Chapter 120-1 General Provisions

120-1-01 Ohio public defender commission declaration of policy.

The Ohio public defender commission intends to clarify the manner and form under which the commission shall conduct its programs that provide, supervise, and coordinate legal representation pursuant to Chapter 120. of the Revised Code. The commission intends for these provisions to apply to assigned/appointed counsel and county or joint county public defender systems. The commission also intends that the provisions be construed so as to insure the provision of proper and quality legal services for qualified persons.

Effective: 10/09/2009
R.C. 119.032 review dates: 07/21/2009 and 10/08/2014
Promulgated Under: 111.15
Statutory Authority: 120.03
Rule Amplifies: 120.03
Prior Effective Dates: 1/9/78, 1/1/00

120-1-03 Standards of indigency.

The Ohio public defender commission's standards for determining indigency status are promulgated pursuant to sections 120.03 and 120.05 of the Revised Code. Further considerations include State vs. Tymcio (1975), 42 Ohio St.2d. 39 and the Ohio supreme court rules of superintendence. The pivotal issue in determining indigency is not whether the applicant ought to be able to employ counsel but whether the applicant is, in fact, able to do so.

(A) Criteria: When any court is required by law to appoint counsel for any applicant asserting indigent status, the basic criteria for determining indigency status shall include:

(1) Wages and earnings from employment, unemployment compensation, workers compensation, child support pension/social security compensation, Ohio works first/temporary assistance to needy families (TANF) program compensation, disability compensation, and all other similar forms of compensation/governmental assistance comprising household income;

(2) Other financial assets, including but not limited to available cash reserves in savings and checking account, stocks, bonds, certificate of deposit, or other liquid assets; other similar ownership or entitlement to available financial resources with which the applicant might hire legal counsel; but excluding property necessary to maintain employment;

(3) Consideration of the number and age of the applicant's dependents;

(4) Consideration of basic living costs, including housing rent and/or mortgage payments, child support actually paid, child care expenses (for employed applicants only), health insurance, medical/dental expenses, Associated costs of caring for infirm family member, employment transportation costs, cost of fuel, food, telephone, utilities, taxes owed, credit cards/other loan payments and other similar basic costs of living;

(5) Consideration of court-imposed obligations, any bail/bond expenses for the particular offense at issue, and other similar costs associated with the particular legal proceeding.

(6) If the spouse of the applicant is the victim, the spouse's income shall not be included for the determination of indigency.

(B) Marginally indigent. Applicants that are marginally indigent must be appointed counsel. One who is marginally indigent has a total monthly gross income that is less than 187.5 per cent of the current federally established poverty levels, pursuant to the "Federal Poverty Guidelines" published in the Federal Register by the U.S. department of health and human services. Those who are marginally indigent shall be subject to recoupment, contribution, or partial payment program as set forth in section 120.03 of the Revised Code.

(C) Presumptive eligibility. Any applicant for indigency status lacking other substantial liquid assets, spousal income or other sources of income is presumed indigent and thus entitled to the appointment of counsel under any of the following circumstances:

(1) The applicant's total monthly income is one hundred twenty-five per cent or less of the current federally established poverty levels, pursuant to the "Federal Poverty Guidelines" published in the Federal Register by the U.S. department of health and human services. Those whose total monthly income is one hundred twenty-five per cent or less of the current federally established poverty levels shall not be subject to recoupment, contribution, or partial payment program. These guidelines are available, on request, from the Ohio public defender commission;

(2) The applicant currently receives public assistance and thus has been deemed eligible for federal supplemental security income (SSI), medicaid, aid to families with dependent children (AFDC), general assistance, food stamps, refugee settlement benefits, poverty-related veterans' benefits, or other similar poverty-based governmental financial assistance;

(3) Any applicant who at the time of application has been committed to a public mental health facility;

(4) Any applicant who at the time of application is incarcerated in a state penitentiary;

(5) Juveniles are presumed indigent. In determining the eligibility of a child for court-appointed counsel in juvenile court, only the juvenile's income shall be considered when determining if counsel should be appointed.

(a) A juvenile applicant's parent should complete the recoupment component of the affidavit, as the juvenile's parents may be subject to recoupment, contribution, or partial payment program as set forth in section 120.03 of the Revised Code and rule 120-1-05 of the Administrative Code. However, a parent's refusal to complete the recoupment component of the affidavit of indigency shall in no way impede the appointment of counsel for the juvenile.

