COURT APPOINTED COUNSEL

CHAPTER 977

COURT APPOINTED COUNSEL

SUBCHAPTER I

CERTIFICATION

977.101 Right to Counsel

977.102 Appointment Procedure

977.103 Compensation of Court Appointed Counsel

977.1035 Requirements for certification.

977.1037 Provisional certification.

977.104 Certification lists.

977.105 Appeal of certification decisions.

977.107 Voluntary removal.

977.1075 Inactive status.

977.108 Access to files.

977.101 Right to Appointed Counsel. A defendant who faces incarceration has the right to

counsel at all critical stages of the criminal process. A defendant may make a knowing, voluntary

and intelligent waiver of the right to counsel. Unless waived, a defendant who faces incarceration

and who has insufficient means to hire counsel is entitled to have counsel appointed by the Court

for all critical stages of the criminal process.

977.102 Appointment Procedure. When the criteria is met, the Court will utilized the primary

attorney through Wisconsin Judicare, who is contracted to accept appointments in the majority of

the criminal cases before the Court. For purposes of 977, the primary attorney is not considered a

private attorney for public defender services. Additionally, the Court will maintain a list of

members of the Ho-Chunk Bar who are certified and agree to accept appointments in the event of

a conflict or other event that makes representation by the primary attorney difficult or impossible.

After being advised by the Judge of his or her rights regarding appointed counsel, a defendant who

wishes appointment of counsel may fill out an affidavit of indigency. A Ho-Chunk Nation Judge

will determine whether the defendant qualifies for appointment, and, if so, will appoint an attorney.

The Clerk will notify the various persons involved of the appointment.

977.103 Compensation of Court Appointed Counsel. A Court appointed lawyer does not

necessarily mean a free lawyer. Any defendant who is convicted, either by verdict or upon a plea

is subject to having the cost of his or her Court appointed attorney assessed as a part of the costs

of Court. The Chief Justice shall determine a uniform rate of compensation for Court appointed

attorneys and initiate any necessary contracts or make any directives necessary to effectuate the

appointment process.

977.1035 Requirements for certification. In order to obtain and retain certification for court

appointments under this chapter, an attorney shall satisfy all of the following requirements:

(1) APPLICATION. The attomey shall submit an application as required by the supreme court.

(2) LICENSE TO PRACTICE. The attorney shall be licensed to practice jaw in a state and shall

be a member in good standing of a state bar and the Ho-Chunk Nation.

(5) COOPERATION WITH INQUIRIES. (a) An attorney shall cooperate with inquiries from the

supreme court or the court’s designee regarding the status of appointed cases, and regarding

performance or billing in appointed cases.

(b) An attorney who receives a written request to provide a response shall respond in

writing and within the deadlines presented with the request. An attorney who fails to do so may be

suspended from further appointments until an adequate response is provided.

977.1037 Provisional certification. (1) APPLICABILITY. The court may provisionally certify

an attorney. All attorneys who have not been previously certified and all attorneys whose

certification status is reinstated shall be provisionally certified under this section.

(2) REVIEW. (a) After one year of provisional certification, the court shall review the attorney’s

performance and determine the attorney’s future certification status. The court may continue

provisional certification, grant non-provisional certification, or discontinue provisional

certification and exclude the attorney from any or all certification lists,

(b) The court may require a provisionally certified attorney to provide a letter from at least

one judge supporting non-provisional certification.

(c) The court’s determination may be based upon, but is not limited to: a review of briefs

and client files; billing records; client communications; court records; telephone or personal

conferences; and recommendations of judges and attorneys.

(d) The court’s determination shall consider the extent to which the provisionally certified

attorney has satisfied the supreme court rules of professional conduct for attorneys and the

minimum attorney performance standards adopted.

(3) CONTINUATION. If provisional certification is continued, the attorney’s performance shall

be reviewed again under sub. (2) after a period of time set by the court, not to exceed one year.

(4) APPEAL. An attorney may appeal the court’s decision to discontinue provisional certification

and to exclude the attorney from any or all certification lists as provided

ins. 977.105.

(5) PROVISIONAL CERTIFICATION IN LIEU OF DECERTIFICATION. The court may

change an attorney’s certification status to provisional certification in lieu of pursuing

decertification.

977.104 Certification lists. An attorney may be placed on the list to accept an appointment to

represent clients in the following case types if the attorney requests appointments in the case type,

satisfies the requirements of s. 977.1035, and satisfies the following additional criteria:

(1) MISDEMEANORS. For misdemeanor cases, no additional criteria.

(3) FELONIES. For a felony case, the attorney has satisfied both of the following criteria within

the five years immediately preceding the application for certification:

(a) Been trial counsel, alone or with other trial counsel.

(b) _—_ Has litigated a significant portion of one completed jury trial, two trials to a court

of record, or four testimonial hearings before a court of record, but not including a proceeding to

revoke probation, parole or extended supervision.

(4) UNCLASSIFIED CRIMES. For a case alleging an unclassified crime, the attorney satisfies the

certification criteria for the case type with a corresponding maximum penalty.

(3) WRITS AND EXTRADITIONS. For a writ or extradition case, the attorney satisfies the

certification criteria for the case type alleged in the extradition request or that is the subject of the

writ.

