should be familiar with SDAP’s procedures for each form of assignment. Regardless of the nature of your appointment, you must serve SDAP with all of your pleadings in a case.

An assisted case is one in which the panel attorney will consult and work closely with the staff attorney. Absent unusual circumstances, a single staff attorney will work on the case from beginning to end. The record on appeal will be routed to the staff attorney who will review the record and prepare an assistance letter which will provide the panel attorney with issue spotting and research leads. The letter is by no means the outline of the opening brief. Counsel has an obligation to thoroughly review the record and come to an independent conclusion on arguable issues. It will be helpful to consult with the staff attorney prior to drafting the brief if there is a difference between the panel attorney's decision on an issue and the views expressed in the assistance letter.

Once an opening brief is drafted, a final draft should be transmitted to the staff attorney for review, discussion and approval. SDAP’s policy is to require that a draft be submitted at least five days prior to the filing deadline. If that is not possible, you should contact the staff attorney and be prepared to file a request for extension of time.

Most of the assistance time is spent on record review, legal research of potential issues, and drafting of the assistance letter. However, the staff attorney will be available to consult during the course of the appeal. You may periodically receive notes regarding unpublished opinions on similar issues, citations to recent decisions which may be relevant to your issues, or letters suggesting points to be made in the reply brief.

An independent case is assigned based on the assumption that the attorney is skilled in handling cases without the need for guidance in the areas of issue spotting and brief writing. The SDAP staff attorney assigned to monitor the case will review copies of all correspondence, briefs, notices and orders in the case. The staff attorney is available to consult at any time. Some of our most experienced attorneys call to discuss issues and solicit ideas in independent cases.

The compensation claims are reviewed by the attorney who is either assisting or monitoring the case. It is up to that attorney to complete the evaluation of work performed and prepare a detailed recommendation before the claim is forwarded to the executive director for approval.

When there is a conflict with the representation of a particular client (usually when there are multiple appellants), SDAP will recommend appointment of counsel, but will declare a conflict and be relieved as counsel. In those cases where a conflict has been declared, SDAP is still available to answer procedural questions, or to consult on substantive matters consistent with the applicable rules of ethics. Compensation claims in conflict cases are still sent to SDAP.


C. GETTING MORE CASES
The process by which SDAP decides which panel attorney to select for a particular case takes into consideration a number of factors. We consider factors about the case such as sentence length, record length, and the nature and complexity of issues. We consider factors about panel attorneys, such as relative experience level, quality of past work, and demonstrated expertise in handling particular issues or types of cases, and number of appointments the attorney has received in the preceding year.

There is another consideration on which we place significant weight: whether the panel attorney has filed the opening brief in all cases previously assigned by SDAP.

At each appointment meeting, we have two lists of panel attorneys. One is a list of attorneys who have filed opening briefs in all their assigned cases, the "available" list. The other list includes those who have not filed opening briefs in all their assigned cases, the "unavailable" list. In assigning cases, we work mainly off the “available” list.

However, increasingly we are assigning cases to attorneys who have a case in which the AOB has not been filed. We recognize that panel members need to have an inventory of cases to have sufficient work, given delays in the progress of cases due to record preparation or augmentation and delays by opposing counsel. Also, if you are available for a new appointment, you may call and let us know that.