(b) If a parent is the victim or the relative of a victim the parent is not required to include their income for recoupment, contribution, or partial payment purposes.

(D) Presumptive ineligibility. Any applicant for indigency status can be presumed not entitled to the appointment of counsel under any of the following circumstances:

(1) The applicant's total monthly income, exceeds 187.5 per cent of the federal poverty levels, pursuant to the "Federal Poverty Guidelines" published in the Federal Register by the U.S. department of health and human services.

(2) The applicant possesses monies and/or liquid assets that exceed one thousand dollars, and the applicant is accused of a misdemeanor violation and no felony.

(3) The applicant possesses monies and/or liquid assets that exceed five thousand dollars, and the applicant is accused of any felony violation.

(4) A liquid asset is cash or an asset that is payable on demand. Available credit to the applicant shall not be considered a liquid asset.

(E) The ability to contribute a portion of the cost of quality legal representation shall not preclude eligibility for assigned/appointed counsel. If an applicant who is not indigent is able to show that they have tried to employ counsel, but is still unable to employ counsel, then the court must appoint counsel in accordance with State vs. Tymcio (1975), 42 Ohio St. 2d 39. Those who qualify under Tymcio, shall be subject to recoupment, contribution, or partial payment program as set forth in section 120.03 of the Revised Code and rule 120-1-05 of the Administrative Code.

(F) Redetermination. A preliminary determination of ineligibility for legal representation shall not foreclose a redetermination of eligibility when, at any subsequent stage of a proceeding, new information or changes in circumstances affecting the applicant's financial status becomes known.

(G) Confidentiality. Court rules, regulations, and/or procedures concerning the determination of initial eligibility and/or continued eligibility shall not require assigned/appointed counsel and/or public defenders to make any disclosures concerning the applicant's financial status beyond those disclosures necessary to the court's determination of indigency status, pursuant to section 120.38 of the Revised Code.

(H) Other prohibitions. The process of applying for publicly provided counsel shall not serve to deter any applicant from exercising any constitutional, statutory, or procedural rights, including, but not limited to, the following:

(1) Stringent application of financial eligibility standards shall not cause an applicant to waive representation of counsel rather than incur the expense of retained counsel.

(2) The applicant's exercise of the right to counsel shall not be conditioned upon the waiver of any other constitutional, statutory, or procedural rights.

(I) Requests for specific appointed counsel. When a defendant makes a request for a specific appointed counsel pursuant to division (A) of section 120.33 of the Revised Code, such request shall be considered and decided by the court.

(J) When an applicant who is not indigent is appointed counsel, the county may recoup moneys for the services provided in accordance with section 120.03 of the Revised Code and rule 120-1-05 of the Administrative Code.

(K) Financial disclosure form. A form requesting relevant information from the applicant shall be completed for each applicant prior to the appointment of counsel or as soon thereafter as practicable. Each county shall use the current application for court-appointed representation form as is available from the office of the Ohio public defender or any similar form that is first approved by the Ohio public defender.

Replaces: 120-1-03

Effective: 10/09/2009
R.C. 119.032 review dates: 10/08/2014
Promulgated Under: 111.15
Statutory Authority: 120.03(B)
Rule Amplifies: 120.03(B)(1)
Prior Effective Dates: 1/9/78, 9/27/91, 1/1/96, 1/1/00

120-1-04 Hiring of additional attorney.

Subject to prior approval of the court, a second attorney should be appointed or employed whenever necessary to protect the rights of the client, including, but not limited to the following:

(A) When dealing with matters involving highly technical areas requiring special expertise;

(B) When needed to depose a witness not located in the immediate area;

(C) When necessary to resolve conflicts of interest;

(D) When the accused has been charged with a death penalty specification;

(E) When the assistance of additional counsel is necessary to provide quality defense.

Effective: 10/09/2009
R.C. 119.032 review dates: 07/21/2009 and 10/08/2014
Promulgated Under: 111.15
Statutory Authority: 120.03
Rule Amplifies: 120.03
Prior Effective Dates: 1/9/78, 1/1/00

120-1-05 Recoupment, contribution, partial payment, and marginally indigent programs.

Any such program should not jeopardize the quality of defense provided or act to deny representation to qualified defendants. Examples of such programs will be available through the office of the Ohio public defender.