(7) CHILDREN’S AND JUVENILE COURT CASES ALLEGING BEHAVIOR THAT COULD

BE PROSECUTED AS A MISDEMEANOR. For a case filed under 4 HCC § 3 or similar statute,

alleging behavior that could be prosecuted as a misdemeanor in criminal court, the attorney has

satisfied either of the following criteria:

(a) Completed four credits of approved legal education in child and/or juvenile protection.

(b) Agreed in writing to complete four credits of legal education in child and/or juvenile

protection cases during the first year of his or her provisional certification under s. 977.1037.

(8) JUVENILE COURT OR JUVENILE WAIVER CASES ALLEGING BEHAVIOR THAT

COULD BE PROSECUTED AS A CLASS E TOI FELONY. For a case filed under any juvenile

delinquency code, in which the most serious allegation could be a felony if prosecuted in criminal

court, or a case seeking to waive a juvenile into criminal court for behavior that could be a felony

in criminal court, the attorney has satisfied the criteria in sub. (3) (a) and is certified for cases under

sub. (7).

(12) REVOCATION OF PROBATION, PAROLE OR EXTENDED SUPERVISION STATUS.

(a) For a proceeding to revoke probation, parole or extended supervision in which the

offense of conviction was a misdemeanor, the attorney has satisfied either of the following criteria:

1. Completed two credits of approved legal education pertaining to revocation

cases.

2. Agreed in writing to complete two credits of approved legal education pertaining

to revocation cases during the first year of his or her provisional certification under s

977.1037.

(b) For a proceeding to revoke probation, parole or extended supervision in which the

offense of conviction was a felony, the attorney has satisfied both of the following criteria:

1. Satisfied the criteria of sub. (3) (a).

2. Completed two credits of approved legal education pertaining to revocation

cases.

(13) APPELLATE DIVISION CASES. (a) Level one appellate certification. Level one appellate

case certification includes appellate appointments in misdemeanor cases, unclassified crimes,

sentencing after revocation cases and paternity cases. For an appeal of a level one appellate case,

the attorney has satisfied either of the following criteria:

1. Submitted a brief-in-chief that was filed in any appellate court in the United

States within the five years immediately preceding the application for certification and that

was reviewed and approved by the court.

2. Completed three credits of approved legal education pertaining to appellate

procedure, or its equivalent, including a law school course, clinical program or judicial

clerkship, within one year immediately preceding the application for certification.

(b) Level two appellate certification. Level two appellate case certification includes

appellate appointments in level one cases and in felony cases. For an appeal of a level two

appellate case, the attorney has satisfied all of the following criteria:

1. Filed two briefs—in—chief in appellate courts that complied with the local rules

of civil procedure, within the five years immediately preceding the application for

certification.

2. Submitted one brief-in-chief that satisfied the criteria in subd. 1. and that was

reviewed and approved by the court.

3. Conducted three contested trial court hearings, including one evidentiary

hearing, within the five years immediately preceding the application for certification.

4. Either has satisfied the criteria of par. (a) 2., or completed six credits of approved

legal education pertaining to criminal law within one year immediately preceding the

application for certification.

(d) Juvenile appellate certification. For an appeal of a case prosecuted under 4 HCC § 3,

or similar statute, other than a termination of parental rights case, the attorney has satisfied both of

the following criteria:

1. Satisfied the criteria of par. (a).

2. Either has completed four credits of approved legal education pertaining to child

and/or juvenile protection, within one year immediately preceding the application for

certification; or has been sole trial or appellate counsel of record in five cases filed under

4HCC § 3, or related statute, within the three years immediately preceding application for

certification.

(14) OTHER SPECIALIZED CERTIFICATION LISTS. The court may develop other specialized

lists under this section in response to changes in substantive or procedural law or developments in

forensic science.

(15) COURT’S AUTHORITY TO WAIVE CRITERIA. The court may allow an attorney’s

education, training or experience to substitute for any requirement set forth in s. 977.1035 or this

section. The court may waive the requirements in this section to assign a case to an attorney who

has a prior pending case with the same client.

977.105 Appeal of certification decisions.

(2) Any attorney may appeal the court’s certification decision, by mailing a letter of appeal to the

court within 30 days of the notice of the decision. The attorney shall state in the letter the

certification from which the attorney has been excluded or the decision from which the attorney

intends to appeal. The letter shall state the reasons why the attorney believes the decision was

improper.

(3) Upon receipt of an appeal letter, the court shall place the matter on the calendar of the next

supreme court session unless that meeting is less than 10 days from the receipt of the appeal letter,

in which case the matter may be scheduled for the following meeting. The court shall, at least 10

days before the hearing, inform the attorney of the time and place of the board meeting at which

the appeal will be considered.

(4) The court shall transmit to the attorney all material relied upon in reaching the certification

decision, including the certification application and all written comments received.

(5) The attorney may submit to the court any material that he or she believes is relevant to the

appeal.

(6) The court may deliberate the matter in closed session. The court shall issue a written decision

affirming, reversing or modifying the decision. The written decision shall be mailed to the attorney

within 20 days after the court’s meeting and shall be signed.

977.107 Voluntary removal. Any attorney may request to be removed from any certification list,

and the court shall remove the attorney. An attorney seeking reinstatement to a certification list

after voluntary removal shall submit an application as required by the court.

