Chapter 120: PUBLIC DEFENDERS

120.01 Ohio public defender commission.

There is hereby created the Ohio public defender commission to provide, supervise, and coordinate legal representation at state expense for indigent and other persons. The commission shall consist of nine members, one of whom shall be chairman. The chairman shall be appointed by the governor with the advice and consent of the senate. Four members shall be appointed by the governor, two of whom shall be from each of the two major political parties. Four members shall be appointed by the supreme court, two of whom shall be from each of the two major political parties. The chairman, and not less than two of the members appointed by the governor, and not less than two of the members appointed by the supreme court shall be attorneys admitted to the practice of law in this state.

Within thirty days after the effective date of this section, the governor and the supreme court shall make initial appointments to the commission. Of the initial appointments made to the commission by the governor, the appointment of the chairman shall be for a term of two years. Of the other four appointments, one shall be for a term ending one year after the effective date of this section, one shall be for a term ending two years after that date, one shall be for a term ending three years after that date, and one shall be for a term ending four years after that date. Of the initial appointments made to the commission by the supreme court, one shall be for a term ending one year after the effective date of this section, one shall be for a term ending two years after that date, one shall be for a term ending three years after that date, and one shall be for a term ending four years after that date. Thereafter, terms of office shall be for four years, each term ending on the same day of the same month of the year as did the term which it succeeds. Any member appointed to fill a vacancy occurring prior to the expiration of the term for which his predecessor was appointed shall hold office for the remainder of such term. Any member shall continue in office subsequent to the expiration date of his term until his successor takes office or until a period of sixty days has elapsed, whichever occurs first.

Effective Date: 01-13-1976

120.02 Meetings - compensation and expenses.

The members of the Ohio public defender commission shall meet at least quarterly, and shall meet at other times pursuant to the call of the chairman of the commission or at the request of the state public defender. The members of the commission shall receive an amount fixed pursuant to section 124.14 of the Revised Code per diem for every meeting of the commission that they attend, together with the actual and necessary expenses that they incur, and mileage for each mile necessarily traveled, in connection with every meeting of the commission that they attend.

Effective Date: 05-01-1992

120.03 Commission - powers and duties.

(A) The Ohio public defender commission shall appoint the state public defender, who shall serve at the pleasure of the commission.

(B) The Ohio public defender commission shall establish rules for the conduct of the offices of the county and joint county public defenders and for the conduct of county appointed counsel systems in the state. These rules shall include, but are not limited to, the following:

(1) Standards of indigency and minimum qualifications for legal representation by a public defender or appointed counsel. In establishing standards of indigency and determining who is eligible for legal representation by a public defender or appointed counsel, the commission shall consider an indigent person to be an individual who at the time his need is determined is unable to provide for the payment of an attorney and all other necessary expenses of representation. Release on bail shall not prevent a person from being determined to be indigent.

(2) Standards for the hiring of outside counsel;

(3) Standards for contracts by a public defender with law schools, legal aid societies, and nonprofit organizations for providing counsel;

(4) Standards for the qualifications, training, and size of the legal and supporting staff for a public defender, facilities, and other requirements needed to maintain and operate an office of a public defender;

(5) Minimum caseload standards;

(6) Procedures for the assessment and collection of the costs of legal representation that is provided by public defenders or appointed counsel;

(7) Standards and guidelines for determining whether a client is able to make an up-front contribution toward the cost of his legal representation;

(8) Procedures for the collection of up-front contributions from clients who are able to contribute toward the cost of their legal representation, as determined pursuant to the standards and guidelines developed under division (B)(7) of this section. All of such up-front contributions shall be paid into the appropriate county fund.

(9) Standards for contracts between a board of county commissioners, a county public defender commission, or a joint county public defender commission and a municipal corporation for the legal representation of indigent persons charged with violations of the ordinances of the municipal corporation.

(C) The Ohio public defender commission shall adopt rules prescribing minimum qualifications of counsel appointed pursuant to this chapter or appointed by the courts. Without limiting its general authority to prescribe different qualifications for different categories of appointed counsel, the commission shall prescribe, by rule, special qualifications for counsel and co-counsel appointed in capital cases.

(D) In administering the office of the Ohio public defender commission:

(1) The commission shall do the following:

(a) Approve an annual operating budget;

(b) Make an annual report to the governor, the general assembly, and the supreme court of Ohio on the operation of the state public defender's office, the county appointed counsel systems, and the county and joint county public defenders' offices.

(2) The commission may do the following:

(a) Accept the services of volunteer workers and consultants at no compensation other than reimbursement of actual and necessary expenses;

(b) Prepare and publish statistical and case studies and other data pertinent to the legal representation of indigent persons;

(c) Conduct programs having a general objective of training and educating attorneys and others in the legal representation of indigent persons.

(E) There is hereby established in the state treasury the public defender training fund for the deposit of fees received by the Ohio public defender commission from educational seminars, and the sale of publications, on topics concerning criminal law and procedure. Expenditures from this fund shall be made only for the operation of activities authorized by division (D)(2)(c) of this section.

(F)

(1) In accordance with sections 109.02 , 109.07 , and 109.361 to 109.366 of the Revised Code, but subject to division (E) of section 120.06 of the Revised Code, the attorney general shall represent or provide for the representation of the Ohio public defender commission, the state public defender, assistant state public defenders, and other employees of the commission or the state public defender.

(2) Subject to division (E) of section 120.06 of the Revised Code, the attorney general shall represent or provide for the representation of attorneys described in division (C) of section 120.41 of the Revised Code in malpractice or other civil actions or proceedings that arise from alleged actions or omissions related to responsibilities derived pursuant to this chapter, or in civil actions that are based upon alleged violations of the constitution or statutes of the United States, including section 1983 of Title 42 of the United States Code, 93 Stat. 1284 (1979), 42 U.S.C.A. 1983 , as amended, and that arise from alleged actions or omissions related to responsibilities derived pursuant to this chapter. For purposes of the representation, sections 109.361 to 109.366 of the Revised Code shall apply to an attorney described in division (C) of section 120.41 of the Revised Code as if he were an officer or employee, as defined in section 109.36 of the Revised Code, and the Ohio public defender commission or the state public defender, whichever contracted with the attorney, shall be considered his employer.

Effective Date: 07-01-1993

120.04 State public defender - powers and duties.

(A) The state public defender shall serve at the pleasure of the Ohio public defender commission and shall be an attorney with a minimum of four years of experience in the practice of law and be admitted to the practice of law in this state at least one year prior to appointment.

(B) The state public defender shall do all of the following:

(1) Maintain a central office in Columbus. The central office shall be provided with a library of adequate size, considering the needs of the office and the accessibility of other libraries, and other necessary facilities and equipment.

(2) Appoint assistant state public defenders, all of whom shall be attorneys admitted to the practice of law in this state, and other personnel necessary for the operation of the state public defender office. Assistant state public defenders shall be appointed on a full-time basis. The state public defender, assistant state public defenders, and employees appointed by the state public defender shall not engage in the private practice of law.

(3) Supervise the compliance of county public defender offices, joint county public defender offices, and county appointed counsel systems with standards established by rules of the Ohio public defender commission pursuant to division (B) of section 120.03 of the Revised Code;

(4) Keep and maintain financial records of all cases handled and develop records for use in the calculation of direct and indirect costs, in the operation of the office, and report periodically, but not less than annually, to the commission on all relevant data on the operations of the office, costs, projected needs, and recommendations for legislation or amendments to court rules, as may be appropriate to improve the criminal justice system;

(5) Collect all moneys due the state for reimbursement for legal services under this chapter and under section 2941.51 of the Revised Code and institute any actions in court on behalf of the state for the collection of such sums that the state public defender considers advisable. Except as provided otherwise in division (D) of section 120.06 of the Revised Code, all moneys collected by the state public defender under this chapter and section 2941.51 of the Revised Code shall be deposited in the state treasury to the credit of the client payment fund, which is hereby created. All moneys credited to the fund shall be used by the state public defender to appoint assistant state public defenders and to provide other personnel, equipment, and facilities necessary for the operation of the state public defender office, to reimburse counties for the operation of county public defender offices, joint county public defender offices, and county appointed counsel systems pursuant to sections 120.18 , 120.28 , and 120.33 of the Revised Code, or to provide assistance to counties in the operation of county indigent defense systems.

(6) With respect to funds appropriated to the commission to pay criminal costs, perform the duties imposed by sections 2949.19 and 2949.201 of the Revised Code;

(7) Establish standards and guidelines for the reimbursement, pursuant to sections 120.18 , 120.28 , 120.33 , 2941.51 , and 2949.19 of the Revised Code, of counties for the operation of county public defender offices, joint county public defender offices, and county appointed counsel systems and for other costs related to felony prosecutions;

(8) Establish maximum amounts that the state will reimburse the counties pursuant to sections 120.18 , 120.28 , 120.33 , and 2941.51 of the Revised Code;

(9) Establish maximum amounts that the state will reimburse the counties pursuant to section 120.33 of the Revised Code for each specific type of legal service performed by a county appointed counsel system;

(10) Administer sections 120.18 , 120.28 , 120.33 , 2941.51 , and 2949.19 of the Revised Code and make reimbursements pursuant to those sections;

(11) Administer the program established pursuant to sections 120.51 to 120.55 of the Revised Code for the charitable public purpose of providing financial assistance to legal aid societies. Neither the state public defender nor any of the state public defender's employees who is responsible in any way for the administration of that program and who performs those administrative responsibilities in good faith is in any manner liable if a legal aid society that is provided financial assistance under the program uses the financial assistance other than in accordance with sections 120.51 to 120.55 of the Revised Code or fails to comply with the requirements of those sections.