(A) Those counties that appoint counsel for persons with incomes between one hundred twenty-five per cent and 187.5 per cent or more of the current poverty threshold shall establish a reimbursement, recoupment, contribution, or partial payment program that includes a fee for the cost of income verification. All programs developed to seek reimbursement for the cost of assigned/appointed counsel from the defendant shall be subject to review and approval by the Ohio public defender.

(B) Courts may order non-indigent applicants to pay for the necessary costs of representation. Courts may also order non-indigent parents to pay for the necessary costs of representation of a juvenile applicant.

(C) In no case shall such a program require or include direct payment(s) from the applicant to appointed counsel. No payments, compensation, or in-kind services shall be required from an applicant or client whose annual income is equal or less than one hundred twenty-five per cent of the federal poverty guidelines.

(D) Verification procedures. All counties shall develop and use an income verification procedure that seeks to monitor and test the integrity of applications for appointed counsel through random or periodic auditing as prescribed by the Ohio public defender standards and guidelines for reimbursement.

Replaces: 120-1-05

Effective: 10/09/2009
R.C. 119.032 review dates: 10/08/2014
Promulgated Under: 111.15
Statutory Authority: 120.03(B)
Rule Amplifies: 120.05(B)
Prior Effective Dates: 1/9/78, 9/27/91, 1/1/00

120-1-06 Facilities for a county or joint county public defender office.

The supporting staff, facilities, equipment, supplies, and other requirements needed to maintain and operate an office of a county or joint county public defender shall be sufficient to allow quality representation and shall be substantially equivalent to that provided for the county prosecutor's office. In applying this rule, the following criteria shall govern:

(A) The salaries for public defender attorneys shall approximate and be in parity with the compensation received by a prosecutor with the same number of years in practice and experience.

(B) The budget of any county public defender shall include:

(1) Adequate office space, file storage space and other facilities as prescribed by the Ohio public defender standards and guidelines for reimbursement;

(2) Adequate and reasonably accessible research capabilities that meet the duties of the office;

(3) Adequate computer, tape-recording, photographic, and other investigative equipment of a sufficient quantity, quality, and versatility to permit preservation of evidence;

(4) Funds available for the confidential employment of experts and specialists, such as psychiatrists, pathologists, and other scientific experts in all cases where the same may be of assistance to the defense;

(5) Supportive services including secretarial, investigative, and other defense litigation support services, including not only support services needed for quality defense at trial, but also those required for quality participation in every phase of the process, including determinations on pretrial release, and eligibility for diversion; competency to stand trial; mitigation advocacy at sentencing and other dispositions following conviction, appeals, and post-conviction relief.

(C) The office of the county public defender or joint county public defender shall be located with consideration to the convenience to clients and access to the courts and other necessary services.

(D) Each attorney shall have adequate office space to assure privacy in consultation with clients and efficiency in operations.

Effective: 10/09/2009
R.C. 119.032 review dates: 07/21/2009 and 10/08/2014
Promulgated Under: 111.15
Statutory Authority: 120.03
Rule Amplifies: 120.03
Prior Effective Dates: 1/9/78, 1/1/00

120-1-07 Workload standards.

(A) Workloads. Neither the public defender office, public defender attorney nor any court-appointed counsel representing indigent clients may accept a workload which, by reason of its excessive size and/or complexity, threatens to deny due process of law or constitutional rights to any client, places the office or attorney in imminent danger of violating the "Rules of Professional Conduct", or threatens quality representation of the client.

(1) A case is defined as a single charge or set of charges arising from one incident and concerning a defendant (or other client) in one court in the same proceeding.

(2) Factors to be considered in determining when workload threatens to deny due process of law or constitutional rights to any client, places the office or attorney in imminent danger of violating the "Rules of Professional Conduct," or threatens quality representation of the client include:

(a) If the number of cases the attorney is handling exceeds the number prescribed by the Ohio public defender standards and guidelines for reimbursement, workloads must be reduced;

(b) Complexity of cases - If the attorney's workload comprises primarily high degree felony charges or difficult or novel legal issues, workloads should be reduced;

(c) The attorney's experience and ability - including the number of years that the attorney has practiced law; the proportion of time the attorney has dedicated to criminal defense; the types of cases, including degree charge and difficulty of cases, which the attorney has handled in the past; and the attorney's ability to satisfy or exceed performance standards established by the Ohio public defender commission. If the attorney's experience and ability are limited, workloads should be reduced;

