18 CSR — Public Defender Commission

Division 10 Office of State Public Defender

Chapter 1 Organization of Agency

18 CSR 10-1.010 Organization of the Agency {#sec-18-csr-10-1.010 omnilex-key=us-mo-regs-official--title-18--18 CSR 10-1.010}

PURPOSE: This rule describes the organization of the Public Defender Commission, the Office of State Public Defender and the State Public Defender System.

(1) The Public Defender Commission, the Office of State Public Defender and the State Public Defender System are established by provision of Missouri statute as found in

Chapter 600, RSMo.

(2) The Office of State Public Defender is an independent department of the judicial branch of government and is the departmental office for the State Public Defender System.

(3) The method and procedure for contacting or obtaining information concerning the Public Defender Commission, the Office of State Public Defender or the State Public Defender System, or for making submission or requests for information shall be through contact with the State Public Defender Director as follows: State Public Defender Director, Office of State Public Defender, Woodrail Centre, 1000 W. Nifong, Bldg. 7, Ste. 100, Columbia, MO 65203.

Filed Feb. 14, 2002, effective Aug. 30, 2002.

Non-substantive change filed Nov. 23, 2020, published Jan. 29, 2021. *Original authority: 536.023, RSMo 1975, amended 1976, 1997, 2004 and 600.017, RSMo 1982.

History

• AUTHORITY: sections 536.023 and 600.017, RSMo 2016. Original rule filed Jan. 9, 1985, effective April 11, 1985. Amended:

Chapter 2 Definition of Eligible Cases

18 CSR 10-2.010 Definition of Eligible Cases {#sec-18-csr-10-2.010 omnilex-key=us-mo-regs-official--title-18--18 CSR 10-2.010}

PURPOSE: This rule establishes the types of cases for which the State Public Defender System will provide representation to indigent accused.

(1) The director and defenders shall provide legal services to an eligible person— (A) Who is detained or charged with a felony, including appeals from a conviction in a case;

(B) Who is detained or charged with a misdemeanor which will probably result in confinement in the county jail upon conviction, including appeals from a conviction in a case;

(C) Who is detained or charged with a violation of probation or parole;

(D) Who has been taken into custody pursuant to section 632.489, RSMo, including appeals from a determination that the person is a sexually violent predator;

(E) For whom the federal constitution or the state constitution requires the appointment of counsel; and (F) For whom, in a case in which s/he faces a loss or deprivation of liberty, any law of this state requires the appointment of counsel; however, the director and the defenders shall not be required to provide legal services to persons charged with violation of county or municipal ordinances.

(2) Employees of the State Public Defender System shall not serve as hybrid, standby, or advisory counsel in any matter.

(3) Definition of Standby, Hybrid, and Advisory Counsel.

(A) For purposes of determining eligibility under this section— 1. The terms “standby,” “hybrid,” and “advisory counsel” are defined as attorneys who are appointed by the court to consult with or assist a defendant, appellant, or movant in the preparation or presentation of evidence or legal argument in any court or tribunal where that defendant, appellant, or movant has waived the right to counsel or asserted his right to full or partial self-representation.

(4) The State Public Defender System shall not represent a person who faces a loss or deprivation of liberty pursuant to section 632.415, RSMo.

Filed Dec. 27, 2007, effective July 30, 2008.

Amended: Filed July 8, 2010, effective Feb. 28, 2011. *Original authority: 600.017, RSMo 1982; 600.042, RSMo 1982, amended 1991, 1993, 1995, 1999, 2006; and 600.043, RSMo 1982.

Rule Action Notice: On December 24, 2009, the Missouri Supreme Court, in STATE ex rel. MISSOURI PUBLIC DEFENDER COM- MISSION, J. MARTY ROBINSON, AND WAYNE WILLIAMS, Relators, v. THE HON- ORABLE KENNETH W. PRATTE, Respondent, 298 S.W.3d 870 (Mo banc 2009), struck down certain provisions of the rule that permitted the public defender to deny representation to defendants who at anytime during the pendency of their cases retained private counsel. The court invalidated sections 18 CSR 10-2.010(2) and (3).

ROBINCARNAHAN(1/29/11)

History

• AUTHORITY: sections 600.017(10) and 600.043, RSMo 2000 and sections 600.042.1(8) and 600.042.3, RSMo Supp. 2010. Original rule filed Jan. 9, 1985, effective April 11, 1985. Amended: Filed Feb. 14, 2002, effective Aug. 30, 2002. Amended:

Chapter 3 Guidelines for the Determination of Indigence

18 CSR 10-3.010 Guidelines for the Determination of Indigence {#sec-18-csr-10-3.010 omnilex-key=us-mo-regs-official--title-18--18 CSR 10-3.010}

PURPOSE: This rule establishes the guidelines for the determination of indigence and prescribes a form for that purpose.