(12) Establish an office for the handling of appeal and postconviction matters;

(13) Provide technical aid and assistance to county public defender offices, joint county public defender offices, and other local counsel providing legal representation to indigent persons, including representation and assistance on appeals.

(C) The state public defender may do any of the following:

(1) In providing legal representation, conduct investigations, obtain expert testimony, take depositions, use other discovery methods, order transcripts, and make all other preparations which are appropriate and necessary to an adequate defense or the prosecution of appeals and other legal proceedings;

(2) Seek, solicit, and apply for grants for the operation of programs for the defense of indigent persons from any public or private source, and may receive donations, grants, awards, and similar funds from any lawful source. Such funds shall be deposited in the state treasury to the credit of the public defender gifts and grants fund, which is hereby created.

(3) Make all the necessary arrangements to coordinate the services of the office with any federal, county, or private programs established to provide legal representation to indigent persons and others, and to obtain and provide all funds allowable under any such programs;

(4) Consult and cooperate with professional groups concerned with the causes of criminal conduct, the reduction of crime, the rehabilitation and correction of persons convicted of crime, the administration of criminal justice, and the administration and operation of the state public defender's office;

(5) Accept the services of volunteer workers and consultants at no compensation other than reimbursement for actual and necessary expenses;

(6) Prescribe any forms that are necessary for the uniform operation of this chapter;

(7) Contract with a county public defender commission or a joint county public defender commission to provide all or any part of the services that a county public defender or joint county public defender is required or permitted to provide by this chapter, or contract with a board of county commissioners of a county that is not served by a county public defender commission or a joint county public defender commission for the provision of services in accordance with section 120.33 of the Revised Code. All money received by the state public defender pursuant to such a contract shall be credited to either the multi-county: county share fund or, if received as a result of a contract with Trumbull county, the Trumbull county: county share fund.

(8) Authorize persons employed as criminal investigators to attend the Ohio peace officer training academy or any other peace officer training school for training;

(9) Procure a policy or policies of malpractice insurance that provide coverage for the state public defender and assistant state public defenders in connection with malpractice claims that may arise from their actions or omissions related to responsibilities derived pursuant to this chapter.

(D) No person employed by the state public defender as a criminal investigator shall attend the Ohio peace officer training academy or any other peace officer training school unless authorized to do so by the state public defender.

Effective Date: 09-29-1999

120.05 Determination of indigency.

(A) The determination of indigency shall be made by the state public defender, subject to review by the court. This section does not apply in relation to sections 120.51 to 120.55 of the Revised Code.

(B) The state public defender shall investigate the financial status of each person to be represented, at the earliest time the circumstances permit, and may require the person represented to disclose the records of public or private income sources and property, otherwise confidential, which may be of aid in determining indigency. The state public defender may obtain information from any public record contained in any office of the state, or any political subdivision or agency thereof, on request without payment of any fees ordinarily required by law. He shall make the results of the investigation available to the court upon request. The court, before whom a person seeking representation is taken, may determine the person's eligibility for legal representation by the state public defender.

(C) If a determination of eligibility cannot be made before the time when the first services are to be rendered by the state public defender, he shall render such services on a provisional basis. If the state public defender, or the court on review, subsequently determines that the person receiving the services is ineligible, the public defender shall notify the person of the termination of his services.

(D) Where the person represented has, or may reasonably be expected to have, the means to meet some part of the cost of the services rendered to him, he shall reimburse the state public defender in an amount which he can reasonably be expected to pay.

(E) If it is determined by the state public defender, or by the court, that the legal representation was provided to a person not entitled thereto, the person may be required to reimburse the public defender for the costs of the representation provided. Any action filed by the state public defender to collect legal fees hereunder, must be brought within two years from the last date legal representation was provided.

Effective Date: 01-08-1985

120.06 Duty to provide legal representation to indigent adults and juveniles.

(A)

(1) The state public defender, when designated by the court or requested by a county public defender or joint county public defender, may provide legal representation in all courts throughout the state to indigent adults and juveniles who are charged with the commission of an offense or act for which the penalty or any possible adjudication includes the potential loss of liberty.

(2) The state public defender may provide legal representation to any indigent person who, while incarcerated in any state correctional institution, is charged with a felony offense, for which the penalty or any possible adjudication that may be imposed by a court upon conviction includes the potential loss of liberty.

(3) The state public defender may provide legal representation to any person incarcerated in any correctional institution of the state, in any matter in which the person asserts the person is unlawfully imprisoned or detained.

(4) The state public defender, in any case in which the state public defender has provided legal representation or is requested to do so by a county public defender or joint county public defender, may provide legal representation on appeal.

(5) The state public defender, when designated by the court or requested by a county public defender, joint county public defender, or the director of rehabilitation and correction, shall provide legal representation in parole and probation revocation matters or matters relating to the revocation of community control or post-release control under a community control sanction or post-release control sanction, unless the state public defender finds that the alleged parole or probation violator or alleged violator of a community control sanction or post-release control sanction has the financial capacity to retain the alleged violator's own counsel.

(6) If the state public defender contracts with a county public defender commission, a joint county public defender commission, or a board of county commissioners for the provision of services, under authority of division (C)(7) of section 120.04 of the Revised Code, the state public defender shall provide legal representation in accordance with the contract.

(B) The state public defender shall not be required to prosecute any appeal, postconviction remedy, or other proceeding pursuant to division (A)(3), (4), or (5) of this section, unless the state public defender first is satisfied that there is arguable merit to the proceeding.

(C) A court may appoint counsel or allow an indigent person to select the indigent's own personal counsel to assist the state public defender as co-counsel when the interests of justice so require. When co-counsel is appointed to assist the state public defender, the co-counsel shall receive any compensation that the court may approve, not to exceed the amounts provided for in section 2941.51 of the Revised Code.

(D)

(1) When the state public defender is designated by the court or requested by a county public defender or joint county public defender to provide legal representation for an indigent person in any case, other than pursuant to a contract entered into under authority of division (C)(7) of section 120.04 of the Revised Code, the state public defender shall send to the county in which the case is filed a bill detailing the actual cost of the representation that separately itemizes legal fees and expenses. The county, upon receipt of an itemized bill from the state public defender pursuant to this division, shall pay the state public defender each of the following amounts:

(a) For the amount identified as legal fees in the itemized bill, one hundred per cent of the amount identified as legal fees less the state reimbursement rate as calculated by the state public defender pursuant to section 120.34 of the Revised Code for the month the case terminated, as set forth in the itemized bill;

(b) For the amount identified as expenses in the itemized bill, one hundred per cent.

(2) Upon payment of the itemized bill under division (D)(1) of this section, the county may submit the cost of the expenses, excluding legal fees, to the state public defender for reimbursement pursuant to section 120.33 of the Revised Code.

(3) When the state public defender provides investigation or mitigation services to private appointed counsel or to a county or joint county public defender as approved by the appointing court, other than pursuant to a contract entered into under authority of division (C)(7) of section 120.04 of the Revised Code, the state public defender shall send to the county in which the case is filed a bill itemizing the actual cost of the services provided. The county, upon receipt of an itemized bill from the state public defender pursuant to this division, shall pay one hundred per cent of the amount as set forth in the itemized bill. Upon payment of the itemized bill received pursuant to this division, the county may submit the cost of the investigation and mitigation services to the state public defender for reimbursement pursuant to section 120.33 of the Revised Code.

(4) There is hereby created in the state treasury the county representation fund for the deposit of moneys received from counties under this division. All moneys credited to the fund shall be used by the state public defender to provide legal representation for indigent persons when designated by the court or requested by a county or joint county public defender or to provide investigation or mitigation services, including investigation or mitigation services to private appointed counsel or a county or joint county public defender, as approved by the court.

(E)

(1) Notwithstanding any contrary provision of sections 109.02, 109.07, 109.361 to 109.366, and 120.03 of the Revised Code that pertains to representation by the attorney general, an assistant attorney general, or special counsel of an officer or employee, as defined in section 109.36 of the Revised Code, or of an entity of state government, the state public defender may elect to contract with, and to have the state pay pursuant to division (E)(2) of this section for the services of, private legal counsel to represent the Ohio public defender commission, the state public defender, assistant state public defenders, other employees of the commission or the state public defender, and attorneys described in division (C) of section 120.41 of the Revised Code in a malpractice or other civil action or proceeding that arises from alleged actions or omissions related to responsibilities derived pursuant to this chapter, or in a civil action that is based upon alleged violations of the constitution or statutes of the United States, including section 1983 of Title 42 of the United States Code, 93 Stat. 1284 (1979), 42 U.S.C.A. 1983, as amended, and that arises from alleged actions or omissions related to responsibilities derived pursuant to this chapter, if the state public defender determines, in good faith, that the defendant in the civil action or proceeding did not act manifestly outside the scope of the defendant's employment or official responsibilities, with malicious purpose, in bad faith, or in a wanton or reckless manner. If the state public defender elects not to contract pursuant to this division for private legal counsel in a civil action or proceeding, then, in accordance with sections 109.02, 109.07, 109.361 to 109.366, and 120.03 of the Revised Code, the attorney general shall represent or provide for the representation of the Ohio public defender commission, the state public defender, assistant state public defenders, other employees of the commission or the state public defender, or attorneys described in division (C) of section 120.41 of the Revised Code in the civil action or proceeding.