977.1075 Inactive status. (1) An attorney may decline to accept appointments and request in

writing to be placed in inactive status. If an attorney has not been appointed in a case for more than

one year, the court may place the attorney in inactive status and shall notify the attorney of the

change. Except as provided in sub. (2), the court shall return the attorney to active status upon

request.

(2) If an attorney has been in inactive status for more than 2 years, and seeks reinstatement to

active status, the attorney shall submit an application as requested by the court.

977.108 Access to files. (1) The court may not disclose the contents or substance of any review or

investigation prior to issuing a decision on certification, unless the attorney who is the subject of

the review or investigation first discloses the contents or the substance of the review or

investigation.

(2) Only certification lists, court proceedings and decisions under this chapter shall be considered

public documents and open to public inspection.

SUBCHAPTER II

ASSIGNMENT PROCEDURE

977.201 Definitions.

977.202 Emergency assignment procedure.

977.203 Regular assignment procedure.

977.204 Person’s right to refuse specific attorney.

977.205 Conflict cases.

977.207 Public representation after case commenced by retained counsel.

977.208 Court’s right to review indigency determination.

977.209 Special types of representation.

977.210 Written notice of assignment.

977.211 Appellate representation.

977.212 Investigative and expert services for private attorneys.

977.213 Staff attorney representation of non-indigent clients.

977.201 Definitions. In this chapter:

(1) “Emergency assignment” means assignment of counsel outside of normal business hours or

when regular assignment will not provide both effective and early representation.

2) “Regular assignment” means any situation in which counsel is required other than under sub.

gu q

(1).

977.202 Emergency assignment procedure. (1) In any emergency situation the court or court’s

designee shall evaluate the person for indigency as soon as possible.

(2) In any emergency situation, the court or court’s designee shall assign the attorney most readily

available to handle the emergency situation, whether that attorney is the primary attorney or a

private attorney.

(3) Unless the interests of justice require otherwise, the person shall be provided regular counsel

under s. 977.203 and the attorney who provides emergency representation need not continue on

the case and need not be permanently assigned.

(4) If it subsequently appears that the person provided emergency representation was not entitled

to publicly compensated counsel, that person shall be required to compensate the court for those

services at the hourly rate in existence at the time of appointment of counsel and, in no case in

excess of the maximum cost determined by the court or legislature to be the value of those legal

services.

977.203 Regular assignment procedure. (1) The court or court’s designee shall contact any

person who claims or appears to be indigent, has requested counsel, or has been referred by the

court for a court appointed attorney to determine the person’s eligibility for appointment of an

attomey. The court or court’s designee should first contact Wisconsin Judicare for representation,

only after Wisconisn Judicare has declined representation may the court or court’ designee look to

appointment of private counsel for public defender services.

(4) The court or court’s designee shall, upon finding a person eligible, immediately contact the

primary attorney or private attorney for purposes of assignment of counsel.

(5) The court or court’s designee shall advise all persons charged with a crime, detained for

purposes of juvenile or involuntary civil commitment proceedings, or otherwise facing a legal

proceeding which is within the scope of representation provided by the court appointed counsel,

prior to their initial court appearance, that they have a right to be represented by an attorney in the

proceeding if found eligible. The court or court’s designee shall advise all persons of the applicable

repayment obligation specified in s. 977.601 or 977.605 and, if applicable, the optional prepayment

amount specified in s. 977.602. The court or court’s designee shall also advise all persons prior to

their initial appearance that they have a right to a determination of their eligibility for those legal

services,

(6) If the person is eligible for publicly compensated counsel, either the primary attorney or another

certified attorney shall be assigned.

(7) If the case is to be assigned to the primary attorney with Wisconsin Judicare, a representative

of the court shall notify the attorney in the appropriate office of the primary attorney who will

represent that person.

(8) If the case is assigned to certified private counsel, a representative of the court shall

immediately contact the attorney whose name appears on the top of the appropriate certification

list and assign that attorney to represent that person. If that attorney cannot accept the assignment,

the next attorney on the list shall be contacted and the first attorney’s name shall be placed on the

bottom of the list. If the attorney accepts the assignment, that attorney’s name shall be placed on

the bottom of the list. Each attorney on the list of the certified court appointed counsel shall be

offered an equal opportunity at group assignment of cases. In all other respects, group assignments

shall be made in the manner specified for individual assignments.

977.204 Person’s right to refuse specific attorney.

(1) A person may request that the attorney assigned to represent him or her be discharged and that

another attorney be assigned, and the court appointed counsel shall honor such request, provided:

(a) It is the only such request made by the person in that case; and

(b) Such change in counsel will not delay the disposition of the case or otherwise be

contrary to the interests of justice.

(2) In the event the court authorizes an attorney to withdraw as counsel, the court or court’s

designee shall assign the attorney who next appears on the top of the appropriate certification list

and place the original attorney’s name on the top of that list.

977.205 Conflict cases. Any court appointed counsel may not represent more than one person at

trial charged in the same case or any client whose interests conflict with any other client.