(1) Eligibility for Representation.

(A) A person shall be considered eligible for representation when it appears from all the circumstances of the case including his/her ability to make bond, his/her income and the number of persons dependent on him/her for support that the person does not have the means at his/her disposal or available to him/her to obtain counsel in his/her behalf and is indigent as hereafter determined.

(B) The determination of indigence of any person seeking the services of the State Public Defender System shall be made by the defender or anyone serving under him/her at any stage of the proceeding. Upon motion by either party, the court in which the case is pending shall have authority to determine whether the services of the public defender may be utilized by the defendant. Upon the court’s finding that the defendant is not indigent, the public defender shall no longer represent the defendant.

(2) Public Assistance.

(A) Applicants receiving public assistance are eligible for defense services provided by Missouri State Public Defender. Supplemental Nutrition Assistance Program (SNAP);

Special Supplemental Nutrition Program for Women, Infants, and Children (WIC); Temporary Assistance for Needy Families (TANF); Medicaid; public housing payments; childcare assistance; Supplemental Security Income; and similar benefits are considered public assistance.

(B) If an applicant is receiving disability payments, pension, unemployment compensation, Veteran’s benefits, or Social Security retirement or disability benefits, this is considered income and the amount of the payment must be considered.

(3) Ability to Make Bond.

(A) The ability of an applicant to make a cash bond shall be considered on the question of indigence. Any amount of cash bond posted directly to the court shall be considered as a means available to the applicant to obtain counsel, and compared directly to the probable expense and burden of defending the pending case. The ability of an applicant to make a surety bond in excess of forty-nine thousand nine hundred ninety-nine dollars ($49,999) should be considered on the question of whether the applicant has the means at his/her disposal or available to him/her to obtain counsel in his/her behalf.

(4) Ability to Hire Private Counsel on a Pending Case.

(A) The ability of an applicant to hire private counsel on one case should be considered as evidence that the applicant has means available to obtain counsel on the subsequent case in which the applicant seeks services, unless the assumed cost of private counsel on the case(s) without representation greatly exceeds that of the case(s) with representation.

(5) Maximum Qualifying Income Scale.

(A) A defendant may be considered indigent if his/her gross pay and other sources of income do not exceed one hundred fifty percent (150%) of the federal poverty guideline as issued in the Federal Register by the U.S.

Department of Health and Human Services.

(B) When making the financial determination, the following factors should be taken into consideration:

1. Spouse’s Income—If the applicant is married and not separated from his/her spouse, the spouse’s financial status shall be considered unless the spouse is the alleged victim; and 2. Parent’s Income—The income of a parent who is financially responsible for a child under eighteen (18) years of age must be considered, unless the parent is an alleged victim, or an alleged victim is a member of the family of the child or the family of the parent. Eligibility is not forfeited when the person financially responsible for the child is able to hire counsel but does not do so if the child does not have the means at his/her disposal to hire counsel. Children under eighteen (18) years of age without the means at their disposal to hire counsel are presumed to be indigent when in the legal custody of Missouri Department of Social Services/Children’s Division, or when the child is detained and the parent or custodian cannot be located or does not comply with the application process.

(6) Discretionary Aspects of Determining Indigence.

(A) The previously mentioned financial criteria are to be applied in all cases and considered with the probable expense and burden of defending the case.

(B) An applicant who is currently receiving services from the public defender, or who has received those services within the last twelve (12) months shall be presumed indigent and eligible for services unless the applicant’s application indicates a change in circumstances which would make the applicant not indigent.

(C) An individual requesting public defender service shall complete and sign an Application for Public Defender Services.

Amended: Filed Feb. 14, 2002, effective Aug. 30, 2002. Amended: Filed July 24, 2006, effective Jan. 30, 2007. Amended: Filed Dec. 29, 2021, effective July 30, 2022. *Original authority: 600.017, RSMo 1982; 600.086, RSMo 1976, amended 1982, 1993; and 600.090, RSMo 1976, amended 1982, 1986, 2016.

History

• AUTHORITY: sections 600.017(10), 600.086, and 600.090, RSMo 2016. Original rule filed Nov. 12, 1985, effective Feb. 13, 1986.

Chapter 4 Payment of Private Counsel Litigation Costs

18 CSR 10-4.010 Payment of Private Counsel Litigation Costs {#sec-18-csr-10-4.010 omnilex-key=us-mo-regs-official--title-18--18 CSR 10-4.010}

PURPOSE: This rule provides a process for appointed, pro bono, and privately retained defense counsel representing indigent defendants in eligible criminal cases to request coverage of reasonable litigation expenses from the Office of the State Public Defender.