(2)

(a) Subject to division (E)(2)(b) of this section, payment from the state treasury for the services of private legal counsel with whom the state public defender has contracted pursuant to division (E)(1) of this section shall be accomplished only through the following procedure:

(i) The private legal counsel shall file with the attorney general a copy of the contract; a request for an award of legal fees, court costs, and expenses earned or incurred in connection with the defense of the Ohio public defender commission, the state public defender, an assistant state public defender, an employee, or an attorney in a specified civil action or proceeding; a written itemization of those fees, costs, and expenses, including the signature of the state public defender and the state public defender's attestation that the fees, costs, and expenses were earned or incurred pursuant to division (E)(1) of this section to the best of the state public defender's knowledge and information; a written statement whether the fees, costs, and expenses are for all legal services to be rendered in connection with that defense, are only for legal services rendered to the date of the request and additional legal services likely will have to be provided in connection with that defense, or are for the final legal services rendered in connection with that defense; a written statement indicating whether the private legal counsel previously submitted a request for an award under division (E)(2) of this section in connection with that defense and, if so, the date and the amount of each award granted; and, if the fees, costs, and expenses are for all legal services to be rendered in connection with that defense or are for the final legal services rendered in connection with that defense, a certified copy of any judgment entry in the civil action or proceeding or a signed copy of any settlement agreement entered into between the parties to the civil action or proceeding.

(ii) Upon receipt of a request for an award of legal fees, court costs, and expenses and the requisite supportive documentation described in division (E)(2)(a)(i) of this section, the attorney general shall review the request and documentation; determine whether any of the limitations specified in division (E)(2)(b) of this section apply to the request; and, if an award of legal fees, court costs, or expenses is permissible after applying the limitations, prepare a document awarding legal fees, court costs, or expenses to the private legal counsel. The document shall name the private legal counsel as the recipient of the award; specify the total amount of the award as determined by the attorney general; itemize the portions of the award that represent legal fees, court costs, and expenses; specify any limitation applied pursuant to division (E)(2)(b) of this section to reduce the amount of the award sought by the private legal counsel; state that the award is payable from the state treasury pursuant to division (E)(2)(a)(iii) of this section; and be approved by the inclusion of the signatures of the attorney general, the state public defender, and the private legal counsel.

(iii) The attorney general shall forward a copy of the document prepared pursuant to division (E)(2)(a)(ii) of this section to the director of budget and management. The award of legal fees, court costs, or expenses shall be paid out of the state public defender's appropriations, to the extent there is a sufficient available balance in those appropriations. If the state public defender does not have a sufficient available balance in the state public defender's appropriations to pay the entire award of legal fees, court costs, or expenses, the director shall make application for a transfer of appropriations out of the emergency purposes account or any other appropriation for emergencies or contingencies in an amount equal to the portion of the award that exceeds the sufficient available balance in the state public defender's appropriations. A transfer of appropriations out of the emergency purposes account or any other appropriation for emergencies or contingencies shall be authorized if there are sufficient moneys greater than the sum total of then pending emergency purposes account requests, or requests for releases from the other appropriation. If a transfer of appropriations out of the emergency purposes account or other appropriation for emergencies or contingencies is made to pay an amount equal to the portion of the award that exceeds the sufficient available balance in the state public defender's appropriations, the director shall cause the payment to be made to the private legal counsel. If sufficient moneys do not exist in the emergency purposes account or other appropriation for emergencies or contingencies to pay an amount equal to the portion of the award that exceeds the sufficient available balance in the state public defender's appropriations, the private legal counsel shall request the general assembly to make an appropriation sufficient to pay an amount equal to the portion of the award that exceeds the sufficient available balance in the state public defender's appropriations, and no payment in that amount shall be made until the appropriation has been made. The private legal counsel shall make the request during the current biennium and during each succeeding biennium until a sufficient appropriation is made.

(b) An award of legal fees, court costs, and expenses pursuant to division (E) of this section is subject to the following limitations:

(i) The maximum award or maximum aggregate of a series of awards of legal fees, court costs, and expenses to the private legal counsel in connection with the defense of the Ohio public defender commission, the state public defender, an assistant state public defender, an employee, or an attorney in a specified civil action or proceeding shall not exceed fifty thousand dollars.

(ii) The private legal counsel shall not be awarded legal fees, court costs, or expenses to the extent the fees, costs, or expenses are covered by a policy of malpractice or other insurance.

(iii) The private legal counsel shall be awarded legal fees and expenses only to the extent that the fees and expenses are reasonable in light of the legal services rendered by the private legal counsel in connection with the defense of the Ohio public defender commission, the state public defender, an assistant state public defender, an employee, or an attorney in a specified civil action or proceeding.

(c) If, pursuant to division (E)(2)(a) of this section, the attorney general denies a request for an award of legal fees, court costs, or expenses to private legal counsel because of the application of a limitation specified in division (E)(2)(b) of this section, the attorney general shall notify the private legal counsel in writing of the denial and of the limitation applied.

(d) If, pursuant to division (E)(2)(c) of this section, a private legal counsel receives a denial of an award notification or if a private legal counsel refuses to approve a document under division (E)(2)(a)(ii) of this section because of the proposed application of a limitation specified in division (E)(2)(b) of this section, the private legal counsel may commence a civil action against the attorney general in the court of claims to prove the private legal counsel's entitlement to the award sought, to prove that division (E)(2)(b) of this section does not prohibit or otherwise limit the award sought, and to recover a judgment for the amount of the award sought. A civil action under division (E)(2)(d) of this section shall be commenced no later than two years after receipt of a denial of award notification or, if the private legal counsel refused to approve a document under division (E)(2)(a)(ii) of this section because of the proposed application of a limitation specified in division (E)(2)(b) of this section, no later than two years after the refusal. Any judgment of the court of claims in favor of the private legal counsel shall be paid from the state treasury in accordance with division (E)(2)(a) of this section.

(F) If a court appoints the office of the state public defender to represent a petitioner in a postconviction relief proceeding under section 2953.21 of the Revised Code, the petitioner has received a sentence of death, and the proceeding relates to that sentence, all of the attorneys who represent the petitioner in the proceeding pursuant to the appointment, whether an assistant state public defender, the state public defender, or another attorney, shall be certified under Rule 20 of the Rules of Superintendence for the Courts of Ohio to represent indigent defendants charged with or convicted of an offense for which the death penalty can be or has been imposed.

(G)

(1) The state public defender may conduct a legal assistance referral service for children committed to the department of youth services relative to conditions of confinement claims. If the legal assistance referral service receives a request for assistance from a child confined in a facility operated, or contracted for, by the department of youth services and the state public defender determines that the child has a conditions of confinement claim that has merit, the state public defender may refer the child to a private attorney. If no private attorney who the child has been referred to by the state public defender accepts the case within a reasonable time, the state public defender may prepare, as appropriate, pro se pleadings in the form of a complaint regarding the conditions of confinement at the facility where the child is confined with a motion for appointment of counsel and other applicable pleadings necessary for sufficient pro se representation.

(2) Division (G)(1) of this section does not authorize the state public defender to represent a child committed to the department of youth services in general civil matters arising solely out of state law.

(3) The state public defender shall not undertake the representation of a child in court based on a conditions of confinement claim arising under this division.

(H) A child's right to representation or services under this section is not affected by the child, or another person on behalf of the child, previously having paid for similar representation or services or having waived legal representation.

(I) The state public defender shall have reasonable access to any child committed to the department of youth services, department of youth services institution, and department of youth services record as needed to implement this section.

(J) As used in this section:

(1) "Community control sanction" has the same meaning as in section 2929.01 of the Revised Code.

(2) "Conditions of confinement" means any issue involving a constitutional right or other civil right related to a child's incarceration, including, but not limited to, actions cognizable under 42 U.S.C. 1983.

(3) "Post-release control sanction" has the same meaning as in section 2967.01 of the Revised Code.

Amended by 130th General Assembly File No. 25, HB 59, §101.01, eff. 7/1/2013.

Effective Date: 01-01-2004; 09-29-2005

120.07 Civil case filing fee fund.

There is hereby created in the state treasury the civil case filing fee fund to receive all funds deposited in the fund pursuant to sections 1901.26 , 1907.24 , and 2303.201 of the Revised Code. All money credited to the fund shall be used by the state public defender for the purpose of appointing assistant state public defenders and for providing other personnel, equipment, and facilities necessary for the operation of the state public defender office.

Effective Date: 09-29-2005

120.08 Indigent defense support fund.

There is hereby created in the state treasury the indigent defense support fund, consisting of money paid into the fund pursuant to sections 4507.45 , 4509.101 , 4510.22 , and 4511.19 of the Revised Code and pursuant to sections 2937.22 , 2949.091 , and 2949.094 of the Revised Code out of the additional court costs imposed under those sections. The state public defender shall use at least eighty-eight per cent of the money in the fund for the purposes of reimbursing county governments for expenses incurred pursuant to sections 120.18 , 120.28 , and 120.33 of the Revised Code and operating its system pursuant to division (C)(7) of section 120.04 of the Revised Code and division (B) of section 120.33 of the Revised Code. Disbursements from the fund to county governments shall be made at least once per year and shall be allocated proportionately so that each county receives an equal percentage of its total cost for operating its county public defender system, its joint county public defender system, its county appointed counsel system, or its system operated under division (C)(7) of section 120.04 of the Revised Code and division (B) of section 120.33 of the Revised Code. The state public defender may use not more than twelve per cent of the money in the fund for the purposes of appointing assistant state public defenders , providing other personnel, equipment, and facilities necessary for the operation of the state public defender office, and providing training, developing and implementing electronic forms, or establishing and maintaining an information technology system used for the uniform operation of this chapter.

