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Assigned Counsel Manual

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Assigned Counsel Manual Committee for Public Counsel Services 100 Cambridge Street, 14th Floor, Boston, MA 02114 Tel: (617) 482-6212 – Fax: (617) 988-8495 ASSIGNED COUNSEL MANUAL POLICIES AND PROCEDURES January 1, 2019 - Version 1.13 Subject to continuous online revision This manual informs attorneys representing indigent clients through the Committee for Public Counsel Services, pursuant to G.L. c. 211D of the qualification, training and performance requirements, the billing process, audit and evaluation procedures, and other policies and procedures related to assignment and compensation. Attorneys who accept assignments of cases, pursuant to G.L. c. 211D, are required to follow the policies and procedures in this manual and any other CPCS publications, and any amendments, revisions, or additions to CPCS policies and procedures. Court Cost Vendors who accept compensation from the Indigent Court Cost Act, G.L. c. 261, §§ 27A-D, are required to follow the policies and procedures in the Court Cost Vendor Manual and any other CPCS publications, and any amendments, revisions, or additions to CPCS policies and procedures. Table of Contents 1. Scope of Services of Committee for Public Counsel Services for Persons Determined to be Indigent by the Court 1.1 2. General Policies Applicable to All Assigned Counsel 2.1 3. Certification and Assignment Procedures 3.1 A. Preamble 3.2 B. Criminal Proceedings 3.2 C. Delinquency, Youthful Offender Proceedings, DYS Grant of Conditional Liberty Revocation Proceedings, and Juvenile Parole Proceedings 3.9 D. Appeals & Other Post-Conviction Matters 3.24 E. Mental Health Proceedings 3.25 F. Children and Family Law Proceedings 3.28 G. Children and Family Law (CAFL) Representation at the Appellate Level (Care and Protection, Termination of Parental Rights, Guardianship, and CRA Petitions) 3.33 H. Minors Seeking Judicial Consent for Abortion 3.36 I. Sex Offender Registry Board 3.37 J. Sexually Dangerous Person (SDP) Proceedings 3.42 K. Waiver of Training Requirements 3.47 4. Performance Standards 4.1 A. Preamble 4.2 B. Performance Standards Governing Representation of Indigents in Criminal Cases 4.2 C. Performance Standards Governing Representation of Juveniles in Delinquency and Youthful Offender Cases 4.38 D. Performance Standards Governing Representation of Juveniles in Department of Youth Services Grant of Conditional Liberty Revocation Cases 4.82 E. Performance Standards Governing Juvenile Parole Representation 4.104 F. Performance Standards Governing Representation of Clients on Criminal Appeals Post-Conviction Matters 4.128 G. Performance Standards Governing the Representation of Clients in Civil Commitment Cases 4.132 H. Performance Standards Governing the Representation of Indigent Adults in Guardianship Proceedings Under G.L. c. 190B (Including “Substituted Judgment” Matters) and in Authorization to Treat Proceedings Under G.L. c. 123 4.136 I. Performance Standards for Representation of Clients by Mental Health Appellate Counsel 4.144 - i - J. Supplemental Performance Standards Governing Appeals of Civil Commitment Matters Pursuant To G.L. c. 123, § 9(a) 4.147 K. Performance Standards Governing the Representation of Clients in Involuntary Admissions Under G.L. c. 123, § 12(B) 4.148 L. Performance Standards Governing the Representation of Clients in “Sexually Dangerous Person” Proceedings 4.151 M. Performance Standards Governing the Representation of Clients in Sex Offender Registry Board Proceedings 4.165 N. Performance Standards Governing the Representation of Children and Parents in Child Welfare Cases 4.186 O. Performance Standards Governing the Representation of Clients in Child Welfare Appeals 4.223 P. Performance Standards Governing Minors Seeking Judicial Consent for Abortion 4.230 5. Policies and Procedures Governing Billing and Compensation 5.1 A. Compensation 5.3 B. Publication of Policies of the Committee for Public Counsel Services 5.3 C. Prohibition from Being Privately Retained on the Previously Assigned Case 5.4 D. Representation of CPCS Clients on Unrelated Cases 5.6 E. Collateral Representation 5.6 F. CAFL Post-Disposition Related Matters 5.8 G. Notices of Assignment of Counsel 5.8 H. Becoming a State Vendor – Instructions and Forms 5.10 I. Indigent Court Costs Vendor Record Keeping Requirements 5.11 J. Attorney Certification Requirements 5.12 K. Bail-Only Cases 5.12 L. Late Bills 5.12 M. Representation-Concluded Bills 5.13 N. Determining When Representation is Concluded 5.13 O. Probation Surrenders 5.16 P. Annual Caseload Limits 5.16 Q. Billable Hours Limit Per Fiscal Year 5.18 R. Monthly Interim Billing 5.19 S. Ten-Hour Daily Billing Limit 5.19 T. Two-County Limit 5.21 U. Bilingual Attorneys 5.21 V. Children and Family Law Cases: Pending Caseload Limit 5.22 W. Children and