PUBLISHER’S NOTE: The secretary of state has determined that the publication of the entire text of the material which is incorporated by reference as a portion of this rule would be unduly cumbersome or expensive.

This material as incorporated by reference in this rule shall be maintained by the agency at its headquarters and shall be made available to the public for inspection and copying at no more than the actual cost of reproduction.

This note applies only to the reference material. The entire text of the rule is printed here.

(1) Definitions.

(A) Appointed counsel, for purposes of this rule, refers to attorneys who are neither in the employ of the Office of the State Public Defender nor contracted by the state public defender, who were appointed to an eligible criminal case in question by the court due to the unavailability of the public defender.

(B) Eligible criminal case means any case in which, but for private counsel’s representation, an indigent defendant would be entitled to public defender services as set forth in

section 600.042.3-4, RSMo Supp. 2014.

(C) Indigent defendant means a person who meets the indigence standards for public defender representation as set forth in section 600.086.1-3, RSMo Supp. 2014 and 18 CSR 10-3.010.

(D) Litigation expenses include, but are not limited to, the costs of investigation, depositions, expert witnesses and consultants, forensic tests or examinations, records, transcripts, et cetera, which are reasonably necessary for the presentation of a defense on behalf of, or testing of the state’s case against, the indigent defendant. Attorney’s fees and costs associated with support staff or office overhead do not constitute litigation expenses.

(E) Pro bono counsel, for purposes of this

rule, refers to attorneys who are neither in the employ of the Office of the State Public Defender nor contracted by the state public defender, but agreed to provide defense representation for an indigent defendant in an eligible criminal case without pay.

(F) Privately retained defense counsel, for purposes of this rule, refers to attorneys who are neither in the employ of the Office of the State Public Defender nor contracted by the state public defender, who were hired by, or on behalf of, the defendant to provide defense representation in the case in question in return for an agreed upon fee.

(G) State public defender, for purposes of this rule, shall encompass both the director of the Office of the State Public Defender and his/her designee(s) to whom the responsibility and duties described herein have been assigned.

(2) Qualification of a Case for Public Defender Assistance with Litigation Expenses.

(A) Before specific requests for litigation expenses may be considered by the state public defender, 1) the state public defender must approve the case as qualified for litigation expense assistance from public defender funds and 2) litigation funds must be available.

(B) To qualify for litigation expense assistance— 1. Proof must be provided that the defendant is indigent and charged in an eligible criminal case. This shall be done through completion of the Application and Affidavit Requesting Public Defender Services and provision of a copy or list of all pending charges against the defendant;

2. If the defendant is represented by appointed counsel, a copy of the court’s appointment is required. Upon provision of the appointment, charges, and proof of indigence, the case shall be qualified for litigation expense assistance, pursuant to section 600.064.4, RSMo;

3. If the defendant is represented by pro bono counsel, the attorney shall submit a statement that he/she is providing representation pro bono. Upon provision of this verification of pro bono status, the charges, and proof of indigence, the state public defender may qualify a case for litigation expense assistance when it is determined to be in the best interests of the Office of the State Public Defender to do so; and 4. If the defendant is represented by privately retained counsel, the attorney shall submit a statement detailing the fee agreement reached with the defendant, as well as a list of all fees and expense reimbursements paid to date by, or on behalf of, the defendant, and any litigation expenses already incurred. Upon provision of this fee information, the charges, and proof of indigence, the Office of the State Public Defender may approve litigation expense assistance when it is determined to be in the interests of the Office of the State Public Defender to do so.

In making this determination, the Office of the State Public Defender will take into account fees paid to contract counsel in similar cases.

If the amount private counsel received in the instant case, less litigation expenses already paid by the private counsel, does not exceed what the Office of the State Public Defender would ordinarily pay in a similar case, or within the discretion of the Office of the State Public Defender does not significantly exceed that amount, and there is no reasonable expectation that private counsel will receive in excess of this amount from the client, the case may be eligible for litigation expenses.

(C) The Office of the State Public Defender shall make available all forms and information necessary to request approval of a case for litigation expense assistance on its website and upon request, and shall designate therein the name and contact information for the individual or department charged with reviewing and processing such requests.

(D) Upon a determination by the state public defender that a case is eligible for litigation expense assistance, the attorney providing representation shall be entitled to submit requests for reasonable litigation expenses on the defendant’s behalf.

(3) Requests for Litigation Expenses in a Qualified Case.