Amended by 129th General AssemblyFile No.141, HB 509, §1, eff. 9/28/2012.

Amended by 128th General AssemblyFile No.9, HB 1, §101.01, eff. 10/16/2009.

Effective Date: 2008 SB209 06-25-2008; 2008 HB562 09-22-2008

120.13 County public defender commission.

(A) The county commissioners in any county may establish a county public defender commission. The commission shall have five members, three of whom shall be appointed by the board of county commissioners, and two by the judge, or the presiding judge if there is one, of the court of common pleas of the county. At least one member appointed by each of these appointing bodies shall be an attorney admitted to the practice of law in this state.

(B) The board of county commissioners shall select a specific day for the county public defender commission to be established and on which all members' appointments shall take effect, and shall notify the Ohio public defender commission of the date.

(C) Of the initial appointments made to the county public defender commission, two appointments by the county commissioners and one appointment by the court shall be for a term of two years ending two years after the date the commission is established, and one appointment by each of the appointing bodies shall be for a term ending four years after the date the commission is established. Thereafter, terms of office shall be for four years, each term ending on the same day of the same month of the year as did the term which it succeeds. Each member shall hold office from the date of appointment until the end of the term for which the member was appointed. Any member appointed to fill a vacancy occurring prior to the expiration of the term for which the member's predecessor was appointed shall hold office for the remainder of such term. Any member shall continue in office subsequent to the expiration date of the member's term until a successor takes office, or until a period of sixty days has elapsed, whichever occurs first.

(D) The members of the commission shall choose as chairperson one of the commission members, who shall serve as chairperson for two years. Meetings shall be held at least quarterly and at such other times as called by the chairperson or by request of the county public defender. Members of the commission may receive an amount fixed by the county commissioners, but not in excess of the amounts set for the members of the Ohio public defender commission pursuant to section 124.14 of the Revised Code per diem for every meeting of the board they attend, and necessary expenses including mileage for each mile necessarily traveled.

(E) The county commissioners may terminate the county public defender commission at any time if at least ninety days prior to termination, the commissioners notify the Ohio public defender commission in writing of the termination date. Upon the termination date all pending county public defender matters shall be transferred to the state public defender, a joint county public defender, or appointed counsel.

(F) The cost of representation in all matters assumed by the state public defender shall be charged to the counties in accordance with division (D) of section 120.06 of the Revised Code.

Effective Date: 11-15-1981; 09-29-2005

120.14 County public defender commission - powers and duties.

(A)

(1) Except as provided in division (A)(2) of this section, the county public defender commission shall appoint the county public defender and may remove him from office only for good cause.

(2) If a county public defender commission contracts with the state public defender or with one or more nonprofit organizations for the state public defender or the organizations to provide all of the services that the county public defender is required or permitted to provide by this chapter, the commission shall not appoint a county public defender.

(B) The commission shall determine the qualifications and size of the supporting staff and facilities and other requirements needed to maintain and operate the office of the county public defender.

(C) In administering the office of county public defender, the commission shall:

(1) Recommend to the county commissioners an annual operating budget which is subject to the review, amendment, and approval of the board of county commissioners;

(2)

(a) Make an annual report to the county commissioners and the Ohio public defender commission on the operation of the county public defender's office, including complete and detailed information on finances and costs that separately states costs and expenses that are reimbursable under section 120.35 of the Revised Code, and any other data and information requested by the state public defender;

(b) Make monthly reports relating to reimbursement and associated case data pursuant to the rules of the Ohio public defender commission to the board of county commissioners and the Ohio public defender commission on the total costs of the public defender's office.

(3) Cooperate with the Ohio public defender commission in maintaining the standards established by rules of the Ohio public defender commission pursuant to divisions (B) and (C) of section 120.03 of the Revised Code, and cooperate with the state public defender in his programs providing technical aid and assistance to county systems.

(D) The commission may accept the services of volunteer workers and consultants at no compensation except reimbursement for actual and necessary expenses.

(E) The commission may contract with any municipal corporation, within the county served by the county public defender, for the county public defender to provide legal representation for indigent persons who are charged with a violation of the ordinances of the municipal corporation.

(F) A county public defender commission, with the approval of the board of county commissioners regarding all provisions that pertain to the financing of defense counsel for indigent persons, may contract with the state public defender or with any nonprofit organization, the primary purpose of which is to provide legal representation to indigent persons, for the state public defender or the organization to provide all or any part of the services that a county public defender is required or permitted to provide by this chapter. A contract entered into pursuant to this division may provide for payment for the services provided on a per case, hourly, or fixed contract basis. The state public defender and any nonprofit organization that contracts with a county public defender commission pursuant to this division shall do all of the following:

(1) Comply with all standards established by the rules of the Ohio public defender commission;

(2) Comply with all standards established by the state public defender;

(3) Comply with all statutory duties and other laws applicable to county public defenders.

Effective Date: 09-26-1984

120.15 County public defender - powers and duties.

(A) The county public defender shall be appointed by the county public defender commission for a term not to exceed four years. He shall be an attorney with a minimum of two years experience in the practice of law and be admitted to the practice of law in Ohio at least one year prior to his appointment.

(B) In carrying out the responsibilities and performing the duties of his office, the county public defender shall:

(1) Maintain an office, approved by the commission, provided with a library of adequate size, considering the needs of the office and the accessibility of other libraries, and other necessary facilities and equipment;

(2) Keep and maintain financial records of all cases handled and develop records for use in the calculation of direct and indirect costs in the operation of the office and report monthly pursuant to the rules of the Ohio public defender commission to the county public defender commission and to the Ohio public defender commission on all relevant data on the operations of the office, costs, projected needs, and recommendations for legislation or amendments to court rules, as may be appropriate to improve the criminal justice system;

(3) Collect all moneys due from contracts with municipal corporations or for reimbursement for legal services under this chapter and institute such actions in court for the collection of such sums as he considers advisable. All moneys collected or received by the public defender shall be paid into the county treasury to the credit of the general revenue fund.

(4) Appoint assistant county public defenders and all other personnel necessary to the functioning of the county public defender's office, subject to the authority of the county public defender commission to determine the size and qualifications of the staff pursuant to division (B) of section 120.14 of the Revised Code. All assistant county public defenders shall be admitted to the practice of law in Ohio, and may be appointed on a full or part-time basis.

(C) The county public defender may exercise the rights authorized in division (C) of section 120.04 of the Revised Code.

(D) The county public defender shall determine indigency of persons, subject to review by the court, in the same manner as provided in section 120.05 of the Revised Code. Each monthly report submitted to the board of county commissioners and the state public defender shall include a certification by the county public defender that all persons provided representation by the county public defender's office during the month covered by the report were indigent under the standards of the Ohio public defender commission.

Effective Date: 09-26-1984

120.16 Legal representation to be provided.

(A)

(1) The county public defender shall provide legal representation to indigent adults and juveniles who are charged with the commission of an offense or act that is a violation of a state statute and for which the penalty or any possible adjudication includes the potential loss of liberty and in postconviction proceedings as defined in this section.

(2) The county public defender may provide legal representation to indigent adults and juveniles charged with the violation of an ordinance of a municipal corporation for which the penalty or any possible adjudication includes the potential loss of liberty, if the county public defender commission has contracted with the municipal corporation to provide legal representation for indigent persons charged with a violation of an ordinance of the municipal corporation.

(B) The county public defender shall provide the legal representation authorized by division (A) of this section at every stage of the proceedings following arrest, detention, service of summons, or indictment.

(C) The county public defender may request the state public defender to prosecute any appeal or other remedy before or after conviction that the county public defender decides is in the interests of justice, and may provide legal representation in parole and probation revocation matters and matters relating to the revocation of community control or post-release control under a community control sanction or post-release control sanction.

(D) The county public defender shall not be required to prosecute any appeal, postconviction remedy, or other proceeding, unless the county public defender is first satisfied there is arguable merit to the proceeding.

(E) Nothing in this section shall prevent a court from appointing counsel other than the county public defender or from allowing an indigent person to select the indigent person's own personal counsel to represent the indigent person. A court may also appoint counsel or allow an indigent person to select the indigent person's own personal counsel to assist the county public defender as co-counsel when the interests of justice so require.

(F) Information as to the right to legal representation by the county public defender or assigned counsel shall be afforded to an accused person immediately upon arrest, when brought before a magistrate, or when formally charged, whichever occurs first.

(G) If a court appoints the office of the county public defender to represent a petitioner in a postconviction relief proceeding under section 2953.21 of the Revised Code, the petitioner has received a sentence of death, and the proceeding relates to that sentence, all of the attorneys who represent the petitioner in the proceeding pursuant to the appointment, whether an assistant county public defender or the county public defender, shall be certified under Rule 20 of the Rules of Superintendence for the Courts of Ohio to represent indigent defendants charged with or convicted of an offense for which the death penalty can be or has been imposed.

(H) As used in this section:

(1) "Community control sanction" has the same meaning as in section 2929.01 of the Revised Code.

(2) "Post-release control sanction" has the same meaning as in section 2967.01 of the Revised Code.

Effective Date: 01-01-2004

120.17 State public defender not required to defend in counties having county public defender.

In any county in which the county commissioners choose to establish a county public defender's office, the Ohio public defender shall not be required to defend indigent persons in that county, except as set forth in division (A) of section 120.06 of the Revised Code, or if the court finds that it is required in the interests of justice.

