Chapter 120-1 General Provisions

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

The Ohio public defender commission intends to define 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 to county and joint county public defender systems. The commission further intends that these provisions be construed so as to ensure the provision of effective and meaningful legal services to qualified persons.

Effective: 12/1/2015
Five Year Review (FYR) Dates: 06/22/2015 and 12/01/2020
Promulgated Under: 111.15
Statutory Authority: 120.03
Rule Amplifies: 120.03
Prior Effective Dates: 1/9/78, 1/1/00, 10/9/09

120-1-03 Standards of indigence.

(A) General guidelines. The pivotal issue in determining indigence is not whether the applicant ought to be able to employ qualified counsel, but whether the applicant is, in fact, able to do so.

(1) An applicant whose gross income is 187.5 per cent or less of federally established poverty levels is presumed indigent and entitled to appointed counsel.

(2) An applicant whose gross income exceeds 187.5 per cent of the federal poverty level may qualify for appointed counsel if, after deducting basic living expenses, the applicant's net income is at or below one hundred twenty-five per cent of the federal poverty level or the applicant is financially unable to hire qualified counsel.

(3) When an applicant whose gross income exceeds one hundred twenty-five per cent of the federal poverty level is appointed counsel, the county may recoup some money for the services provided, in accordance with section 120.03 of the Revised Code and rule 120-1-05 of the Administrative Code.

(B) Presumptive eligibility. An applicant is presumed indigent and thus entitled to the appointment of counsel at state expense under the following circumstances:

(1) The applicant currently receives poverty-based public assistance such as federal supplemental security income, ohio works first, temporary assistance to needy families, medicaid, aid to families with dependent children, supplemental nutrition assistance program, refugee cash assistance, refugee medical assistance, poverty-related veterans' benefits, or other poverty-based governmental assistance.

(2) The applicant, at the time of application, has been committed to a public mental health facility.

(3) The applicant, at the time of application, is incarcerated in a state penitentiary.

(4) The applicant is a child as defined in division (B)(6) of section 2151.011 or division (C) of section 2152.02 of the Revised Code. In determining the eligibility of a child for appointed counsel, the income of the child's parent, guardian, or custodian shall not be considered.

(C) Income and expenses. When determining an applicant's indigence, the following shall be considered:

(1) Wages and earnings from employment, unemployment compensation, workers compensation, child support, pension and social security compensation, disability compensation, and all other forms of compensation and governmental assistance. Only the income of the applicant may be considered, unless other persons in the applicant's household have a legal duty to support the applicant.

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

(3) The number and ages of persons the applicant has a legal duty to support.

(4) Basic living expenses, including housing rent and/or mortgage payments, child support actually paid, child care, health insurance premiums, medical and dental expenses, costs of caring for an infirm family member, employment transportation costs, costs of fuel, food, telephone, utilities, taxes withheld, credit card and other loan payments, and other similar basic costs of living.

(5) Court-imposed obligations, including but not limited to: expected court costs, fines, restitution, and recoupment; application, jail, supervision, electronic monitoring, and other fees; and other similar costs associated with the legal proceeding at issue. An applicant's posting of bail or bond does not exclude the applicant from eligibility for appointed counsel.

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

(D) Applicants with liquid assets. For purposes of this rule, a liquid asset is defined as cash or an asset that is payable on demand. Available credit to the applicant shall not be considered a liquid asset. An applicant may not be indigent if the applicant possesses monies and/or liquid assets that exceed:

(1) Two thousand dollars if the most serious charge against the applicant is a misdemeanor;

(2) Five thousand dollars if the most serious charge against the applicant is a felony of the fourth or fifth degree;

(3) Six thousand dollars if the most serious charge against the applicant is a felony of the third degree;

(4) Eight thousand dollars if the most serious charge against the applicant is a felony of the first or second degree.

(E) Applicants exceeding income levels or with liquid assets. An applicant whose gross income exceeds 187.5 per cent of the federal poverty level, whose net income exceeds one hundred twenty-five per cent of the federal poverty level, or whose liquid assets exceed the amounts in the subsection above is not precluded from eligibility for appointed counsel.

(1) The number, complexity, and seriousness of charges the applicant faces must be considered when deciding whether an applicant has sufficient funds to hire qualified counsel.