(d) The attorney's nonrepresentational duties - including but not limited to the time devoted to clerical work; research and writing of briefs, memoranda, motions, and letters; and management or supervisory duties. As nonrepresentational duties increase, workloads should be reduced;

(e) Information technology - If the attorney lacks an individual computer readily at his/her disposal, desktop access to online research tools, or desktop access to online court dockets and case file information, workloads should be reduced;

(f) Availability of support services - If the attorney does not have support staff as listed in paragraph (B) of this rule, workloads should be reduced;

(g) Open file discovery - If there is not prompt access or no access to the witness statements and police reports, workloads should be reduced;

(h) Court scheduling and access to diversion - If a jurisdiction's case scheduling or other courthouse procedures reduce the efficient use of attorney time, or if the jurisdiction provides limited access to diversion programs, workloads should be reduced;

(i) Travel - If the provision of quality representation regularly requires significant travel, workloads should be reduced; and

(j) Other factors relevant to the attorney's workload.

(3) No attorney shall accept any appointment which exceeds or jeopardizes his or her ability to render effective and quality representation to each individual client, or if that representation will cause the attorney to violate the "Rules of Professional Conduct."

(4) Excessive workload. Whenever by reason of excessive workload the public defender or appointed attorney determines that the assumption of additional cases or continued representation in previously accepted cases by his or her office has resulted in or will lead to inadequate representation of any client, the attorney shall:

(a) Declare such fact to the court on the record; and

(b) Request that the court allow the attorney's withdrawal as counsel from assigned cases, or order that the attorney temporarily refrain from accepting new cases.

(B) Supporting staff. The ratio of support staff including legal secretary/administrative assistants, paralegals, investigators, mitigation specialists and social workers to attorneys shall be no less than the numbers prescribed by the Ohio public defender standards and guidelines for reimbursement. Alternatively the office must have adequate funds in the office budget to hire such support staff on an as needed basis in order to comply with the Ohio public defender standards and guidelines for reimbursement.

Replaces: 120-1-07

Effective: 10/09/2009
R.C. 119.032 review dates: 10/08/2014
Promulgated Under: 111.15
Statutory Authority: 120.03
Rule Amplifies: 120.03
Prior Effective Dates: 1/9/78, 1/1/00

120-1-09 Contracts with municipal corporations or villages.

County commissioners, public defenders, county public defender commissions, and joint county public defender commissions may contract with a municipal corporation or villages for the legal representation of indigent persons charged with violations of the ordinances of the municipal corporation or villages.

(A) All such contracts with municipal corporations pertaining to legal representation of indigent persons charged with violations of municipal corporation or villages ordinances shall have approval of the Ohio public defender commission Public Defender Commission.

(B) All such contracts should be for one calendar year, and may include annual renewal clauses. If a contract is renewed, or is a multiple year contract an annual resolution of acceptance by both parties and an annual appropriation of funding from the municipal corporation or village shall be filed with the Ohio public defender before the contract can qualify for reimbursement.

(C) Reimbursement by the municipal corporation or village for representation of such indigent persons may be by a contractual amount or a fee schedule, however, in either event such reimbursement shall not exceed the fee schedule in effect and adopted by the county commissioners of the county wherein the municipal corporation or village is located.

(D) All contracts with municipal corporations or villages shall conform with the standards of indigency under rule 120-1-03 of the Administrative Code and other rules and standards established by the office of the Ohio public defender.

Effective: 10/09/2009
R.C. 119.032 review dates: 07/21/2009 and 10/08/2014
Promulgated Under: 111.15
Statutory Authority: 120.03
Rule Amplifies: 120.03
Prior Effective Dates: 1/9/78, 1/1/00

120-1-10 Attorney qualifications and training.

(A) Assignment systems should be independent from individual influence or choice by any member of the judiciary, prosecution, or other elected official. Assignments should be distributed as widely as possible among members of the bar on a rotary system designed to pair the defendant's level of offense with attorneys who meet the qualifications for assignment.