(A) Each anticipated litigation expense for which public defender assistance is sought must be requested and approved in advance of any expense being incurred or service provided, in accordance with procedures established by the state public defender.

(B) All information provided to the Office of the State Public Defender pertaining to a litigation expense request shall have the same confidentiality protections applicable to cases handled by the Office of the State Public Defender.

(C) The state public defender shall have sole discretion in determining whether any request to provide litigation expenses from the public defender budget shall be approved or denied, along with any conditions and/or restrictions determined appropriate for expenditure of public defender funds.

(D) The state public defender shall develop procedures for the submission and payment of invoices for approved litigation expenses. Compliance with said procedures by the attorney, and by any service providers retained by the attorney pursuant to Missouri State Public Defender (MSPD) approval of a JASONKANDER(4/30/15) litigation expense request, is required in order to obtain payment.

(E) The state public defender retains the right to decline to pay costs incurred in excess of the amount approved. It shall be the responsibility of the attorney to ensure that any service providers retained pursuant to state public defender approval of a litigation expense request are informed of the maximum approved amount and of the need to seek additional approval before exceeding that amount.

Rule Action Notice: On December 24, 2009, the Missouri Supreme Court, in STATE ex rel. MISSOURI PUBLIC DEFENDER COM- MISSION, J. MARTY ROBINSON, AND KEVIN O’BRIEN, Relators, v. THE HONOR- ABLE GENE HAMILTON and THE HONOR- ABLE GARY OXENHANDLER, Respondents, 298 S.W.3d 870 (Mo banc 2009), ruled that the public defender commission may not limit availability of public defender district offices by category of case, [that] “the rule authorizes the public defender to make the office unavailable for any appointments until the caseload falls below the commission’s standard.” Subsection 18 CSR 10-4.010(2)(E) is voided by the court’s ruling.

4CODE OF STATE REGULATIONS

(4/30/15) JASONKANDER

History

• AUTHORITY: sections 600.017(10), 600.086, and 600.090, RSMo 2000, and sections 600.042(8) and 600.064.4, RSMo Supp. 2014. Emergency rule filed Dec. 18, 2007, effective Dec. 28, 2007, expired June 30, 2008. Original rule filed Dec. 27, 2007, effective July 30, 2008. Rescinded and readopted: Filed Oct. 8, 2014, effective May 30, 2015. Original authority: 600.017, RSMo 1982; 600.086, RSMo 1976, amended 1982, 1993; and 600.090, RSMo 1976, amended 1982, 1986.

Chapter 5 Public Defender Fees for Service

18 CSR 10-5.010 Public Defender Fees for Services {#sec-18-csr-10-5.010 omnilex-key=us-mo-regs-official--title-18--18 CSR 10-5.010}

PURPOSE: This rule establishes a schedule of charges to be assessed against individuals who are eligible for public defender services and who receive such services in accordance with Chapter 600 and section 600.090.1(2), RSMo, 2000.

(1) Application.

(A) The state public defender is statutorily obligated to represent individuals accused of certain crimes and who are without means to secure private defense counsel. Once an individual is determined eligible for services by the public defender or the court, the public defender shall immediately commence representation. Every individual receiving public defender services is required to reimburse the public defender commission for the costs of the representation in such amounts as the individual can reasonably pay, either in a single payment or by installments in accordance with the schedule of chargers hereby established by this rule.

(2) Schedule of Charges.

(A) The commission hereby establishes the following schedule of charges to be assessed as fees owed the state public defender for services rendered:

BASE SCHEDULE OF CHARGES

1. Entry with early withdrawal . $25.00 2. Misdemeanors and Probation Violation Cases . . . . . . . . $125.00 3. Felonies, Appeals, and Post Conviction Remedies . . . . . $375.00 4. Felony Sex Cases . . . . . . . $500.00 5. Murder Non Capital and Civil Commitment Cases . . . $750.00 6. Capital Murder Cases . . . . . $1,500.00 (B) The fees assessed by the schedule of charges constitute the entire costs assessed against an individual receiving public defender services in an individual case. If an individual has more than one (1) case, a fee will be charged in each case according to the schedule of charges.

(C) When an individual is criminally charged with separate counts within the same indictment or information, the most serious count charged will determine the charge assessed as fees for the case.

(D) For good cause shown, the Office of the Public Defender may waive or reduce the amount assessed as a charge for services.

(3) No Fee Cases.

(A) No fees shall be assessed for state-provided defender services in cases in which the individual receiving services is under eighteen (18) years of age at the time the services commence and/or is legally unable to contract for services.