(2) If an applicant who is not indigent has tried but is unable to employ qualified counsel, counsel must be appointed.

(3) A defendant who retains counsel but does not have sufficient funds to pay for experts, transcripts, and other related expenses should be declared indigent for those purposes.

(F) Redetermination. A preliminary determination of indigence status shall not foreclose a redetermination of eligibility if new information becomes known or if changes in circumstances affect the applicant's financial status.

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

(H) Applicant's rights. The process of applying for appointed counsel shall in no way impede an applicant's constitutional, statutory, or procedural rights. Financial eligibility standards shall be liberally interpreted to ensure an applicant's right to counsel and to avoid an applicant's waiver of that right rather than incur the expense of retained counsel.

(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) 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. If an applicant is unavailable or unable to complete the form, the court may declare indigence. Each county shall use the financial disclosure form prescribed by the state public defender, unless the county has received a waiver from the state public defender. In order to verify eligibility, individual applicants may be asked to provide additional information regarding income and expenses.

Replaces: 120-1-03

Effective: 12/1/2015
Five Year Review (FYR) Dates: 12/01/2020
Promulgated Under: 111.15
Statutory Authority: 120.03
Rule Amplifies: 120.03(B)(1)
Prior Effective Dates: 1/9/78, 9/27/91, 1/1/96, 1/1/00, 10/9/09

120-1-04 Appointment of additional attorney.

(A) In all capital cases, two attorneys certified by the supreme court of Ohio's committee on the appointment of counsel for indigent defendants in capital cases, as qualified under Rule of Superintendence 20, must be appointed.

(B) Two attorneys may be appointed in aggravated murder cases without capital specifications. An entry by the court for the extraordinary appointment of additional counsel is not needed if the appointment of two attorneys is provided for in the county's resolution for appointed counsel rates.

(C) In all other cases, a second attorney should be appointed as co-counsel whenever necessary to protect the rights of a defendant. An entry by the court for the extraordinary appointment of additional counsel is required to qualify for reimbursement. Situations necessitating the appointment of additional counsel include, but are not limited to:

(1) Cases that are unusually complex, involve numerous charges or co-defendants, include a large volume of discovery or evidence, or involve technical issues that require special expertise.

(2) When an additional attorney is needed to depose a witness not located in the immediate area.

(3) In a juvenile case when both an attorney and an attorney guardian ad litem are needed to fully represent and protect the child.

(4) In a juvenile bindover or serious youthful offender case, if two attorneys are needed to meet the qualification requirements of rule 120-1-10 of the Administrative Code.

(5) Additional counsel is necessary to provide a quality and effective defense.

(D) Specialty courts, specialty dockets, and other diversion programs can often benefit from the appointment of one attorney to represent the defendant on the criminal or delinquency charge, and the appointment of a second attorney as part of the defendant's participation in the diversion program. Specialty docket representation must comply with the state public defender's requirements of representation in the specialty court and in any violation proceeding, in order to qualify for reimbursement.

Replaces: 120-1-04

Effective: 12/1/2015
Five Year Review (FYR) Dates: 12/01/2020
Promulgated Under: 111.15
Statutory Authority: 120.03
Rule Amplifies: 120.03
Prior Effective Dates: 1/9/78, 1/1/00, 10/9/09

120-1-05 Reimbursement, recoupment, contribution, and partial payment programs.

Subject to review and approval by the Ohio public defender, each county shall establish a reimbursement, recoupment, contribution, or partial payment program to recover a portion of the expense of appointing counsel to a person whose gross income exceeds one hundred twenty-five per cent of the federal poverty level or to a child whose parents' gross income exceeds one hundred twenty-five per cent of the federal poverty level. Assessments for such programs shall be based upon a person's ability to pay, considering income, basic living expenses, and court costs and other expenses arising from the case at issue.

Such programs shall not:

(A) Jeopardize the quality of defense or act to deny representation to qualified defendants;

(B) Require or include direct payments from the applicant to the appointed counsel;

(C) Require any payments, compensation, or in-kind services from an applicant whose gross income is equal to or less than one hundred twenty-five per cent of the federal poverty level;

(D) Require payments from a child applicant's parent if the child's parent or a relative of the parent is the alleged victim;

(E) Base assessments on the appointed counsel fee bill, rather than the defendant's ability to pay;

(F) Assess amounts that the person cannot reasonably be expected to pay without hardship;

(G) Attempt to recoup the full cost of providing appointed counsel, experts, transcripts, or other associated expenses.