(B) A county shall receive reimbursement for defense costs from the state public defender only when attorneys representing indigent clients meet the qualification and training standards approved by the Ohio public defender commission, including the following minimum qualifications:

(1) Where the juvenile or adult defendant is charged with aggravated murder with death penalty specifications, or has been convicted and sentenced to death, any attorney appointed for trial, appellate, post-conviction or habeas corpus representation must meet the qualifications set forth in Rule 20 of the Ohio supreme court rules of superintendence and must appear on the list of attorneys qualified to accept appointments in capital cases promulgated by the Rule 20 committee, or have a waiver of pre-qualification issued by the Rule 20 committee.

(2) Where the defendant is charged with murder or aggravated murder without specifications, counsel shall possess:

(a) At least three years of experience as an attorney, and prior jury trial experience as trial counsel in two first degree felony or aggravated felony trials, or

(b) At least three years of experience as an attorney, and prior experience as trial counsel in ten or more jury trials, at least one of which was for a felony of the first degree.

(3) Where the defendant is charged with a felony of the first degree or second degree, other than murder or aggravated murder, counsel shall possess:

(a) At least two years of experience as an attorney, and

(b) Prior experience as trial counsel in two or more first degree, second degree, or third degree felony trials, at least one of which was a jury trial.

(4) Where the defendant is charged with a felony of the third degree, counsel shall possess:

(a) At least one year of experience as an attorney, and

(b) Prior experience as trial counsel in at least one fourth degree or fifth degree felony trial, at least one of which was a jury trial.

(5) Where the defendant is charged with a felony of the fourth or fifth degree, counsel shall possess:

(a) Prior experience as trial counsel or co-counsel in at least one jury trial;

(b) Prior completion of a training program on criminal practice and procedure which is certified for continuing legal education credit by the Ohio supreme court commission on continuing legal education and approved for purposes of this section by the Ohio public defender; or

(c) Prior successful completion of a clinical legal education program focusing on criminal defense.

(6) Where the defendant is charged with a misdemeanor, counsel shall possess:

(a) Prior completion of a training program on criminal practice and procedure which is certified for continuing legal education credit by the Ohio supreme court commission on continuing legal education and approved for purposes of this section by the Ohio public defender; or

(b) Prior successful completion of a clinical education program focusing on criminal defense.

(7) Where the defendant is a juvenile charged with murder or aggravated murder without specifications, counsel shall possess:

(a) At least three years of experience as an attorney, and prior jury trial experience as trial counsel in two first degree felony or aggravated felony trials, or

(b) At least three years of experience as an attorney, and prior experience as trial counsel in ten or more jury trials. at least one of which was for a felony of the first degree.

(8) Where the defendant is a juvenile charged with a felony where a petition to transfer to common pleas court or a motion for bind over proceeding has been filed, counsel shall possess prior experience as trial counsel in at least two criminal jury trials or have co-counsel who has done so.

(9) Where the defendant is a juvenile charged with a crime and the prosecutor has initiated a serious youth offender proceeding, counsel shall possess:

(a) Prior experience as trial counsel in at least two criminal jury trials; or

(b) Prior experience as trial counsel in at least two serious youth offender jury trials; or

(c) Have co-counsel who meet the above referenced qualifications.

(C) Prior to the appointment or at the time of appointment, the court may submit counsel's qualification information to the Ohio public defender. This process will allow the court to determine whether counsel qualifies under this rule of the Administrative Code and is in compliance with the Ohio public defender standards and guidelines for reimbursement prior to the submission of a bill.

(D) The respective courts and county and joint county public defender commissions shall be free to adopt local rules requiring qualifications in addition to the minimum standards established by this rule.

Effective: 03/23/2010
R.C. 119.032 review dates: 12/04/2009 and 03/23/2015
Promulgated Under: 111.15
Statutory Authority: R.C. 120.03(B) , R.C. 120.04(B)
Rule Amplifies: RC 120.03(B) , R.C. 120.18(B) , R.C. 120.28(B) , R.C. 120.33(A)(4)
Prior Effective Dates: 9/10/79, 11/6/84, 9/27/91, 1/1/00, 10/9/09

120-1-11 Time limits for reimbursement of county expenditures for assigned or appointed counsel and public defender offices.

Requests for state reimbursement under the Ohio indigent defense program by county boards of county commissioners to the office of the Ohio public defender office shall be submitted by the following deadlines:

(A) Attorney expenditures shall be submitted to the Ohio public defender office within ninety days of the end of the calendar month in which the particular case at issue was terminated or disposed of.