977.207 Public representation after case commenced by retained counsel. (1) If it is necessary

for a person to obtain publicly compensated counsel after having retained counsel because of the

lack of sufficient funds, the attorney who was originally retained may be assigned and publicly

compensated if either:

(a) The court finds that the interests or administration of justice will be severely damaged

by a change in counsel; and

1. It appears that the attorney had a reasonable expectation of receiving his or her

entire fee when he or she was retained;

2. The necessity for publicly compensating this retained counsel has occurred no

more than once in the preceding 12 months; and

3. The client and attorney consent; or

(b) The retained attorney is certified to provide such representation; and

1. It appears that the attorney had a reasonable expectation of receiving his or her

entire fee when he or she was retained;

2. The necessity for publicly compensating this retained counsel has occurred no

more than once in the preceding 12 months; and

3. The court, client and attorney consent.

(2) Under no circumstances shall the stompensate counsel for services rendered prior to the

effective date of assignment by the state public defender.

(3) The method provided under s. 977.4025 shall be used to calculate the compensation by the

state public defender of the private attorney appointed under sub. (1).

977.208 Court’s right to review indigency determination.

(1) Any person determined by the court not to be eligible for publicly compensated counsel may

request that the supreme court review the court’s indigency determination.

(2) After affording the defendant and a court appointed counsel the opportunity to be heard, the

supreme court may order the trial court to provide representation, and the trial court shall assign

counsel.

(3) Court-ordered representation shall not preclude a finding of partial indigency and the

requirement that the person make partial payment to the court as provided by ch. VI.

977.209 Special types of representation. In the following types of cases private local counsel

may be assigned from the indicated certification lists:

(1) Probation, parole, or juvenile aftercare revocation cases — from the certified list relating to the

original offense.

(2) Extradition cases — from felony or misdemeanor certification list.

(3) Habeas corpus cases (prior to conviction) — from certified list relating to the original offense.

(4) Habeas corpus cases, after conviction — from appellate certification lists or from certification

lists relating to the original offense.

(5) Post-conviction motion cases — from appellate certification lists or from certification lists

relating to the original offense.

(6) Paternity and contempt cases — from appellate certification lists or misdemeanor or felony

certification lists.

(7) Extraordinary remedy cases — from felony, misdemeanor or appellate certification lists,

depending on nature of case.

977.210 Written notice of assignment. (1) As soon as a regular assignment of counsel is made,

the representative of the court or court’s designee shall provide the clerk of court having

jurisdiction over that case, in writing, the name, address, and telephone number of the attorney

providing representation.

(2) In cases assigned to local private counsel, the representative of the court or court’s designee

shall send that attorney written confirmation of the assignment showing:

(a) The effective date of the assignment;

(b) The type of case, including the court and case number (if known);

(c) The client’s full name, address, phone number, and present location;

(d) Information regarding compensation as provided in ch. IV.

977.211 Appellate representation. (1) Appellate representation shall be considered a separate

case and reassigned under s. 977.203.

(2) The court or court’s designee may assign to independent private counsel any case in which an

attorney from Wisconsin Judicare provided trial representation and it is arguable that the client

was not afforded effective representation.

(2) If an attorney assigned under these provisions finds it necessary to retain expert assistance, the

attorney shall apply to the court for permission to retain that expert assistance. The court may

approve the request. In the event of approval, the court shall provide reimbursement for the

assistance.

977.213 Attorney representation of non— indigent clients. If a court appoints an attomey to

represent a non~indigent client, the court shall receive reimbursement from the defendant for the

cost of the attorney’s representation as follows:

(1) For legal services rendered, at a rate which is in accordance with Ho-Chunk Nation Supreme

Court Rules.

(2) For expenses incurred incident to representation such as, but not limited to, costs for travel,

witnesses, discovery or experts, at a rate at which an attorney would be reimbursed by the court.

SUBCHAPTER HI

INDIGENCY CRITERIA

977.301 General rule.

977.3015 Verification.

977.302 Cost of retained counsel.

977.303 Determination of financial eligibility.

977.304 Information provided to applicants.

977.305 Certified statement.

977.3055 Voluntary termination of employment or disposal of assets.

977.306 Access to financial evaluations.

977.307 Change of circumstances.

977.301 General rule. An applicant for appointment of counsel by the court shall meet the

financial criteria set forth in this chapter.

977.3015 Verification. In order to screen the eligibility of applicants and collect amounts owed as

payment for representation, the court or court’s designee may verify information related to

eligibility, including social security numbers, income records, and proof of eligibility for

income—based programs.

977.302 Cost of retained counsel. (1) The anticipated cost of retaining counsel shall be

determined by this schedule:

Ist degree intentional homicide $17,500

Appellate category I $9,000

Appellate category II $4,500

Other felony with three year incarceration $5,000

Other felony $2,200

Felony diversion $1,500

Felony delinquency $1,500

Revocation $1,400

Misdemeanor $750

Traffic misdemeanor $750

Special proceedings $750

Other juvenile $600

(2) The court shall establish the cost of retaining counsel for any proceeding not covered by the

schedule in sub. (1).

(3) The court or court’s designee shall periodically review the actual cost of retaining private

counsel and report these findings to the legislature. The court may revise the schedule of the

anticipated cost of retaining counsel and use for a basis of determining budgets.

(4) The court may consider, in the case of an applicant who is the subject of two or more separate

proceedings, the anticipated cost of retaining counsel in multiple proceedings.

977.303 Determination of financial eligibility. (1) An applicant is financially eligible for

appointment of counsel by the court if both of the following criteria are met:

(a) Asset limitations. The anticipated cost of retained counsel under s. 977.302 exceeds the

applicant’s family assets deemed available under sub. (2) to pay the costs of legal representation.