Replaces: 120-1-05

Effective: 12/1/2015
Five Year Review (FYR) Dates: 12/01/2020
Promulgated Under: 111.15
Statutory Authority: 120.03(B)
Rule Amplifies: 120.03(B)
Prior Effective Dates: 1/9/78, 9/27/91, 1/1/00, 10/9/07

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 prosecutors with comparable years in practice and experience.

(B) The office of the county public defender or joint county public defender shall be based in a location convenient for clients and readily accessible to the courts and other necessary services.

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

(D) The budget of a county public defender shall provide for:

(1) Adequate office space, file storage space, and other facilities as prescribed by the Ohio public defender standards and guidelines for reimbursement, including a case reporting and management information system;

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

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

(4) The confidential employment of experts and specialists, or, if such funds are not included in the public defender budget, requests for experts must be held ex parte if so requested in writing;

(5) Supportive services, including secretarial, investigative, and other defense litigation support necessary to provide quality representation at every phase of the process at which the office provides representation, including determinations on pretrial release, eligibility for diversion mitigation advocacy at sentencing, and represenation following conviction, including appeals and post-conviction relief;

(6) Training for attorneys and support staff in subject matter areas relevant to their job duties.

Effective: 12/1/2015
Five Year Review (FYR) Dates: 06/22/2015 and 12/01/2020
Promulgated Under: 111.15
Statutory Authority: 120.03
Rule Amplifies: 120.03
Prior Effective Dates: 1/9/78, 1/1/00, 10/9/09

120-1-07 Workload standards.

(A) Neither a public defender nor a court-appointed counsel may accept a workload that threatens to deny due process of law or constitutional rights to any client, places the office or attorney in imminent danger of violating the Ohio Rules of Professional Conduct, or otherwise threatens quality representation of the client. Factors to be considered in determining appropriate workload include:

(1) The number and complexity of cases the attorney is handling.

(2) The attorney's experience and ability, including the number of years the attorney has practiced law; the proportion of time the attorney has dedicated to criminal or juvenile defense; the types of cases, including degree of charges 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.

(3) The attorney's out-of-court duties, including meetings with clients, witnesses, experts, and other persons involved in cases; research and writing of briefs, memoranda, motions, and letters; management or supervisory duties; and office or clerical work.

(4) The attorney's access to information technology, including online research tools, online court dockets, and case file information.

(5) The attorney's support staff, including legal secretaries, administrative assistants, paralegals, investigators, mitigation specialists, and social workers.

(6) Local discovery practices, the ease with which the attorney can access all discoverable materials, and the amount of discovery and evidence that must be reviewed.

(7) How the court's scheduling and other procedures impact the attorney's use of time.

(8) How much the attorney must travel in order to provide quality representation.

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

(B) Whenever, by reason of excessive workload, a public defender or appointed counsel determines that the assumption of additional cases or continued representation in previously accepted cases will lead to the inadequate representation of any client, the public defender or appointed counsel shall:

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

(2) Request that the court allow the attorney's withdrawal as counsel from assigned cases and appoint substitute counsel, or allow the attorney to temporarily refrain from accepting new cases.

Replaces: 120-1-07

Effective: 12/1/2015
Five Year Review (FYR) Dates: 12/01/2020
Promulgated Under: 111.15
Statutory Authority: 120.03
Rule Amplifies: 120.03
Prior Effective Dates: 1/9/78, 1/1/00, 10/9/09

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 corporations or villages.

In order to qualify for reimbursement, such contracts must be approved by the state public defender and:

(A) Contracts should be for a term of one calendar year, unless a different term is approved by the state public defender. Automatically renewing contracts will not be approved. Proof of a renewed contract must be sent to the state public defender for approval.

(B) Reimbursement by the municipal corporation or village may be determined by a contractual amount or a fee schedule, but 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.

(C) All contracts shall provide for conformity with all rules, standards, and guidelines issued by the office of the Ohio public defender and the Ohio public defender commission.