(B) If an attorney submits a periodic bill, expenditures shall be submitted to the Ohio public defender office within ninety days of the end of the calendar month of the last court appearance.

(C) Case termination is defined as the last date of appearance in court or the date of the filing of the termination entry, whichever is latest.

(D) County public defender office operating expenditures and caseload reports shall be submitted to the office of the Ohio public defender within sixty days of the end of the calendar month in which the expenditures were incurred or the cases were closed.

(E) The office of the Ohio public defender reserves the right to deny reimbursement for failure to meet the above deadlines.

Replaces: 120-1-11

Effective: 10/09/2009
R.C. 119.032 review dates: 10/08/2014
Promulgated Under: 111.15
Statutory Authority: 120.03
Rule Amplifies: 120.03(B) , 120.18(A) , 120.28(A) , 120.33(A)(4)
Prior Effective Dates: 5/8/81, 1/1/00

120-1-12 Standards governing contracts with non-profit organizations or the Ohio public defender for the provision of indigent representation.

(A) Any Ohio county public defender commission, or joint county public defender commission, with the approval of the board of county commissioners, may contract with a non-profit organization or the Ohio public defender for indigent legal representation. Any county that desires to receive state funding reimbursement for such a contract must first obtain approval to enter the contract from the Ohio public defender commission. All such contracts that are submitted to the Ohio public defender commission for approval must be drafted in accordance with the provisions of section 120.14 or 120.24 of the Revised Code.

(B) Any contract with a non-profit organization or with the Ohio public defender that is submitted to the Ohio public defender commission for approval must have on record the court order and the county commission's resolution that established the county or joint county public defender commission and the resolution that appointed the members to that commission.

(C) The primary purpose of the non-profit organization must be the provision of legal representation to indigent persons. The articles of incorporation of the contractor as filed with the Ohio secretary of state must be on file with the Ohio public defender. The contract may then be submitted to the Ohio public defender commission for approval.

(D) The county public defender commission or joint county public defender commission shall obtain the approval of the county board of commissioners for the entire amount of a contract with a non-profit organization or the Ohio public defender prior to signing the contract. The board of county commissioners shall not interfere with the selection of the non-profit organization. All contracts submitted to the Ohio public defender commission for approval shall contain a resolution of the board of county commissioners that sufficient funds have been or will be appropriated and will be available to meet the contracting authority's obligations under the contract.

(E) Elements of a contract for indigent defense services must include:

(1) Parties. The contract shall identify the parties to the contract, including the county public defender commission or joint county public defender commission, and the non-profit organization or the Ohio public defender and any other public or private person, agency, or organization which is party to the contract.

(2) Scope of the contract. The contract shall specify the courts, categories and percentages of indigent defense cases in which the non-profit organization or Ohio public defender is to provide services. The contract shall also specify any categories for which the non-profit organization or the Ohio public defender is not to provide services.

(3) Determination of eligibility. The contract shall specify the procedure by which a defendant's financial eligibility is to be determined and contain a standard of indigency incorporating by reference rule 120-1-03 of the Administrative Code.

(4) Term of the contract. Contracts shall be for a term of one year. The contract shall specify that the non-profit organization or the Ohio public defender has the responsibility to complete any and all cases once representation is commenced under the terms of the contract. Representation commenced in the trial court shall be continued through all trial court proceedings, including capias and probation violation proceedings. Representation commenced in or taken to an appeals court shall continue until the appeals process is terminated. The contract should specify that the non-profit organization or the Ohio public defender or attorney can withdraw from a case due to a conflict of interest recognized by a court; due to a finding of the client's financial ineligibility for the legal services; or due to the attorney's excessive workload as determined pursuant to rule 120-1-07 of the Administrative Code.

(5) Attorney staff. The contract may require the non-profit organization to use full-time or part-time attorneys. The contract shall require that attorneys meet the qualification and training requirements established in rule 120-1-10 of the Administrative Code. If the contract is for the use of part-time attorneys, it shall contain provisions to ensure that the part-time attorneys devote the time necessary to provide quality representation to the indigent clients and comply with the Ohio public defender performance standards. Contracts for attorneys shall comply with rule 120-1-07 of the Administrative Code in order to provide quality representation to clients.