(b) Income limitations. The anticipated cost of retained counsel under s. 977.302 exceeds

the applicant’s family income deemed available under sub. (3) to pay the costs of legal

representation.

(2) The court shall treat assets as available to the person to pay the costs of legal representation if

the assets exceed $2500 in combined equity value except that the court shall exclude the equity

value of vehicles up to a total equity value of $10,000 and shall exclude the first $30,000 of the

equity value of the home that serves as the individual’s homestead.

(3) Subject to subs. (4) and (5), the court shall consider income as available to pay the costs of

legal representation if the gross income exceeds 200 percent of the federal poverty guidelines,

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except that the court cannot consider per capita payments issued by any tribe as income for

purposes of this section.

(4) For the purpose of the calculations under this section, the court shall consider the applicant’s

anticipated income for the time period beginning at the time of the application and continuing for

the following time:

(a) For felony cases, six months.

(b) For appellate cases, eight months.

(d) For all other cases, four months.

(5) (a) Notwithstanding the criteria in sub. (1), an applicant is financially eligible for appointment

of an attomey by the court if the applicant’s only income is derived from one or more of the

following sources:

1. A Wisconsin works employment position under Wis. Stat. s. 49.148 (1) (a), (b),

or (c), or similar program.

2. Wisconsin works benefits under Wis. Stat. s. 49.148 (1m), or similar program.

3. Supplemental security income for the aged, blind, and disabled under 42 U.S.C.

1381-1383c, relief as defined in Wis. Stat. s. 49.01 (3), Stats., or any other similar

needs—based financial assistance program.

(b) Notwithstanding sub. (1), an applicant is financially eligible for appointment of

appellate counsel if the applicant has filed a notice of intent to pursue post-conviction relief,

indicating that:

1. The court has appointed counsel in the case.

2. His or her financial circumstances have not materially changed since the date on

which the applicant was determined to be eligible for the appointment of counsel in that

case.

(6) For the purpose of the calculations under this section, the court shall consider assets and income

of the applicant’s spouse as the applicant’s assets and income, unless the spouse is alleged to be

the victim of a crime allegedly committed by the applicant.

(9) The court or court’s designee shall annually review the standards specified in this chapter and

shall revise these standards as required.

977.304 Information provided te applicants. Before asking an applicant for financial

information, the court or court’s designee shall inform the applicant of all of the following:

(1) The applicant will be required to certify, under s. 977.305 (1), the truthfulness of the financial

information provided.

(2) The financial information provided by the applicant is not protected by the attorney-client

privilege.

(3) The applicant may be prosecuted for a felony offense if the applicant intentionally provides

false information.

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977.305 Certified statement. (1) All applicants for appointment of counsel by the court shall be

required to provide truthful information in a financial evaluation form as required under this

chapter. All such applicants shall sign a completed financial evaluation form certifying that the

financial information that they have provided is accurate to the best of their knowledge and belief,

and that they have not disposed of any assets for the purpose of qualifying for the appointment of

counsel.

(2) The court may appoint counsel pursuant to telephone eligibility interviews, in which cases the

clients shall sign the financial evaluation form as soon thereafter as practicable.

(3) The court shall retain for 3 years all financial evaluations.

977.3055 Voluntary termination of employment or disposal of assets. (1) If an applicant

voluntarily terminates employment within the 90 days following the date of application for

representation and for the purpose of having the court appoint counsel, the court shall calculate the

applicant’s income on the basis of the applicant’s wages before the voluntary termination of

employment.

(2) Ifan applicant disposes of assets for the purpose of having the court appoint counsel, the court

shall count the asset at its fair market value at the time is was disposed of minus the amount of

compensation received for the asset.

977.306 Access to financial evaluations. (1) Access to financial evaluations of applicants for

appointment of counsel by the court may not be granted to any person, except the applicant, a

person authorized by the applicant, the court’s designee, counsel appointed by the court, or the

court in which the applicant has a pending proceeding.

(2) Requests for access to financial evaluations made by a court in which the applicant has a

pending proceeding or by any person not specified in sub. (1) shall be referred to the applicant’s

counsel, if one has been appointed by the court.

(3) If the appointed counsel believes that the financial evaluation contains information that is

privileged or confidential, the attorney shall redact the privileged or confidential information

before providing the evaluation to the court under sub. (1). If the appointed counsel determines

that a requestor is not entitled to access to a financial evaluation, the attorney shall promptly notify

the requestor and the court of the denial of the request.

(5) Notwithstanding subs. (1) to (3), and subject to any motion, writ, or other process that the

appointed counsel deems appropriate to contest an order or subpoena, the appointed counsel shall

comply with any court order or subpoena for production of a financial evaluation.

977.307 Change of circumstances. (1) If a client has complied with the requirements of this

chapter and qualified financially for appointment of an attorney by the court, the client remains

eligible for continued representation in a pending matter notwithstanding a change in financial

circumstances.

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(2) Notwithstanding sub. (1), the court may adjust the payment amount, for a client whose financial

circumstances change during the course of appointed counsel representation.