Family Law Cases: Client Contact Certification 5.22 X. Submission of Bills and Record-Keeping Requirements 5.23 Y. Associates, Co-Counsel, and Paralegals 5.28 Z. Office-Related Expenses 5.31 - ii - AA. Client Personal Expenses 5.32 BB. Travel Expenses 5.32 CC. Other Expenses 5.35 DD. Expenses: Documentation Required 5.35 EE. Expenses: Billing Instructions 5.35 FF. Duty-Days 5.35 GG. Compensation Rates 5.37 HH. Docket Entry and Documentation Requirements 5.40 II. Continuing Legal Education 5.40 JJ. 1350 Hour Statutory Limit on New Assignments 5.41 KK. Attorney Payment Schedule 5.41 Appendix A: Sample Criminal Time Record 5.42 Appendix B: Sample CAFL Time Record 5.42 6. Court Costs of Indigent Persons Fund G.L. c. 261, §§ 27A-G 6.1 A. Introduction 6.1 B. Issues Representing Indigent Persons Under the ICCA 6.7 C. Information on Selected ICCA Services 6.8 D. Payment From the Indigent Court Costs Fund 6.9 7. Audit and Oversight Procedures 7.1 A. Preamble 7.1 B. Authority 7.1 C. Audit and Oversight Procedure – Full Audits 7.2 D. Disposition Recommendation 7.3 E. Response to Disposition Recommendation 7.4 F. Settlement of Claims 7.4 G. Hearings 7.5 H. Decisions of Hearing Officers 7.6 I. Suspension, Removal, Failure to Comply and Re-payment 7.6 J. Threshold Billing Inquiries 7.7 K. Interest Rate Policy 7.9 8. Complaints Regarding the Performance and Conduct of Assigned Attorneys 8.1 A. Preamble 8.1 B. Scope 8.1 C. Investigation Procedure 8.2 D. Subcommittee Review 8.5 9. Appendix – Assigned Counsel Forms 9.1 - iii - 1. Scope of Services of Committee for Public Counsel Services for Persons Determined to be Indigent by the Court The Committee assigns counsel in the trial and appellate courts for: A. Criminal Matters 1. Defendants in criminal matters where incarceration is possible B. Juvenile Matters 1. Juveniles in delinquency matters 2. Juveniles in Youthful Offender matters 3. Juveniles in revocation of grants of conditional liberty in DYS proceedings 4. Clients in Juvenile Parole matters C. Child Welfare/State Intervention and Family Law Matters 1. Parents and children in care and protection cases (G.L. c. 119, § 29) 2. Parents and children and in other proceedings regarding child custody in which DCF or a licensed placement agency is a party (G.L. c. 119, § 29) 3. Parents and children in divorce or paternity actions in which the court is contemplating giving custody of a child to DCF (Balboni v. Balboni, 39 Mass. App. Ct. 210 (1995)) 4. Parents and children in permanency hearings (G.L. c. 119, §§ 29B, 29C) 5. Children in all child requiring assistance cases (G.L. c. 119, § 39F) and parents in such cases if the court is considering taking custody of the child or if there is a hearing or proceeding regarding custody of the child (Matter of Hilary, 450 Mass. 491 (2008); G.L. c. 119, § 39F 6. Children who are the subjects of guardianship petitions (if counsel is requested or if the court determines counsel is warranted under G.L. c. 190B, § 5-106), parents who contest the entry of or seek modifications of guardianship orders (Guardianship of V.V., 470 Mass. 590 (2015); L.B. & another v. Chief Justice of the Probate and Family Court Department & others, 474 Mass. 231 (2016)), and - 1.1 - guardians in a petition for removal, if the court determines that the guardian has been the primary caretaker for the child for not less than 2 years or for an otherwise significant period of time during the child’s lifetime. This period of time may include caretaking provided during or prior to the guardianship. The guardian must satisfy the requirements for indigency. (MGL c. 190B s.5-212(d)). 7. Young adults between the ages of 18 and 22 who are under the continued responsibility of DCF. G.L. c. 119, § 23(f) 8. Parents and children in termination of parental rights actions brought by the Commonwealth or a licensed child care agency (G.L. c. 210, § 3) and parents contesting such actions brought by others (Adoption of Meaghan, 461 Mass. 1006 (2012)) 9. Minors less than 16 years of age seeking judicial consent for abortions (G.L. c. 112, § 12R) D. Mental Health Matters 1. Guardianship and acceptance of foreign guardianship (G.L. c. 190B, § 5-106) 2. Validation of healthcare proxy (G.L. c. 201D, § 17) 3. Authorization to admit to a nursing home for less than 60 days (G.L. c. 190B, § 5-309 (g)) 4. Substituted judgment guardianship for extraordinary treatment (for example, anti-psychotic medication, or Rogers cases)(G.L. c. 190B, § 5-106) 5. Persons being held involuntarily (G.L. c. 123, §12b) 6. Respondents in petitions to commit as mentally ill (G. L. c. 123, §§ 7, 8, 16, 18) 7. Respondents in petitions for authorization to treat for mental illness (G. L. c. 123, § 8B) 8. Persons appealing from commitment orders and authorizations to treat (G.L. c. 123, § 9(a)) 9. Persons committed as mentally ill petitioning for discharge (G.L.
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