(6) Support staff, investigators, and forensic experts. The contract may provide for the employment of a support staff or secretaries and non-legal personnel for the office. The contract should also specify that adequate funds will be provided for investigators, social workers, mental health professionals, and other forensic experts necessary to provide quality representation. These expert expenses may also be obtained on motion to the court. No contract clause should interfere with the contractor's selection, supervision, and direction of these persons by the non-profit organization.

(7) Compensation. The contract shall provide that the non-profit organization compensate its staff employees, subcontractors and retained forensic experts at rates commensurate with their training, experience and responsibilities, and compensation paid to persons doing similar work in public agencies in the county.

(8) Extraordinary compensation. The contract shall provide for extraordinary compensation in cases that require an extraordinary amount of time and preparation, including but not limited to cases in which capital punishment is possible. Services that require compensation in excess of the normal rate shall be defined in the contract.

(9) Compensation of additional attorneys and conflicts of interest. The contract shall contain provision for the county to pay assigned counsel where conflicts of interest arise and the non-profit organization is unable to provide representation. The contract may contain provisions respecting other extraordinary circumstances creating an inability to provide representation and necessitating compensation for additional attorneys, such as those set out in rule 120-1-07 of the Administrative Code.

(10) Financial reports. The contract shall provide that the non-profit organization retain financial records, submit financial reports, and submit to a financial audit at least annually and report these findings to the county public defender commission or joint county public defender commission. Copies of the annual audit shall be forwarded to the Ohio public defender commission as part of the annual report submitted pursuant to sections 120.14 and 120.24 of the Revised Code.

(11) Standards of representation. The contract shall require that the non-profit organization provide legal services to all clients in a professional, skilled manner consistent with Chapter 120. of the Revised Code, agency 120 of the Administrative Code, any other published rules of the Ohio public defender commission, the Ohio public defender standards and guidelines, the canons of ethics for attorneys in Ohio, and case law and applicable court rules defining the duties of counsel and the rights of defendants in criminal cases. The non-profit organization shall provide that counsel under contract shall be available to eligible defendants at their request or the request of someone acting on their behalf at arrest, formal charging, or indictment. The contractor shall insure that attorneys provided by the contract shall be accessible to applicants in regard to criminal or delinquency matters before formal court appointment.

(12) Insurance. The contract shall require that the non-profit organization provide malpractice insurance for attorneys representing indigent clients under terms of the contract. No contract shall provide that the non-profit organization holds the government or county public defender commission or joint county public defender commission harmless for the attorney's representation of the clients.

(13) Management information system: The contract shall provide that the non-profit organization maintain a case reporting and management information system from which data shall be available and provided to the county public defender commission or joint county public defender commission upon request. The county public defender commission or joint county public defender commission shall report the caseload data required by the Ohio public defender when submitting its monthly request for reimbursement. Any such system shall be maintained independently from client files so as to disclose no privileged information. The case reporting and management information system shall be used to provide the non-profit organization, county public defender commission or joint county public defender commission, and the Ohio public defender commission with caseload information sufficient to insure compliance with the Ohio public defender commission's rules, Chapter 120. of the Revised Code, and the Ohio public defender standards and guidelines.

(F) Awarding the contract.

The county public defender commission or joint county public defender commission shall award a contract for indigent criminal cases only when it appears that the non-profit organization adequately addresses the issues stated in this rule, Chapter 120. of the Revised Code, the rules of the Ohio public defender commission, and the Ohio public defender standards. Under no circumstances should a contract be awarded based on cost alone. The county public defender commission or joint county public defender commission shall determine when the proposed budget of the non-profit organization will provide the capability of complying with this rule. The Ohio public defender commission shall not approve any contract that appears to have been awarded or based solely or largely on cost effectiveness criteria as opposed to quality of representation to individual clients.

(G) Approval by the Ohio public defender commission.

The Ohio public defender commission shall approve a contract that conforms to all standard of this section and complies with all applicable sections of Chapter 120. of the Revised Code, the rules of the Ohio public defender commission, and any other Ohio public defender standards and guidelines.

(H) Contracts with law schools, legal aid societies, and non-profit organizations.

Any law school, legal aid society, or non-profit organization that enters into a contract with the Ohio public defender to provide counsel shall be subject to the policies and procedures established by the Ohio public defender commission and the Ohio supreme court rules for the government of the bar of Ohio. The standards employed by the Ohio public defender in determining eligibility for representation under rule 120-1-3 of the Administrative Code shall apply to these organizations, and all such contracts are subject to the prior approval and continued supervision of the Ohio public defender commission.