SUBCHAPTER IV

PRIVATE ATTORNEY PAYMENT

977.401 Billing form.

977.402 Submission of bill.

977.4025 Compensation for public representation after case commenced by retained counsel.

977.403 Appeal.

977.404 Attorney compensation from client prohibited.

977.405 Private bar emergency rate reduction.

977.406 Annual attorney hours.

977.401 Billing form. At the time a private attorney is assigned a case by the court pursuant to s.

977.203, the court shall furnish the attorney with a billing form to be submitted as the case

progresses. The form shall include an itemized listing of the service provided and the expenses

incurred.

977.402 Submission of bill. Within 6 months of the conclusion of the case, the private attorney

shall submit the billing form to the court or court’s designee. The court shall promptly review the

bill to insure that attorney time billed reflects reasonable attorney practice in such a case, as

determined by the court or court’s designee, and, except as provided for in s. 977.406, promptly

authorize payment at the rate established by the supreme court. The “conclusion of the case” means

the conclusion of trial—level representation for trial cases and the conclusion of appellate—level

representation for appellate cases. If the bill is not submitted within 6 months of the conclusion of

the case, the court is not required to pay the bill promptly.

977.4025 Compensation for public representation after case commenced by retained counsel.

(1) Except as provided in sub. (3), if privately retained counsel is appointed by the court under s.

977.207 (1), the total amount reimbursed by the court to that attorney may not exceed an amount

equal to the total number of hours shown by contemporaneous time records to have been

reasonably expended on the case by that attorney multiplied by the rate the court is authorized by

supreme court rule to pay private attorneys, less any fees paid to the attorney by or on behalf of

the client. The attorney’s expenses are not included in the computation of the maximum amount

reimbursable by the court.

(2) (a) Fees, if any, paid by or on behalf of the client shall first be applied to the period of legal

representation prior to the effective date of assignment by the court, using the number of hours

shown by contemporaneous time records to have been reasonably expended on the case by that

attorney during that period multiplied by the rate the state public defender is authorized by supreme

court rule to pay private attorneys.

(b) Any fees received by the attorney from or on behalf of the client in excess of the amount

calculated under par. (a) shall be applied to the period of representation after the effective date of

assignment by the court and subtracted from the total amount reimbursable by the court under sub.

(1).

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(3) The court may, in his or her discretion, use a reasonable hourly rate that is greater than the

amount authorized by statute to compute the allowable fees calculated under sub. (2)(a) for the

period of representation prior to assignment by the court, if all of the following apply:

(a) The privately retained attorney had a written fee agreement which was signed by the

client at the beginning of the attorney’s representation;

(b) The attorney had a reasonable expectation of being paid fully for representation of the

client at the beginning of the representation, and that expectation is supported by the written fee

agreement;

(c) The attorney maintained contemporaneous time records for all time expended in the

representation of the client; and

(d) The court finds that the fee paid to the attorney by or on behalf of the client prior to the

appointment of publicly compensated counsel was reasonable.

(4) The amount reimbursed by the court may not exceed the amount computed by multiplying the

rate the court is authorized by statute to pay times the number of hours actually expended by the

attorney in this representation after the effective date of assignment by the court.

977.403 Appeal. (1) Any attorney may appeal the court’s reduction or denial of any submitted

bill. An appeal shall conform with all of the following:

(a) Notice of the appeal is in writing;

(b) Notice is submitted within 30 days of the receipt of the reduced or denied payment; and

(c) Delivery of the notice is by mail or in person to the supreme court.

(2) Failure to submit an appeal notice within 30 days shall bar the appeal.

(3) During the pendency of the appeal the attorney may negotiate the check for the reduced or

denied payment without waiver of the right to appeal.

(4) Upon receipt of an appeal letter, the supreme court clerk shall place the matter on the agenda

of the next session unless that meeting is less than 10 days from the receipt of the appeal letter, in

which case the matter may be scheduled for the following meeting. The supreme court clerk shall,

at least 10 days prior to hearing, inform the attorney of the time and place of the hearing at which

the appeal will be considered.

(5) The attorney may request that the court reproduce and submit to the supreme court clerk

material relevant to the appeal.

(6) The supreme court may deliberate the matter in closed session. The court shall issue a written

decision either affirming or modifying the decision of the trial court. The written decision shall be

mailed to the attorney within 20 days of the hearing and shall be signed by an officer of the board.

(7) The supreme court’s written decision shall constitute findings of fact and conclusions of law.

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(8) In the event the supreme court increases the amount to be paid to the attorney, the trial court

shall immediately authorize payment and request that the treasurer issue the payment as soon as

possible.

977.404 Attorney compensation from client prohibited. An attorney representing clients for the

public defender program may not solicit, attempt to solicit, or receive compensation from the

attorney’s client in addition to any compensation which the attorney has received or expects to

receive from the court pursuant to this chapter.

977.405 Private bar emergency rate reduction.

(1) The supreme court may reduce the payment rates, by not more that $2 per hour, for either or

both of the following:

(a) For time spent in—-court.

(b) For time spent out-of-court, excluding travel.

(2) The court may not reduce payment rates unless, after reasonable notice and an opportunity for

hearing, the court determines that:

(a) A quarterly report prepared, projects that money appropriated for public defender

services, will be depleted prior to the end of the current fiscal year or biennium;

(b) A reduction in payment rates would substantially reduce the projected deficit during

the current fiscal year or biennium; and

(c) A reduction in payment rates would not significantly decrease the availability of private

attorneys to represent indigent clients.