Effective: 12/1/2015
Five Year Review (FYR) Dates: 06/22/2015 and 12/01/2020
Promulgated Under: 111.15
Statutory Authority: 120.03
Rule Amplifies: 120.03
Prior Effective Dates: 1/9/78, 1/1/00, 10/9/09

120-1-10 Appointment systems and attorney qualifications.

To qualify for reimbursement, attorneys and the systems used to appoint attorneys must meet the requirements of this rule.

(A) Appointment systems. Pursuant to Rule 8 of the Rules of Superintendence for the Courts, courts must adopt a local rule for the appointment of counsel that ensures the equitable distribution of appointments among persons on each list. Such appointment systems must also:

(1) Be independent from individual influence by a member of the judiciary, anyone involved in prosecuting criminal cases, or any elected official.

(2) Ensure that appointments are distributed as widely as possible among members of the bar who qualify to be on an assignment list, by utilizing a rotary system designed to pair the seriousness and complexity of a case with attorneys who meet qualifications outlined below for appointment to such a case. On rare occasion it may be in the interest of justice for a court to select an individual attorney whose expertise or experience is particularly well suited to a given case or client.

(3) Have a written application process for inclusion, review, advancement in qualifications, and removal from the appointed counsel list.

(4) Not require an attorney to join or pay a fee to any organization as a condition of inclusion in the appointment system.

(5) Maintain a record of all appointments of counsel, the qualification of counsel to accept cases based upon degree and severity of the charge, and a record of attorneys' refusals to accept appointments.

(B) Misdemeanors. Attorneys appointed to represent indigent clients in misdemeanor cases must have:

(1) Completed a minimum of six hours of continuing legal education, certified by the Ohio supreme court commission on continuing legal education, in criminal practice and procedure; or

(2) Successfully completed a clinical education program focusing on criminal defense; or

(3) At least one year of experience as an attorney.

(C) Misdemeanor OVI cases. Attorneys appointed to represent indigent clients in misdemeanor OVI cases must have completed a minimum of six hours of continuing legal education, certified by the Ohio supreme court commission on continuing legal education, focused on OVI practice and procedure.

(D) Training requirements for all felony cases. Attorneys appointed to represent indigent clients in felony cases must meet the following training requirements:

(1) Within two years prior to the appointment, completion of a minimum of twelve hours of continuing legal education, certified by the Ohio supreme court commission on continuing legal education, in criminal practice and procedure.

(2) Prior to the appointment to a felony OVI case, completion of a minimum of six hours of continuing legal education, certified by the Ohio supreme court commission on continuing legal education, focused on OVI practice and procedure.

(E) Felonies of the fourth and fifth degree. Where the defendant is charged with a felony of the fourth or fifth degree, counsel must have at least one year of experience as an attorney practicing in the area of criminal law.

(F) Felonies of third degree. Where the defendant is charged with a felony of the third degree, counsel must have:

(1) At least one year of experience as an attorney practicing in the area of criminal law; and

(2) Within six years preceding the appointment, prior experience as lead trial counsel in at least one criminal jury trial, or as co-counsel in at least two jury trials.

(G) Felonies of the first and second degree. Where the defendant is charged with a felony of the first or second degree, counsel must have:

(1) At least three years of experience as an attorney practicing in the area of criminal law; and

(2) Within ten years preceding the appointment, prior experience as lead trial counsel in two criminal jury trials, at least one of which involved felony charges, or as lead counsel in one felony jury trial and as co-counsel in two additional jury trials.

(H) Life sentence cases. Where the defendant is charged with any felony that carries a potential sentence of life imprisonment, whether eligible or ineligible for parole, counsel must have:

(1) At least five years of experience as an attorney practicing in the area of criminal law; and

(2) Within ten years preceding the appointment, prior jury trial experience as lead counsel in five felony jury trials, at least three of which were felonies of the first or second degree; or lead counsel in three jury trials, at least one of which was a felony of third degree, and co-counsel in an additional five jury trials, at least three of which were felonies of the first or second degree.

(I) Death specification cases.

(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 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 Ohio supreme court commission on appointment of counsel in capital cases, or have a waiver of pre-qualification issued by the commission.