Effective: 10/09/2009
R.C. 119.032 review dates: 07/21/2009 and 10/08/2014
Promulgated Under: 111.15
Statutory Authority: 120.03(B)
Rule Amplifies: 120.03(B) , 120.14 , 120.24
Prior Effective Dates: 9/27/91, 1/1/00

120-1-13 Reimbursement to the counties in capital cases.

The Ohio public defender, pursuant to sections 120.34 and 120.35 of the Revised Code, shall review each request for reimbursement to a county in an indigent capital case at the trial, appellate, and/or post-conviction levels, to ensure that each of the following criteria governing the appointment of counsel as prescribed in the Ohio public defender standards and guidelines for reimbursement are met:

(A) Lead counsel and co-counsel shall be appointed from the lists maintained by the Ohio supreme court, pursuant to Rule 20 of the Rules of Superintendence or have obtained a waiver of qualification issued by the Rule 20 committee. Such Rule 20 waiver of qualification shall accompany the reimbursement request.

(B) All other provisions of Rule 20 shall be followed by the appointing court, board of county commissioners, and by attorneys appointed in the case for which reimbursement is sought.

(C) If the criteria in this rule are not met, the Ohio public defender commission shall deny reimbursement to the county for all of the defender costs associated with that indigent capital case.

Effective: 10/09/2009
R.C. 119.032 review dates: 07/21/2009 and 10/08/2014
Promulgated Under: 111.15
Statutory Authority: 120.03(B)
Rule Amplifies: 120.03(B) , 120.18(A) , 120.28(A) , 120.33(A) , 120.34 , 120.35 , 2941.51
Prior Effective Dates: 10/6/88, 1/1/00

120-1-15 Adequate fee schedule for assigned/appointed counsel and public defender salaries.

(A) In establishing a fee schedule to be paid appointed counsel in indigent cases eligible for reimbursement pursuant to section 120.33 of the Revised Code, the county commissioners and county bar association shall establish a schedule that is comparable to the fees paid to retained counsel in the same type of cases. No county will be entitled to reimbursement from the Ohio public defender if it can be demonstrated that its fee schedule is inadequate for an appointed attorney to cover the costs of overhead while working on an appointed case and to generate a reasonable income for work performed.

(B) Salaries paid to public defenders should be equivalent to salaries paid to similar positions within the justice system.

Effective: 10/09/2009
R.C. 119.032 review dates: 07/21/2009 and 10/08/2014
Promulgated Under: 111.15
Statutory Authority: 120.03(B)
Rule Amplifies: 120.03 , 120.33(A)(3)
Prior Effective Dates: 9/27/91, 1/1/00

120-1-16 Appointed counsel accepting retainers in appointed cases.

Should any applicant first found indigent and thus entitled to the appointment of counsel later become able to obtain sufficient funds to retain private counsel, no public defender attorney or any previously appointed counsel shall accept any money for continued representation of that client on the same assigned case. The attorney shall seek to withdraw from the representation in a manner consistent with the Ohio Rules of Professional Conduct.

Replaces: 120-1-16

Effective: 10/09/2009
R.C. 119.032 review dates: 10/08/2014
Promulgated Under: 111.15
Statutory Authority: 120.03(B)
Rule Amplifies: 120.03(B) , 120.04(B)(3)
Prior Effective Dates: 9/27/91, 1/1/00

120-1-17 Reimbursement for experts or transcripts.

The county may seek reimbursement for the costs of experts, interpreters or transcripts requested by the defense and when the expert is answerable only to the defense counsel. The Ohio public defender shall only reimburse the county for experts, interpreters or transcripts when the court will direct the county auditor to pay the experts, interpreters or transcripts directly rather than allowing defense counsel to submit this invoice as part of the assigned counsel fee certification. Reimbursement will not be made if these costs are presented through the attorney's bill for services.

Effective: 10/09/2009
R.C. 119.032 review dates: 10/08/2014
Promulgated Under: 111.15
Statutory Authority: 120.03(B)
Rule Amplifies: 120.03(B) , 120.04(B)(3) , 120.18(A) , 120.28(A) , 120.33(A)(4)