(3) The board may consider other factors, in addition to the prerequisites set forth in sub. (2), in

determining whether a rate reduction is appropriate.

(4) The reduction in rates under sub. (1) shall apply only to cases assigned after notice of the

court’s action is provided to private attorneys who are certified to take public defender cases.

(5) If the court orders a reduction in rates, it shall review the need for a continuing reduction at

least once every 2 months after the date of the reduction.

(6) Upon review, the court may, in its discretion, terminate the reduction in rates.

(7) Upon review, the court must terminate the reduction in rates if it is determined that funds, will

not be depleted before the end of the fiscal year or biennium.

977.406 Annual attorney hours. (1) The court may only reimburse a private attorney for 2080

hours worked in a single calendar year. This rule applies regardless of the year in which the bill

for legal services is presented.

(2) An attomey who predicts, based on current and foreseeable workload, that exceptional

circumstances will cause his or her billable hours in any calendar year to exceed 2080, may seek

advance approval from the court for payment of additional hours. An application for advance

approval must be made in writing, and must include an itemization of hours billed in the calendar

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year, an itemization of hours worked on pending cases, and the exceptional circumstances

justifying payment for excess hours.

(3) An attomey who is denied payment for hours worked under sub. (1) may appeal to the supreme

court, pursuant to the procedures set forth in s. 977.403, for a review of the denial of payment.

Such appeal must include documentation of the exceptional circumstance justifying payment.

SUBCHAPTER V

ADVERSARY REPRESENTATION

977.501 Definitions.

977.502 Adversary representation.

977.503 Prohibition against acting as stand—by counsel.

977.501 Definitions. In this chapter:

(1) “Court appointed attorney” means an attorney who is assigned to a case or any private bar

attorney who is appointed to a case by the court.

(2) “Stand-by counsel” means an attorney who has been appointed by a judge to assist him or her

in a criminal action because the defendant in the action has elected to proceed pro se.

977.502 Adversary representation. (1) Except as provided in sub. (2), all court appointed

attorneys shall act as adversary counsel in their representation of indigent clients.

(2) Nothing in this section shall prohibit court or court’s designee from authorizing a court

appointed attorney to file an amicus brief.

977.503 Prohibition against acting as stand—by counsel. (1) No court appointed attorney may

act as stand-by counsel in any case.

(2) This prohibition applies whether or not the court appointed attorney was originally providing

adversary representation in the case.

SUBCHAPTER VI

PAYMENT FOR STATE PUBLIC DEFENDER REPRESENTATION

977.601 Payment for legal representation.

977.6015 Written notice of payment obligation for legal representation.

977.602 Discount option.

977.6025 Determination of ability to pay.

977.603 Multiple related charges.

977.604 Multiple appointments on the same case.

977.6045 Reimbursement from clients with changed circumstances.

977.606 Referral to department of administration.

977.607 Representation regarding payment of attorney fees.

977.608 Reports on status of collections.

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977.601 Payment for legal representation. Except as provided in ss. 977.6.2 to 977.6045, a

person who is responsible for payment for legal representation provided by the court shall

contribute to the cost of the legal representation according to the following schedule:

Type of Case Amount Type of Case Amount

First Degree Intentional Homicide $7500

Misdemeanor $240

Revocation $240

Juvenile Felony $480

Felony $480

Other Juvenile $240

Felony Diversion $240

Special Proceeding $120

Appellate/Category I $1200

Appellate/Category II $480

977.6015 Written notice of payment obligation for legal representation. (1) The court or

court’s designee shall provide the following information in writing to all persons subject to

payment for legal representation, because they do not meet indigency criteria:

(a) The optional discount amount in s. 977.602.

(b) The maximum amount the person may be required to pay under the applicable fee

schedule in s. 977.601.

(c) The schedule for periodic payments if the person does not pay the optional discount

amount.

(d) The procedure to request a determination of ability to pay.

(2) Written notice is sufficient under this section if mailed to the person’s last known address.

977.602 Discount option. (1) A client may elect to pay, within 60 days of appointment of counsel

by the court; otherwise the amount may be deducted from a tribal member’s per capita distribution

as a debt owed to the nation. The optional discount amount for representation specified in the

following schedule:

Type of Case Amount Type of Case Amount

First Degree Intentional Homicide $600

Misdemeanor $60

Revocation $60

Felony $60

Special Proceeding $30

Felony Diversion $60

Appellate 1 $120

Appellate II $60

(2) If a client pays the optional discount amount under sub. (1), the client is not liable for any

additional payment for public defender legal counsel for that case.

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(3) The 60 day time period in sub. (1) may be extended for good cause.

977.6025 Determination of ability to pay. (1) The court or court’s designee shall determine

whether persons subject to payment for legal representation have the ability to pay all, or part of,

the costs of representation. A person has the ability to pay some amount to these costs if the person

has gross income in excess of 200% of the federal poverty guidelines, or has assets treated under

s. 977.303 (2) as available to pay the costs of legal representation. The court or court’s designee

may defer the determination of ability to pay until after the time period for payment of the optional

discount amount specified in s. 977.602 has expired.

(2) The court or court’s designee may determine that a person has the ability to pay under any of

the following circumstances:

(a) The person has gross income exceeding 200% of the federal poverty guidelines, or has

assets treated under s. 977.303 (2) as available to pay the costs of legal representation.