(2) Lead trial counsel must have:

(a) At least five years of criminal litigation experience; and

(b) Experience as lead counsel for the defense in the jury trial of at least one capital case, or experience as co-counsel for the defense in the jury trial of at least two capital cases; and

(c) Within ten years preceding the appointment, experience as lead counsel in the jury trial of at least one murder or aggravated murder case; or within five years preceding the appointment, experience as lead counsel in three aggravated or first or second degree felony jury trials.

(3) Trial co-counsel must have:

(a) At least three years of criminal litigation experience; and

(b) Within ten years preceding the appointment, experience as co-counsel in one murder or aggravated murder jury trial; or within five years preceding the appointment, experience as lead counsel in one first or second degree felony jury trial; or within five years preceding the appointment, experience as lead or co-counsel in at least two felony jury or civil jury trials.

(J) Juvenile cases.

(1) Unruly, truancy, violation of a court order, and misdemeanors. Where the case involves a child alleged to be unruly, truant, in violation of a court order, or delinquent by reason of committing an act that would be a misdemeanor, counsel must have:

(a) Completed a minimum of six hours of continuing legal education, certified by the Ohio supreme court commission on continuing legal education, in juvenile delinquency practice and procedure; or

(b) Successfully completed a clinical education program focusing on juvenile law; or

(c) At least one year of experience as an attorney.

(2) Misdemeanor OVI cases. Attorneys appointed to a misdemeanor OVI case involving a juvenile must have completed a minimum of six hours of continuing legal education, certified by the Ohio supreme court commission on continuing legal education, focused on OVI practice and procedure.

(3) Training requirements for all felony cases. Where the case involves a child alleged to be delinquent by reason of committing an act that would be a felony, within two years prior to the appointment, the attorney must have completed a minimum of twelve hours of continuing legal education, certified by the Ohio supreme court commission on continuing legal education, in criminal practice and procedure, at least six of which must be in the area of juvenile delinquency practice and procedure.

(4) Felonies of the third, fourth, and fifth degree. Where the case involves a child alleged to be delinquent by reason of committing an act that would be a felony of the third, fourth, or fifth degree, counsel must also have at least one year of experience as an attorney practicing in the area of juvenile delinquency law.

(5) Felonies of the first and second degree. Where the case involves a child alleged to be delinquent by reason of committing an act that would be a felony of the first or second degree, counsel must have:

(a) At least two years of experience as an attorney practicing in the area of juvenile delinquency law; and

(b) Within ten years preceding the appointment, prior experience as lead trial counsel in at least two bench trials in juvenile court, at least one of which involved a felony-level charge, or as lead counsel in one felony bench trial and as co-counsel in two additional bench trials.

(6) Bindover and serious youthful offender cases. Where a petition to transfer to common pleas court or a motion for bindover proceeding has been filed, or where a serious youth offender proceeding has been initiated, counsel must have:

(a) The requisite experience under this rule to be appointed to a juvenile case based upon the highest degree of the charge in the case; and

(b) The requisite experience under this rule to be appointed to an adult case based upon the highest degree felony charged; or

(c) Co-counsel who meets the adult-case training and experience requirements must also be appointed.

(7) Murder and aggravated murder cases. Where the case involves a child alleged to be delinquent by reason of committing murder or aggravated murder without specifications, without a motion to bind over, and without a serious youthful offender proceeding, counsel must have:

(a) At least three years of experience as an attorney practicing in the area of juvenile delinquency law; and

(b) Within ten years preceding the appointment, prior experience as lead trial counsel in at least four bench trials in juvenile court, at least three of which involved a felony-level charge, or as lead counsel in three bench trials, two of which involved a felony-level charge, and as co-counsel in three additional bench trials.

(K) Adult appellate cases. For purposes of this section, a case in which an Anders brief was filed may not be counted as prior experience.

(1) All misdemeanors, and felonies of the fourth and fifth degree. Where the defendant is appealing a conviction of a misdemeanor or of a felony of the fourth or fifth degree, counsel must have:

(a) Completed a minimum of six hours of continuing legal education, certified by the Ohio supreme court commission on continuing legal education, in criminal or appellate practice and procedure; or

(b) Successfully completed a clinical education program focusing on appellate practice; or

(c) At least one year of experience as an attorney.