Effective Date: 01-13-1976

120.18 Reimbursement of county.

(A) The county public defender commission's report to the board of county commissioners shall be audited by the county auditor. The board of county commissioners, after review and approval of the audited report, may then certify it to the state public defender for reimbursement. If a request for the reimbursement of any operating expenditure incurred by a county public defender office is not received by the state public defender within sixty days after the end of the calendar month in which the expenditure is incurred, the state public defender shall not pay the requested reimbursement, unless the county has requested, and the state public defender has granted, an extension of the sixty-day time limit. Each request for reimbursement shall include a certification by the county public defender that the persons provided representation by the county public defender's office during the period covered by the report were indigent and, for each person provided representation during that period, a financial disclosure form completed by the person on a form prescribed by the state public defender. The state public defender shall also review the report and, in accordance with the standards, guidelines, and maximums established pursuant to divisions (B)(7) and (8) of section 120.04 of the Revised Code, prepare a voucher for fifty per cent of the total cost of each county public defender's office for the period of time covered by the certified report and a voucher for fifty per cent of the costs and expenses that are reimbursable under section 120.35 of the Revised Code, if any, or, if the amount of money appropriated by the general assembly to reimburse counties for the operation of county public defender offices, joint county public defender offices, and county appointed counsel systems is not sufficient to pay fifty per cent of the total cost of all of the offices and systems, for the lesser amount required by section 120.34 of the Revised Code. For the purposes of this section, "total cost" means total expenses minus costs and expenses reimbursable under section 120.35 of the Revised Code and any funds received by the county public defender commission pursuant to a contract, except a contract entered into with a municipal corporation pursuant to division (E) of section 120.14 of the Revised Code, gift, or grant.

(B) If the county public defender fails to maintain the standards for the conduct of the office established by rules of the Ohio public defender commission pursuant to divisions (B) and (C) of section 120.03 or the standards established by the state public defender pursuant to division (B)(7) of section 120.04 of the Revised Code, the Ohio public defender commission shall notify the county public defender commission and the board of county commissioners of the county that the county public defender has failed to comply with its rules or the standards of the state public defender. Unless the county public defender commission or the county public defender corrects the conduct of the county public defender's office to comply with the rules and standards within ninety days after the date of the notice, the state public defender may deny payment of all or part of the county's reimbursement from the state provided for in division (A) of this section.

Effective Date: 09-29-1999

120.23 Joint county public defender commission.

(A) The boards of county commissioners in two or more adjoining or neighboring counties may form themselves into a joint board and proceed to organize a district for the establishment of a joint county public defender commission. The commission shall have three members from each county, who shall be appointed by the board of county commissioners of the county.

(B) The boards shall agree on a specific date for the joint county public defender commission to be established, on which date the appointments of all members shall take effect. The joint board shall notify the Ohio public defender commission of the date.

(C) Of the initial appointments made by each county to the joint county public defender commission, one appointment shall be for a term of one year ending one year after the date the commission is established, one appointment shall be for a term of two years ending two years after the date the commission is established, and one appointment shall be for a period of three years, ending three years after the date the commission is established. Thereafter, terms of office shall be for three years, each term ending on the same day of the same month of the year as did the term which it succeeds. Each member shall hold office from the date of appointment until the end of the term for which the member was appointed. Any member appointed to fill a vacancy occurring prior to the expiration of the term for which the member's predecessor was appointed shall hold office for the remainder of the term. Any member shall continue in office subsequent to the expiration date of the member's term until a successor takes office, or until a period of sixty days has elapsed, whichever occurs first.

(D) The members of the commission shall choose as chairperson one of the commission members, who shall serve as chairperson for two years. Meetings shall be held at least quarterly and at such other times as called by the chairperson or by request of the joint county public defender. Members of the commission may receive an amount fixed by the agreement of the boards of commissioners of the counties in the district, but not in excess of the amount set for the members of the Ohio public defender commission pursuant to section 124.14 of the Revised Code per diem for every meeting of the commission they attend, and necessary expenses including mileage for each mile necessarily traveled.

(E) The agreement of the boards of county commissioners establishing the joint county public defender commission shall provide for the allocation of the proportion of expenses to be paid by each county, which may be based upon population, number of cases, or such other factors as the commissioners determine to be appropriate. The county commissioners may amend their agreement from time to time to provide for a different allocation of the proportion of expenses to be paid by each county.

(F) The county auditor of the county with the greatest population is hereby designated as the fiscal officer of a joint county public defender district organized under this section. The county auditors of the several counties composing the joint county public defender commission district shall meet at the commission office not less than once in each six months, to adjust accounts and to transact such other duties in connection with the commission as pertain to the business of their office.

(G) Each member of the board of county commissioners who meets by appointment to consider the organization of a joint county public defender commission shall, upon presentation of properly certified accounts, be paid the member's necessary expenses upon a warrant drawn by the county auditor of the member's county.

(H) The board of county commissioners of any county within a joint county public defender commission district may withdraw from the district. Such withdrawal shall not be effective until at least ninety days after the board has notified the Ohio public defender commission, the joint county public defender commission of the district, and each board of county commissioners in the district, in writing of the termination date. The failure of a board of county commissioners to approve an annual operating budget for the office of the joint county public defender as provided in division (C)(1) of section 120.24 of the Revised Code constitutes a notice of withdrawal by the county from the district, effective on the ninetieth day after commencement of the next fiscal year. Upon the termination date, all joint county public defender matters relating to the withdrawing county shall be transferred to the state public defender, a county public defender, or appointed counsel.

(I) The cost of representation in all matters assumed by the state public defender shall be charged to the counties in accordance with division (D) of section 120.06 of the Revised Code.

Members of the joint county public defender commission who are residents of a county withdrawing from such district are deemed to have resigned their positions upon the completion of the withdrawal procedure provided by this section. Vacancies thus created shall not be filled.

If two or more counties remain within the district after the withdrawal, the boards of county commissioners of the remaining adjoining or neighboring counties may agree to continue the operation of the joint county public defender commission and to reallocate the proportionate share of expenses to be paid by each participating county.

Effective Date: 11-15-1981; 09-29-2005

120.24 Joint county public defender commission - powers and duties.

(A)

(1) Except as provided in division (A)(2) of this section, the joint county public defender commission shall appoint the joint county public defender and may remove him from office only for good cause.

(2) If a joint county public defender commission contracts with the state public defender or with one or more nonprofit organizations for the state public defender or the organizations to provide all of the services that the joint county public defender is required or permitted to provide by this chapter, the commission shall not appoint a joint county public defender.

(B) The commission shall determine the qualifications and size of the supporting staff and facilities and other requirements needed to maintain and operate the office.

(C) In administering the office of joint county public defender, the commission shall:

(1) Recommend to the boards of county commissioners in the district an annual operating budget which is subject to the review, amendment, and approval of the boards of county commissioners in the district;

(2)

(a) Make an annual report to the boards of county commissioners in the district and the Ohio public defender commission on the operation of the public defender's office, including complete and detailed information on finances and costs that separately states costs and expenses that are reimbursable under section 120.35 of the Revised Code, and such other data and information requested by the state public defender;

(b) Make monthly reports relating to reimbursement and associated case data pursuant to the rules of the Ohio public defender commission to the boards of county commissioners in the district and the Ohio public defender commission on the total costs of the public defender's office.

(3) Cooperate with the Ohio public defender commission in maintaining the standards established by rules of the Ohio public defender commission pursuant to divisions (B) and (C) of section 120.03 of the Revised Code, and cooperate with the state public defender in his programs providing technical aid and assistance to county systems.

(D) The commission may accept the services of volunteer workers and consultants at no compensation except reimbursement for actual and necessary expenses.

(E) The commission may contract with any municipal corporation, within the counties served by the joint county public defender, for the joint county public defender to provide legal representation for indigent persons who are charged with a violation of the ordinances of the municipal corporation.

(F) A joint county public defender commission, with the approval of each participating board of county commissioners regarding all provisions that pertain to the financing of defense counsel for indigent persons, may contract with the state public defender or with any nonprofit organization, the primary purpose of which is to provide legal representation to indigent persons, for the state public defender or the organization to provide all or any part of the services that a joint county public defender is required or permitted to provide by this chapter. A contract entered into pursuant to this division may provide for payment for the services provided on a per case, hourly, or fixed contract basis. The state public defender and any nonprofit organization that contracts with a joint county public defender commission pursuant to this division shall do all of the following:

(1) Comply with all standards established by the rules of the Ohio public defender commission;

(2) Comply with all standards established by the Ohio public defender;

(3) Comply with all statutory duties and other laws applicable to joint county public defenders.

Effective Date: 09-26-1984

120.25 Joint county public defender - powers and duties.

(A) The joint county public defender shall be appointed by the joint county public defender commission for a term not to exceed four years. He shall be an attorney with a minimum of two years experience in the practice of law and be admitted to the practice of law in Ohio at least one year prior to his appointment.

(B) In carrying out the responsibilities and performing the duties of his office, the joint county public defender shall:

(1) Maintain an office, approved by the commission, provided with a library of adequate size, considering the needs of the office and the accessibility of other libraries, and other necessary facilities and equipment;

(2) Keep and maintain financial records of all cases handled and develop records for use in the calculation of direct and indirect costs in the operation of the office, and report monthly pursuant to the rules of the Ohio public defender commission to the joint county defender commission and to the Ohio public defender commission on all relevant data on the operations of the office, costs, projected needs, and recommendations for legislation or amendments to court rules, as may be appropriate to improve the criminal justice system;

(3) Collect all moneys due from contracts with municipal corporations or for reimbursement for legal services under this chapter and institute such actions in court for the collection of such sums as he considers advisable. The public defender shall pay into the treasury of each county in the district, to the credit of the general revenue fund, the county's proportionate share of all moneys collected or received by him.