JASONKANDER(2/29/16)

History

• AUTHORITY: sections 600.017(10), 600.086, and 600.090, RSMo 2000. Original rule filed Sept. 11, 2015, effective March 30, 2016. Original authority: 600.017, RSMo 1982; 600.086, RSMo 1976, amended 1982, 1993; and 600.090, RSMo 1976, amended 1982, 1986.

Chapter 6 Outside Practice of Law by Public Defenders

18 CSR 10-6.010 Outside Practice of Law by Public Defenders {#sec-18-csr-10-6.010 omnilex-key=us-mo-regs-official--title-18--18 CSR 10-6.010}

PURPOSE: This rule establishes the limited circumstances in which attorneys employed as public defenders are authorized to practice law outside of their assigned public defender cases in accordance with section 600.021.2, RSMo 2000.

(1) Moving from Private Practice to Public Defense. Attorneys newly hired by the Missouri State Public Defender System (MSPD) who have existing attorney-client obligations that cannot be resolved prior to the commencement of employment, may be authorized to continue providing representation in a limited number of outside matters after their public defender start date, if the director or the director’s designee deems it to be in the best interest of MSPD to bring the attorney on staff prior to the resolution of all outside cases. If continued representation in outside cases is authorized, the following parameters must be met:

(A) The outside practice must not conflict with the attorney’s work on MSPD matters and the attorney is expected to work the minimum number of required hours each pay period on MSPD matters or obtain supervisory approval to take annual or unpaid leave;

(B) Prior to beginning employment, the new hire and the director, or the director’s designee, shall agree, in writing, upon the cases to be retained and the scope of the work that remains to be done on each. The attorney may continue to receive compensation for approved outside work based on a fee agreement entered into prior to employment with MSPD, but the attorney may not expand the scope of representation in any matter beyond that which was reported and approved at the time of hiring;

(C) The attorney shall make every effort, within the rules of professional responsibility, to bring all outside matters to a prompt conclusion and shall provide regular updates on the resolution of such matters to his or her supervisor;

(D) The attorney is not permitted to utilize MSPD time, resources, or staff assistance for non-MSPD cases; and (E) If the attorney is required to appear in court on an outside matter, the attorney should make clear to the court that the attorney is appearing, not as a public defender, but in his or her private capacity as part of winding down the attorney’s previous private practice.

(2) Moving from Contract Attorney to Public Defense. Attorneys newly hired by MSPD who have existing public defender cases taken on contract with MSPD may be authorized or required to continue providing representation in such contract cases past their public defender start date, within the following parameters:

(A) The contract cases in question do not create a conflict for the office the attorney is joining;

(B) Prior to beginning employment, the new hire and the director, or the director’s designee, shall agree, in writing, upon the contract cases to be retained and the scope of the work remaining to be done on each;

(C) The attorney is expected to work the minimum number of required hours each pay period on non-contract MSPD matters or obtain supervisory approval to take annual or unpaid leave. If the attorney has already been compensated by MSPD for providing representation in these contract cases, the attorney shall not also count time spent working on contract cases as public defender time worked, except as set out in subsection (2)(D) below;

(D) In the event a contract case retained by a new hire turns out to be unusually complex for its case type or proceeds to trial or postconviction evidentiary hearing after the attorney’s start date as a public defender, the attorney shall either, at the discretion of the director or the director’s designee: 1) receive the additional compensation generally paid to contract attorneys in such cases; or 2) have the additional time that is required to be spent on the case counted as MSPD work time; and (E) Because the client in these contract cases is a client of MSPD, the attorney may utilize MSPD resources and staff to assist in the case.

(3) Unpaid Outside Representation. Attorneys currently employed by MSPD may seek permission from their immediate supervisors to provide unpaid representation in minor legal matters that will not interfere or conflict with their work on MSPD matters. If permission is granted, the following parameters must be met:

(A) The representation must be unpaid;

(B) Both the attorney’s request and the supervisor’s permission must be in writing and in compliance with guidelines established by the director or the director’s designee;

(C) The attorney is expected to work the minimum number of required hours each pay period on MSPD matters or obtain supervisory approval to take annual or unpaid leave.

Time spent on an outside matter may not be counted as hours worked;

(D) The attorney is not permitted to utilize MSPD resources or staff assistance for non- MSPD cases; and (E) If the outside matter involves a court appearance, the attorney should make clear to the court that the attorney is appearing, not as a public defender, but in a private and unpaid capacity.

JASONKANDER(2/29/16)

History

• AUTHORITY: sections 600.017(10) and 600.021, RSMo 2000. Original rule filed Sept. 11, 2015, effective March 30, 2016. Original authority: 600.017, RSMo 1982 and 600.021, RSMo 1982, amended 1986.