(2) Training requirements for felonies of the first, second, or third degree. Where the defendant is appealing a conviction of a felony of the first, second, or third degree, within two years prior to the appointment, counsel must have completed a minimum of twelve hours of continuing legal education, certified by the Ohio supreme court commission on continuing legal education, in criminal practice and procedure, at least six of which must be in the area of appellate practice.

(3) Felonies of the third degree. Where the defendant is appealing a conviction of a felony of the third degree, counsel must have:

(a) At least one year of experience as an attorney practicing in the area of appellate law; and

(b) Within six years preceding the appointment, filed appeals in three cases resolved by plea, or one appeal of a case that was resolved by trial.

(4) Felonies of the first and second degree. Where the defendant is appealing a conviction of a felony of a first or second degree, counsel must have:

(a) At least two years of experience as an attorney practicing in the area of appellate law; and

(b) Within ten years preceding the appointment, filed appeals in three cases that were resolved by trial.

(5) Cumulative sentences of twenty-five years or more. Where the defendant is appealing a cumulative sentence of twenty-five years or more, whether eligible or ineligible for parole, counsel must have:

(a) At least five years of experience as an attorney practicing in the area of appellate law; and

(b) Within ten years preceding the appointment, filed appeals in five cases resolved by trial.

(L) Juvenile appellate cases. For purposes of this rule, a case in which an Anders brief was filed may not be counted as prior experience.

(1) Unruly, truancy, violation of a court order, misdemeanors, and felonies of the third, fourth, and fifth degree. Where the matter involves the appeal of a case where a child has been found to be unruly, truant, in violation of a court order, or delinquent by reason committing an act that would be a misdemeanor or a felony of the third, fourth of fifth degree, counsel must have:

(a) Completed a minimum of nine hours of continuing legal education, certified by the Ohio supreme court commission on continuing legal education, in the areas of appellate practice and procedure and juvenile delinquency practice and procedure; or

(b) Successfully completed a clinical education program focusing on appellate practice and procedure and a minimum of six hours of continuing legal education in the area of juvenile delinquency practice and procedure; or

(c) Successfully completed a clinical education program focusing on juvenile delinquency practice and procedure and a minimum of six hours of continuing legal education in the area of appellate practice and procedure.

(2) Felonies of the first and second degree. Where the matter involves the appeal of a case where a child has been found to be delinquent by reason of committing an act that would be a felony of the first or second degree, counsel must have:

(a) Within two years immediately prior to the appointment, completed a minimum of twelve hours of continuing legal education, certified by the Ohio supreme court commission on continuing legal education, at least six of which must be in the area of juvenile delinquency practice, and at least six of which must be in the area of appellate practice; and

(b) At least two years of experience as an attorney practicing in the area of juvenile delinquency and appellate law; and

(c) Within six years preceding the appointment, filed appeals of three juvenile delinquency cases.

(3) Bindover and serious youthful offender cases. Where the matter involves the appeal of a case transferred to common pleas court or a serious youth offender proceeding, counsel must have:

(a) The requisite experience under this rule to handle the appeal of a juvenile case based upon the highest degree of the charge in the case; and

(b) The requisite experience under this rule to handle the appeal of an adult case based upon the highest degree felony charged; or

(c) Co-counsel who meets the adult-case training and experience requirements must also be appointed.

(M) For purposes of this rule, co-counsel is defined as an attorney who is assisting lead counsel assigned to represent the defendant, who has entered an appearance in the matter, and who has actively participated in the presentation of the case up to and during trial. Co-counsel qualify for reimbursement only in cases where two attorneys are required to be appointed, as in death penalty, bindover, and serious youthful offender cases.

(N) Prior to or at the time of appointment, a court may submit an attorney's qualification information to the Ohio public defender, in order to ascertain whether counsel qualifies under this rule and is in compliance with the Ohio public defender standards and guidelines for reimbursement, prior to the submission of a bill.

(O) Exceptional circumstances. An attorney who does not meet the requirements of this rule may request an exemption for exceptional circumstances and, if approved, may proceed as being qualified. An attorney requesting such an exemption must submit to the Ohio public defender commission materials that demonstrate that high quality, competent representation will be provided. The request and all supporting materials must be submitted at least two weeks prior to a regularly scheduled quarterly meeting of the Ohio public defender commission. Applicants will be notified of the commission's decision within two weeks after the commission's meeting.