(4) Appoint assistant joint county public defenders and all other personnel necessary to the functioning of the joint county public defender office, subject to the authority of the joint county public defender commission to determine the size and qualifications of the staff pursuant to division (B) of section 120.24 of the Revised Code. All assistant joint county public defenders shall be admitted to the practice of law in Ohio, and may be appointed on a full or part-time basis.

(C) The joint county public defender may exercise the rights authorized in division (C) of section 120.04 of the Revised Code.

(D) The joint county public defender shall determine indigency of persons, subject to review by the court, in the same manner as provided in section 120.05 of the Revised Code. Each monthly report submitted to the board of county commissioners and the state public defender shall include a certification by the joint county public defender that all persons provided representation by the joint county public defender's office during the month covered by the report were indigent under the standards of the Ohio public defender commission.

Effective Date: 09-26-1984

120.26 Legal representation to be provided.

(A)

(1) The joint county public defender shall provide legal representation to indigent adults and juveniles who are charged with the commission of an offense or act that is a violation of a state statute and for which the penalty or any possible adjudication includes the potential loss of liberty and in postconviction proceedings as defined in this section.

(2) The joint county public defender may provide legal representation to indigent adults and juveniles charged with the violation of an ordinance of a municipal corporation for which the penalty or any possible adjudication includes the potential loss of liberty, if the joint county public defender commission has contracted with the municipal corporation to provide legal representation for indigent persons charged with a violation of an ordinance of the municipal corporation.

(B) The joint county public defender shall provide the legal representation authorized by division (A) of this section at every stage of the proceedings following arrest, detention, service of summons, or indictment.

(C) The joint county public defender may request the Ohio public defender to prosecute any appeal or other remedy before or after conviction that the joint county public defender decides is in the interests of justice and may provide legal representation in parole and probation revocation matters and matters relating to the revocation of community control or post-release control under a community control sanction or post-release control sanction.

(D) The joint county public defender shall not be required to prosecute any appeal, postconviction remedy, or other proceeding, unless the joint county public defender is first satisfied that there is arguable merit to the proceeding.

(E) Nothing in this section shall prevent a court from appointing counsel other than the joint county public defender or from allowing an indigent person to select the indigent person's own personal counsel to represent the indigent person. A court may also appoint counsel or allow an indigent person to select the indigent person's own personal counsel to assist the joint county public defender as co-counsel when the interests of justice so require.

(F) Information as to the right to legal representation by the joint county public defender or assigned counsel shall be afforded to an accused person immediately upon arrest, when brought before a magistrate, or when formally charged, whichever occurs first.

(G) If a court appoints the office of the joint county public defender to represent a petitioner in a postconviction relief proceeding under section 2953.21 of the Revised Code, the petitioner has received a sentence of death, and the proceeding relates to that sentence, all of the attorneys who represent the petitioner in the proceeding pursuant to the appointment, whether an assistant joint county defender or the joint county public defender, shall be certified under Rule 20 of the Rules of Superintendence for the Courts of Ohio to represent indigent defendants charged with or convicted of an offense for which the death penalty can be or has been imposed.

(H) As used in this section:

(1) "Community control sanction" has the same meaning as in section 2929.01 of the Revised Code.

(2) "Post-release control sanction" has the same meaning as in section 2967.01 of the Revised Code.

Effective Date: 01-01-2004

120.27 State public defender not required to defend in counties having joint county public defender.

In any counties in which the boards of county commissioners choose to establish a joint county public defender's office, the Ohio public defender shall not be required to defend indigent persons in those counties, except as set forth in division (A) of section 120.06 of the Revised Code, or if the court finds that it is required in the interests of justice.

Effective Date: 01-13-1976

120.28 Reimbursement of joint county board.

(A) The joint county public defender commission's report to the joint board of county commissioners shall be audited by the fiscal officer of the district. The joint board of county commissioners, after review and approval of the audited report, may then certify it to the state public defender for reimbursement. If a request for the reimbursement of any operating expenditure incurred by a joint county public defender office is not received by the state public defender within sixty days after the end of the calendar month in which the expenditure is incurred, the state public defender shall not pay the requested reimbursement, unless the joint board of county commissioners has requested, and the state public defender has granted, an extension of the sixty-day time limit. Each request for reimbursement shall include a certification by the joint county public defender that all persons provided representation by the joint county public defender's office during the period covered by the request were indigent and, for each person provided representation during that period, a financial disclosure form completed by the person on a form prescribed by the state public defender. The state public defender shall also review the report and, in accordance with the standards, guidelines, and maximums established pursuant to divisions (B)(7) and (8) of section 120.04 of the Revised Code, prepare a voucher for fifty per cent of the total cost of each joint county public defender's office for the period of time covered by the certified report and a voucher for fifty per cent of the costs and expenses that are reimbursable under section 120.35 of the Revised Code, if any, or, if the amount of money appropriated by the general assembly to reimburse counties for the operation of county public defender offices, joint county public defender offices, and county appointed counsel systems is not sufficient to pay fifty per cent of the total cost of all of the offices and systems, for the lesser amount required by section 120.34 of the Revised Code. For purposes of this section, "total cost" means total expenses minus costs and expenses reimbursable under section 120.35 of the Revised Code and any funds received by the joint county public defender commission pursuant to a contract, except a contract entered into with a municipal corporation pursuant to division (E) of section 120.24 of the Revised Code, gift, or grant. Each county in the district shall be entitled to a share of such state reimbursement in proportion to the percentage of the total cost it has agreed to pay.

(B) If the joint county public defender fails to maintain the standards for the conduct of the office established by the rules of the Ohio public defender commission pursuant to divisions (B) and (C) of section 120.03 or the standards established by the state public defender pursuant to division (B)(7) of section 120.04 of the Revised Code, the Ohio public defender commission shall notify the joint county public defender commission and the board of county commissioners of each county in the district that the joint county public defender has failed to comply with its rules or the standards of the state public defender. Unless the joint public defender commission or the joint county public defender corrects the conduct of the joint county public defender's office to comply with the rules and standards within ninety days after the date of the notice, the state public defender may deny all or part of the counties' reimbursement from the state provided for in division (A) of this section.

Effective Date: 09-29-1999

120.33 Alternative system of selected or appointed counsel.

(A) In lieu of using a county public defender or joint county public defender to represent indigent persons in the proceedings set forth in division (A) of section 120.16 of the Revised Code, the board of county commissioners of any county may adopt a resolution to pay counsel who are either personally selected by the indigent person or appointed by the court. The resolution shall include those provisions the board of county commissioners considers necessary to provide effective representation of indigent persons in any proceeding for which counsel is provided under this section. The resolution shall include provisions for contracts with any municipal corporation under which the municipal corporation shall reimburse the county for counsel appointed to represent indigent persons charged with violations of the ordinances of the municipal corporation.

(1) In a county that adopts a resolution to pay counsel, an indigent person shall have the right to do either of the following:

(a) To select the person's own personal counsel to represent the person in any proceeding included within the provisions of the resolution;

(b) To request the court to appoint counsel to represent the person in such a proceeding.

(2) The court having jurisdiction over the proceeding in a county that adopts a resolution to pay counsel shall, after determining that the person is indigent and entitled to legal representation under this section, do either of the following:

(a) By signed journal entry recorded on its docket, enter the name of the lawyer selected by the indigent person as counsel of record;

(b) Appoint counsel for the indigent person if the person has requested the court to appoint counsel and, by signed journal entry recorded on its dockets, enter the name of the lawyer appointed for the indigent person as counsel of record.

(3) The board of county commissioners shall establish a schedule of fees by case or on an hourly basis to be paid to counsel for legal services provided pursuant to a resolution adopted under this section. Prior to establishing the schedule, the board of county commissioners shall request the bar association or associations of the county to submit a proposed schedule. The schedule submitted shall be subject to the review, amendment, and approval of the board of county commissioners.

(4) Counsel selected by the indigent person or appointed by the court at the request of an indigent person in a county that adopts a resolution to pay counsel, except for counsel appointed to represent a person charged with any violation of an ordinance of a municipal corporation that has not contracted with the county commissioners for the payment of appointed counsel, shall be paid by the county and shall receive the compensation and expenses the court approves. Each request for payment shall be accompanied by a financial disclosure form and an affidavit of indigency that are completed by the indigent person on forms prescribed by the state public defender. Compensation and expenses shall not exceed the amounts fixed by the board of county commissioners in the schedule adopted pursuant to division (A)(3) of this section. No court shall approve compensation and expenses that exceed the amount fixed pursuant to division (A)(3) of this section.

The fees and expenses approved by the court shall not be taxed as part of the costs and shall be paid by the county. However, if the person represented has, or may reasonably be expected to have, the means to meet some part of the cost of the services rendered to the person, the person shall pay the county an amount that the person reasonably can be expected to pay. Pursuant to section 120.04 of the Revised Code, the county shall pay to the state public defender a percentage of the payment received from the person in an amount proportionate to the percentage of the costs of the person's case that were paid to the county by the state public defender pursuant to this section. The money paid to the state public defender shall be credited to the client payment fund created pursuant to division (B)(5) of section 120.04 of the Revised Code.