(b) The person does not notify the court or court’s designee by the date specified in the

notice sent to them under s. 977.6015 that they are unable to pay the specified periodic payments.

(c) The person does not comply with a request of the court or court’s designee for

information necessary to verify their financial circumstances.

(3) The court or court’s designee may periodically review a person’s ability to pay and may rely

upon information obtained from employment and tax records to determine ability to pay. When a

person originally unable to pay for legal representation is later determined to have the ability to

pay, the court or court’s designee shall send notice of a periodic payment schedule to the person’s

last known address.

(4) This section does not apply to persons subject to reimbursement under s. 977.605 or 977.6045.

977.603 Multiple related charges. (1) If multiple related charges for one client are issued on

separate complaints, the court may waive the reimbursement fee for cases opened under any of the

following circumstances:

(a) The multiple complaints allege the issuance of forged or worthless checks on the same

account and within a period of three months or less.

(b) The multiple complaints allege offenses arising out of a single incident.

(2) The reimbursement fee for a case opened based on a reissuance of a criminal complaint

previously dismissed is waived.

(3) Waiver of reimbursement fees under this section applies both to the reimbursement fee under

s. 977.601 and the optional discount amount under s. 977.602.

977.604 Multiple appointments on the same case.

When the same case results in multiple appointments of counsel for a client for any of the following

reasons, the client shall not be charged an additional fee for the case:

(1) The case was reassigned for administrative reasons or because of a conflict of interest.

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(2) The client requested substitution of counsel.

(3) The client retained a private attorney who withdrew before completion of the case.

(4) The client was granted a new trial after the judgment was vacated on ineffective assistance of

counsel grounds.

977.6045 Reimbursement from clients with changed circumstances. (1) The court or court’s

designee may, assess a payment amount in excess of the applicable amount in s. 977.601 if the

client is responsible for payment, and after counsel is appointed by the court, does not meet the

financial criteria specified in s. 977.303.

(2) In assessing a payment amount under sub. (1), the state public defender shall consider the costs

of providing the client with representation and the point in the applicable proceeding at which the

client no longer met the financial criteria specified in s. 977.303.

977.606 Referral to department of justice. The court or court’s designee shall refer to the

department of justice a collection account of a person who has been determined able to pay, has

not paid the optional discount amount, has been given a monthly payment schedule and has missed

a monthly payment by more than 10 days.

977.607 Representation regarding payment of attorney fees. The court shall not provide

representation to a person on the issue of the payment amount owed to the court.

977.608 Reports on status of collections. The court shall submit quarterly reports to the finance

committee and to the department of justice regarding the collection of payments ordered. These

reports shall include the amount collected and the amount of accounts receivable referred to the

department of justice during each reporting period.

SUBCHAPTER VII

DISCOVERY PAYMENTS

977.701 Scope of chapter on discovery payments.

977.702 Maximum rates for copies of discovery materials.

977.703 Temporary reduction or suspension of payment when appropriation for discovery is

insufficient.

977.701 Scope of chapter on discovery payments.

(1) In this chapter, “discovery materials” means the materials and information that the tribal

prosecutor or other prosecuting attorney is required to disclose by ss. 971.23, or by the constitution

and laws of this Nation.

(2) This chapter applies to all discovery materials provided to any attorney appointed by the court,

primary or private, whether or not the attorney has filed a demand for discovery or made any other

formal request for discovery materials,

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977.702 Maximum rates for copies of discovery materials. (1) The following rates are the

maximum fees that the court may pay for copies of discovery materials in any case or proceeding

in which the court appoints counsel:

(a) For paper copies of written or printed materials, $0.20 per single-sided page, or $0.35

per double-sided page.

(b) For copies of digital videodiscs (DVDs), digital audio recordings, and compact discs

(CDs), $5.00 per disc.

(c) For copies of photographs, $0.50 per print for a print that is 5x7 inches or less, and

$1.00 per print for all others.

(d) For copies of videocassette recorder (VCR) tapes and audio cassette tapes, $5.00 per

recording.

(2) The court may not pay a fee for ancillary expenses related to the provision of discovery

materials, including fees for the following:

(a) Labor costs, postage, shipping, equipment costs, or other costs that would result in a

fee exceeding the amount specified in sub. (1).

(b) Compiling, preparing, reviewing, or transmitting paper or electronic documents.

(c) Duplicate items, unless specifically requested by the attorney appointed by the court.

(d) Items that the court or court’s designee has advised the provider not to include within

discovery materials.

(3) Except as provided in sub. (2), the supreme court may establish temporary maximum fees for

copies of discovery materials in formats not specified in sub. (1). The supreme court shall report

any fees established under this subsection to the trial court.

977.703 Temporary reduction or suspension of payment when appropriation for discovery

is insufficient.

(1) When the appropriation that includes funds for payments under this chapter is insufficient to

pay for copies of all the discovery materials that the court anticipates will be required during the

biennial budget period, the court may temporarily reduce or suspend payments.

(2) The court shall notify the affected discovery provider of the nature and anticipated duration of

any reduction or suspension of payment under sub. (1).

(3) If the appropriation specified in sub. (1) was insufficient in two consecutive fiscal years to pay

for all discovery materials that the court required, the court shall report the insufficiency to the

supreme court, which may consider promulgating rules to revise the rates in s. 977.702.

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