(P) An attorney employed full-time by a public defender office that meets all applicable standards and guidelines promulgated pursuant to Chapter 120. of the Revised Code and all requirements of rule 120-1-06 of the administrative code, is exempted from the qualification requirements of this section.

(Q) Courts, county public defender commissions, and joint county public defender commissions may adopt local rules requiring qualifications in addition to the minimum standards established by this rule.

Replaces: 120-1-10

Effective: 12/1/2015
Five Year Review (FYR) Dates: 12/01/2020
Promulgated Under: 111.15
Statutory Authority: R.C. 120.03(B), R.C. 120.04(B)
Rule Amplifies: R.C. 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, 3/23/10

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

For purposes of this rule, the disposition of a case is defined as the latter of the last day in court or the issuance of a court entry from the last day in court.

(A) Requests for state reimbursement for appointed counsel cases shall be submitted to the Ohio public defender within ninety days of the end of the calendar month in which the case at issue was disposed, or, if an attorney submits a periodic bill, within ninety days of the end of the calendar month of the last court appearance or, if there has been no in-court time, within ninety days from the end of the calendar month of the last day entered in the attorney log.

(B) The county auditor shall submit the county public defender expense report to the Ohio public defender within thirty days of the end of the calendar month in which the expenditures were incurred. County public defenders shall submit to the Ohio public defender caseload reports within sixty days of the end of the calendar month in which the cases were disposed.

(C) The Ohio public defender reserves the right to deny reimbursement for failure to meet the above deadlines listed in this rule.

Replaces: 120-1-11

Effective: 12/1/2015
Five Year Review (FYR) Dates: 12/01/2020
Promulgated Under: 111.15
Statutory Authority: R.C. 120.03
Rule Amplifies: R.C. 120.03(B), R.C. 120.18(A), R.C. 120.28(A), R.C. 120.33(A)(4)
Prior Effective Dates: 5/8/81, 1/1/00, 10/9/09

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

(A) A 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 to provide indigent legal representation. In order to qualify for state reimbursement, such contract must be approved by the Ohio public defender commission.

(B)

The county commission's initial resolution that established the county or joint county public defender commission and the initial resolution that appointed the members to that commission must be on file with the state public defender.

(C)

The primary purpose of the non-profit organization must be to provide 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.

(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 prior to signing the contract. All contracts submitted to the Ohio public defender commission for approval shall contain a resolution of the board of county commissioners or certification from the county fiscal authority that sufficient funds have been appropriated and are available to meet the contracting authority's obligations under the contract.

(E) A contract with a non-profit organization 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 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 is to provide services. The contract shall also specify any categories for which the non-profit organization 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 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 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.

(6) Support staff, investigators, and experts. The contract should provide for the employment of a support staff of secretaries and non-legal personnel for the office. The contract should also specify how adequate funds will be provided for investigators, social workers, mental health professionals, and other experts necessary to provide quality representation. Experts may also be obtained on motion to the court. To qualify for reimbursement, requests for experts must be held ex parte if so requested in writing by defense counsel. No contract clause may interfere with the 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 employees, subcontractors, and retained experts at rates commensurate with their training, experience, and responsibilities, and compensation paid to persons doing similar work in public agencies in the county. The contract shall also include adequate funding for the training of attorneys and support staff who are employeees of the non-profit organization, in subject matters relevant to their job duties.

(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 . 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 who are employees of the non-profit organization, or that individual members of the non-profit organization carry sufficient malpractice insurance . 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, joint county public defender commission, or state public defender 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)

The county public defender commission or joint county public defender commission shall award a contract under this ruleonly when the non-profit organization is able to fully comply with Chapter 120. of the Revised Code, the rules of the Ohio public defender commission, and all standards and guidelines issued by the Ohio public defender .

(G)

The Ohio public defender commission shall approve a contract with a non-profit organization that conforms to all standards of this rule, Chapter 120. of the Revised Code, the rules of the Ohio public defender commission, and standards and guidelines issued by the Ohio public defender . The Ohio public defender commission shall not approve any contract that is based solely or largely on cost effectiveness, as opposed to quality of representation.