The county auditor shall draw a warrant on the county treasurer for the payment of counsel in the amount fixed by the court, plus the expenses the court fixes and certifies to the auditor. The county auditor shall report periodically, but not less than annually, to the board of county commissioners and to the state public defender the amounts paid out pursuant to the approval of the court. The board of county commissioners, after review and approval of the auditor's report, or the county auditor, with permission from and notice to the board of county commissioners, may then certify it to the state public defender for reimbursement. The state public defender may pay a requested reimbursement only if the request for reimbursement is accompanied by a financial disclosure form and an affidavit of indigency completed by the indigent person on forms prescribed by the state public defender or if the court certifies by electronic signature as prescribed by the state public defender that a financial disclosure form and affidavit of indigency have been completed by the indigent person and are available for inspection. If a request for the reimbursement of the cost of counsel in any case is not received by the state public defender within ninety days after the end of the calendar month in which the case is finally disposed of by the court, unless the county has requested and the state public defender has granted an extension of the ninety-day limit, the state public defender shall not pay the requested reimbursement. The state public defender shall also review the report and, in accordance with the standards, guidelines, and maximums established pursuant to divisions (B)(7) and (8) of section 120.04 of the Revised Code, prepare a voucher for fifty per cent of the total cost of each county appointed counsel system in the period of time covered by the certified report and a voucher for fifty per cent of the costs and expenses that are reimbursable under section 120.35 of the Revised Code, if any, or, if the amount of money appropriated by the general assembly to reimburse counties for the operation of county public defender offices, joint county public defender offices, and county appointed counsel systems is not sufficient to pay fifty per cent of the total cost of all of the offices and systems other than costs and expenses that are reimbursable under section 120.35 of the Revised Code, for the lesser amount required by section 120.34 of the Revised Code.

(5) If any county appointed counsel system fails to maintain the standards for the conduct of the system established by the rules of the Ohio public defender commission pursuant to divisions (B) and (C) of section 120.03 or the standards established by the state public defender pursuant to division (B)(7) of section 120.04 of the Revised Code, the Ohio public defender commission shall notify the board of county commissioners of the county that the county appointed counsel system has failed to comply with its rules or the standards of the state public defender. Unless the board of county commissioners corrects the conduct of its appointed counsel system to comply with the rules and standards within ninety days after the date of the notice, the state public defender may deny all or part of the county's reimbursement from the state provided for in division (A)(4) of this section.

(B) In lieu of using a county public defender or joint county public defender to represent indigent persons in the proceedings set forth in division (A) of section 120.16 of the Revised Code, and in lieu of adopting the resolution and following the procedure described in division (A) of this section, the board of county commissioners of any county may contract with the state public defender for the state public defender's legal representation of indigent persons. A contract entered into pursuant to this division may provide for payment for the services provided on a per case, hourly, or fixed contract basis.

(C) If a court appoints an attorney pursuant to this section to represent a petitioner in a postconviction relief proceeding under section 2953.21 of the Revised Code, the petitioner has received a sentence of death, and the proceeding relates to that sentence, the attorney who represents the petitioner in the proceeding pursuant to the appointment shall be certified under Rule 20 of the Rules of Superintendence for the Courts of Ohio to represent indigent defendants charged with or convicted of an offense for which the death penalty can be or has been imposed.

Effective Date: 09-05-2001; 2007 HB119 09-29-2007

120.34 Reimbursements exceeding appropriation - proportionate distribution of funds.

The total amount of money paid to all counties in any fiscal year pursuant to sections 120.18 , 120.28 , and 120.33 of the Revised Code for the reimbursement of a percentage of the counties' cost of operating county public defender offices, joint county public defender offices, and county appointed counsel systems shall not exceed the total amount appropriated for that fiscal year by the general assembly for the reimbursement of the counties for the operation of the offices and systems. If the amount appropriated by the general assembly in any fiscal year is insufficient to pay fifty per cent of the total cost in the fiscal year of all county public defender offices, all joint county public defender offices, and all county appointed counsel systems, the amount of money paid in that fiscal year pursuant to sections 120.18 , 120.28 , and 120.33 of the Revised Code to each county for the fiscal year shall be reduced proportionately so that each county is paid an equal percentage of its total cost in the fiscal year for operating its county public defender system, its joint county public defender system, and its county appointed counsel system.

The total amount of money paid to all counties in any fiscal year pursuant to section 120.35 of the Revised Code for the reimbursement of a percentage of the counties' costs and expenses of conducting the defense in capital cases shall not exceed the total amount appropriated for that fiscal year by the general assembly for the reimbursement of the counties for conducting the defense in capital cases. If the amount appropriated by the general assembly in any fiscal year is insufficient to pay fifty per cent of the counties' total costs and expenses of conducting the defense in capital cases in the fiscal year, the amount of money paid in that fiscal year pursuant to section 120.35 of the Revised Code to each county for the fiscal year shall be reduced proportionately so that each county is paid an equal percentage of its costs and expenses of conducting the defense in capital cases in the fiscal year.

If any county receives an amount of money pursuant to section 120.18 , 120.28 , 120.33 , or 120.35 of the Revised Code that is in excess of the amount of reimbursement it is entitled to receive pursuant to this section, the state public defender shall request the board of county commissioners to return the excess payment and the board of county commissioners, upon receipt of the request, shall direct the appropriate county officer to return the excess payment to the state.

Within thirty days of the end of each fiscal quarter, the state public defender shall provide to the office of budget and management and the legislative budget office of the legislative service commission an estimate of the amount of money that will be required for the balance of the fiscal year to make the payments required by sections 120.18 , 120.28 , 120.33 , and 120.35 of the Revised Code.

Effective Date: 07-01-1983

120.35 Capital case reimbursement.

The state public defender shall, pursuant to section 120.18 , 120.28 , 120.33 , or 2941.51 of the Revised Code, reimburse fifty per cent of all costs and expenses of conducting the defense in capital cases. If appropriations are insufficient to pay fifty per cent of such costs and expenses, the state public defender shall reimburse such costs and expenses as provided in section 120.34 of the Revised Code.

Effective Date: 07-01-1983

120.36 Application fee - assessment - nonpayment - disposition - annual report.

(A)

(1) Subject to division (A)(2), (3), (4), (5), or (6) of this section, if a person who is a defendant in a criminal case or a party in a case in juvenile court requests or is provided a state public defender, a county or joint county public defender, or any other counsel appointed by the court, the court in which the criminal case is initially filed or the juvenile court, whichever is applicable, shall assess, unless the application fee is waived or reduced, a non-refundable application fee of twenty-five dollars.

The court shall direct the person to pay the application fee to the clerk of court. The person shall pay the application fee to the clerk of court at the time the person files an affidavit of indigency or a financial disclosure form with the court, a state public defender, a county or joint county public defender, or any other counsel appointed by the court or within seven days of that date. If the person does not pay the application fee within that seven-day period, the court shall assess the application fee at sentencing or at the final disposition of the case.

(2) For purposes of this section, a criminal case includes any case involving a violation of any provision of the Revised Code or of an ordinance of a municipal corporation for which the potential penalty includes loss of liberty and includes any contempt proceeding in which a court may impose a term of imprisonment.

(3) In a juvenile court proceeding, the court shall not assess the application fee against a child if the court appoints a guardian ad litem for the child or the court appoints an attorney to represent the child at the request of a guardian ad litem.

(4) The court shall not assess an application fee for a postconviction proceeding or when the defendant files an appeal.

(5)

(a) Except when the court assesses an application fee pursuant to division (A)(5)(b) of this section, the court shall assess an application fee when a person is charged with a violation of a community control sanction or a violation of a post-release control sanction.

(b) If a charge of violating a community control sanction or post-release control sanction described in division (A)(5)(a) of this section results in a person also being charged with violating any provision of the Revised Code or an ordinance of a municipal corporation, the court shall only assess an application fee for the case that results from the additional charge.

(6) If a case is transferred from one court to another court and the person failed to pay the application fee to the court that initially assessed the application fee, the court that initially assessed the fee shall remove the assessment, and the court to which the case was transferred shall assess the application fee.

(7) The court shall assess an application fee pursuant to this section one time per case. For purposes of assessing the application fee, a case means one complete proceeding or trial held in one court for a person on an indictment, information, complaint, petition, citation, writ, motion, or other document initiating a case that arises out of a single incident or a series of related incidents, or when one individual is charged with two or more offenses that the court handles simultaneously. The court may waive or reduce the fee for a specific person in a specific case upon a finding that the person lacks financial resources that are sufficient to pay the fee or that payment of the fee would result in an undue hardship.

(B) No court, state public defender, county or joint county public defender, or other counsel appointed by the court shall deny a person the assistance of counsel solely due to the person's failure to pay the application fee assessed pursuant to division (A) of this section. A person's present inability, failure, or refusal to pay the application fee shall not disqualify that person from legal representation.

(C) The application fee assessed pursuant to division (A) of this section is separate from and in addition to any other amount assessed against a person who is found to be able to contribute toward the cost of the person's legal representation pursuant to division (D) of section 2941.51 of the Revised Code.

(D) The clerk of the court that assessed the fees shall forward all application fees collected pursuant to this section to the county treasurer for deposit in the county treasury. The county shall retain eighty per cent of the application fees so collected to offset the costs of providing legal representation to indigent persons. Not later than the last day of each month, the county auditor shall remit twenty per cent of the application fees so collected in the previous month to the state public defender. The state public defender shall deposit the remitted fees into the state treasury to the credit of the client payment fund created pursuant to division (B)(5) of section 120.04 of the Revised Code. The state public defender may use that money in accordance with that section.