(H)

Any law school, legal aid society, or non-profit organization that enters into a contract with a county public defender to provide legal servicesshall 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 for in determining eligibility for representation under rule 120-1-03 of the Administrative Code shall apply to these organizations .Copies of such contracts shall be made available to the state public defender upon request.

Effective: 12/1/2015
Five Year Review (FYR) Dates: 06/22/2015 and 12/01/2020
Promulgated Under: 111.15
Statutory Authority: R.C. 120.03(B)
Rule Amplifies: R.C. 120.03(B), R.C. 120.14, R.C. 120.24
Prior Effective Dates: 9/27/91, 1/1/00, 10/9/09

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

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

(B) All other provisions of Rule 20 must be followed by the appointing court, board of county commissioners, and attorneys appointed in the case.

(C) If an attorney is initially retained by a defendant and later requests to be appointed by the court, that attorney must be certified pursuant to Rule 20 of the Rules of Superintendence.

(D) If an attorney is providing representation pro bono or pro hac vice and requests an expert at government expense, that attorney or co-counsel must be certified pursuant to Rule 20 of the Rules of Superintendence.

Replaces: 120-1-13

Effective: 12/1/2015
Five Year Review (FYR) Dates: 12/01/2020
Promulgated Under: 111.15
Statutory Authority: R.C. 120.03(B)
Rule Amplifies: R.C. 120.03(B), R.C. 120.18(A), R.C. 120.28(A), R.C. 120.33(A), R.C. 120.34, R.C. 120.35, R.C. 2941.51
Prior Effective Dates: 10/6/88, 1/1/00, 10/9/09

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

(A) In establishing a fee schedule to be paid appointed to 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. Changes to a county's fee schedule must be submitted to the Ohio public defender before such changes go into effect.

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

Effective: 12/1/2015
Five Year Review (FYR) Dates: 06/22/2015 and 12/01/2020
Promulgated Under: 111.15
Statutory Authority: R.C. 120.03(B)
Rule Amplifies: R.C. 120.03 , R.C. 120.33(A)(3)
Prior Effective Dates: 9/27/91, 1/1/00, 10/9/09

120-1-16 Changes in a client's eligibility for services.

(A) If an applicant who is determined to be indigent later becomes able to retain private counsel, no public defender or previously appointed counsel may accept any money for continued representation of that client on the same case. The attorney shall seek to withdraw from the representation iconsistent with the Ohio Rules of Professional Conduct.

(B) If an attorney is initially retained by a client and later appointed by the court because the client has become indigent, the attorney must report to the court the funds received on behalf of the client prior to the attorney's appointment, and the attorney may not solicit or accept any further payment for services rendered prior to the appointment.

(C) If, at any point in a case, a public defender or appointed counsel discovers that a client is not indigent and has sufficient means to hire qualified counsel, the public defender or appointed counsel shall inform the court and move to withdraw from the case.

Effective: 12/1/2015
Five Year Review (FYR) Dates: 06/22/2015 and 12/01/2020
Promulgated Under: 111.15
Statutory Authority: R.C. 120.03(B)
Rule Amplifies: R.C. 120.03(B), R.C. 120.04(B)(3)
Prior Effective Dates: 9/27/91, 1/1/00, 10/9/09

120-1-17 Reimbursement for experts or transcripts.

The county may seek reimbursement for the costs of experts, interpreters, and transcripts requested by the defense by submitting such invoices on forms prescribed by the Ohio public defender. Expert and interpreter fees will be reimbursed only when the expert or interpreter is answerable only to defense counsel. To qualify for reimbursement, requests for experts must be held ex parte if so requested in writing by defense counsel. Transcript expenses will be reimbursed only when the transcript is produced for use by defense counsel at trial, on appeal, or in post-conviction proceedings. Reimbursement will not be made if these costs are presented through the attorney's bill for services.

Effective: 12/1/2015
Five Year Review (FYR) Dates: 06/22/2015 and 12/01/2020
Promulgated Under: 111.15
Statutory Authority: R.C. 120.03(B)
Rule Amplifies: R.C. 120.03(B), R.C. 120.04(B)(3), R.C. 120.18(A), R.C. 120.28(A), R.C. 120.33(A)(4)
Prior Effective Dates: 10/9/09