(E) On or before the twentieth day of each month beginning in February of the year 2007, each clerk of court shall provide to the state public defender a report including all of the following:

(1) The number of persons in the previous month who requested or were provided a state public defender, county or joint county public defender, or other counsel appointed by the court;

(2) The number of persons in the previous month for whom the court waived the application fee pursuant to division (A) of this section;

(3) The dollar value of the application fees assessed pursuant to division (A) of this section in the previous month;

(4) The amount of assessed application fees collected in the previous month;

(5) The balance of unpaid assessed application fees at the open and close of the previous month.

(F) As used in this section:

(1) "Clerk of court" means the clerk of the court of common pleas of the county, the clerk of the juvenile court of the county, the clerk of the domestic relations division of the court of common pleas of the county, the clerk of the probate court of the county, the clerk of a municipal court in the county, the clerk of a county-operated municipal court, or the clerk of a county court in the county, whichever is applicable.

(2) "County-operated municipal court" has the same meaning as in section 1901.03 of the Revised Code.

Effective Date: 09-29-2005; 06-30-2006

120.38 Attorney-client privilege.

(A) All information obtained by a public defender when determining if a person is indigent, shall be held confidential within the ethical standards of attorney-client communications, unless previously on public record, or made available to the court as provided in section 120.05 of the Revised Code.

(B) All communications between the individual defendant and a public defender shall be fully protected by the attorney-client privilege to the same extent and degree as though counsel had been privately engaged.

Effective Date: 01-13-1976

120.39 Conflict of interest.

(A) Except as provided in division (B) of this section, counsel appointed by the court, co-counsel appointed to assist the state public defender or a county or joint county public defender, and any public defender, county public defender, or joint county defender, or member of their offices, shall not be a partner or employee of any prosecuting attorney, city director of law, village solicitor, or similar chief legal officer.

(B) A partner or employee of a village solicitor or of a law firm, legal professional association, or legal clinic with which the village solicitor is affiliated may be appointed by the court, assist a public defender, or serve as public defender in any criminal proceedings in which the village solicitor is not acting as prosecuting attorney.

(C) No prosecuting attorney, city director of law or similar officer or their assistants and employees, and no judge or court employee shall serve on the state public defender commission, or any county or joint county public defender commission.

Effective Date: 03-15-1982

120.40 Pay ranges.

(A) The pay ranges established by the board of county commissioners for the county public defender and those established by the joint board of county commissioners for the joint county public defender shall not exceed the pay ranges assigned under section 325.11 of the Revised Code for county prosecutors.

(B) The pay ranges established by the board of county commissioners for the staff of the county public defender and those established by the joint board of county commissioners for the staff of the joint county public defender shall not exceed the pay ranges assigned under section 124.14 of the Revised Code for comparable positions of the staff of the Ohio public defender.

Amended by 129th General AssemblyFile No.28, HB 153, §101.01, eff. 1/1/2012.

Effective Date: 01-13-1976

120.41 Indemnifying public defender in malpractice action.

(A) In connection with any malpractice action filed against a state, county, or joint county public defender or assistant public defender, the state, or the county or district in which the defender office is located when the action is brought against a county or joint county public defender or assistant public defender, shall indemnify the attorney, if he acted in good faith and in the scope of his employment, for any judgment awarded in the malpractice action or amount negotiated in settlement of the malpractice claim asserted in the action, and for any court costs or legal fees incurred in the defense of the malpractice claim asserted in the action.

(B)

(1) In connection with any malpractice action filed against an attorney who was either personally selected by an indigent person or appointed by a court pursuant to section 120.33 of the Revised Code, the attorney shall be indemnified in accordance with division (B) of this section for any judgment awarded in the malpractice action or amount negotiated in settlement of the malpractice claim asserted in the action, and for any court costs or legal fees incurred in defense of the malpractice claim asserted in the action.

(2) Subject to division (B)(3) of this section, an indemnification as described in division (B)(1) of this section shall be accomplished only through the following procedure:

(a) The attorney who was either personally selected by an indigent person or appointed by a court pursuant to section 120.33 of the Revised Code, or his counsel in the malpractice action, shall file with the attorney general a request for indemnification pursuant to division (B)(1) of this section, which shall be accompanied by the following types of supportive documentation to the extent that they relate to the request for indemnification:

(i) A certified copy of the judgment entry in the malpractice action;

(ii) A signed copy of any settlement agreement entered into between the parties to the malpractice action;

(iii) A written itemization of all court costs and legal fees incurred in the defense of the malpractice claim asserted in the action.

(b) Upon receipt of a request for indemnification and the requisite supportive documentation required by division (B)(2)(a) of this section, the attorney general shall review the request and documentation; determine whether any of the limitations specified in division (B)(3) of this section apply to the requested indemnification; and, if an indemnification in any amount is permitted under division (B)(1) of this section after applying those limitations, prepare an indemnity agreement. The indemnity agreement shall specify whether the indemnification will be for a judgment awarded in a malpractice action, an amount negotiated in settlement of the malpractice claim asserted in a malpractice action, court costs or legal fees incurred in the defense of the malpractice claim asserted in a malpractice action, or a combination of those items. The indemnity agreement additionally shall specify the total amount of permissible indemnification as determined by the attorney general; itemize the portions of the permissible indemnification that represent the judgment, settlement, court costs, or legal fees covered by the indemnity agreement; specify any limitations applied pursuant to division (B)(3) of this section to reduce the amount of indemnification sought by the attorney involved; name the persons to whom the entire permissible indemnification or portions of it will be paid; state that the permissible indemnification is payable from the state treasury pursuant to division (B)(2)(c) of this section; and be approved by the inclusion of the signatures of the attorney general and the attorney involved.

(c) The attorney general shall forward a copy of the indemnity agreement prepared pursuant to division (B)(2)(b) of this section to the director of budget and management. The director shall make application for the payment of the amount of the permissible indemnification out of the emergency purposes account or any other appropriation for emergencies or contingencies, and payment out of that account or any other appropriation for emergencies or contingencies shall be authorized if there are sufficient moneys greater than the sum total of then pending emergency purposes account requests, or requests for releases from the other appropriation. If sufficient moneys exist in the emergency purposes account or any other appropriation for emergencies or contingencies to pay the permissible indemnification, the director shall cause payment of the appropriate amounts specified in the indemnity agreement to be made to the persons named in it. If sufficient moneys do not exist in the emergency purposes account or any other appropriation for emergencies or contingencies to pay the permissible indemnification, the attorney involved or his counsel in the malpractice action shall request the general assembly to make an appropriation sufficient to pay the indemnification, and no payment shall be made until the appropriation has been made. The attorney involved or his counsel in the malpractice action shall make the request during the current biennium and during each succeeding biennium until a sufficient appropriation is made.

(3) An indemnification pursuant to divisions (B)(1) and (2) of this section is subject to the following limitations:

(a) The maximum aggregate amount of the indemnification, whether paid to or on behalf of the attorney who was either personally selected by an indigent person or appointed by a court pursuant to section 120.33 of the Revised Code, shall be one million dollars per occurrence, regardless of the number of persons who suffer injury, death, or loss to person or property as a result of the malpractice involved.

(b) The attorney described in division (B)(3)(a) of this section shall not be indemnified to the extent of any amounts covered by a policy of malpractice insurance, for any portion of a judgment that represents punitive or exemplary damages, for any portion of an amount negotiated in settlement of a malpractice claim that is unreasonable, or for any amount described in division (B)(1) of this section unless he acted in good faith and in the scope of his employment.

(c) The attorney described in division (B)(3)(a) of this section shall be indemnified only for the portion of legal fees that is reasonable.

(4) If, pursuant to division (B)(2) of this section, the attorney general denies any indemnification to an attorney who was either personally selected by an indigent person or appointed by a court pursuant to section 120.33 of the Revised Code because of the application of a limitation specified in division (B)(3) of this section, he shall notify that attorney or his counsel in the malpractice action in writing of the denial and of the limitation applied.

(5) If, pursuant to division (B)(4) of this section, an attorney who was either personally selected by an indigent person or appointed by a court pursuant to section 120.33 of the Revised Code or his counsel in the malpractice action receives a denial of indemnification notification, or if that attorney refuses to approve an indemnity agreement under division (B)(2) of this section because of the proposed application of a limitation specified in division (B)(3) of this section, the attorney may commence a civil action against the attorney general in the court of claims to prove his entitlement to the indemnification sought, to prove that division (B)(3) of this section does not prohibit or otherwise limit the indemnification sought, and to recover a judgment for the amount of indemnification sought. A civil action under this division shall be commenced no later than two years after the receipt of a denial of indemnification notification or, if the attorney refused to approve an indemnity agreement under division (B)(2) of this section because of the proposed application of a limitation specified in division (B)(3) of this section, no later than two years after the refusal. Any judgment of the court of claims in favor of the attorney shall be paid from the state treasury in accordance with division (B)(2) of this section.

(C) In connection with any malpractice action filed against an attorney who has contracted with the Ohio public defender commission or the state public defender, pursuant to authority granted by this chapter, to provide legal services to indigent or other persons, the state shall indemnify the attorney, if he acted in good faith and in the scope of his employment, for any judgment awarded in the malpractice action or amount negotiated in settlement of the malpractice claim asserted in the action, and for any court costs or legal fees incurred in the defense of the malpractice claim asserted in the action.

Effective Date: 05-01-1992

120.51 Legal aid society funding definitions.

As used in sections 120.51 to 120.55 of the Revised Code:

(A) "Legal aid society" means a nonprofit corporation that satisfies all of the following:

(1) It is chartered to provide general legal services to the poor, it is incorporated and operated exclusively in this state, its primary purpose or function is to provide civil legal services, without charge, to indigents, and, in addition to providing civil legal services to indigents, it may provide legal training or legal technical assistance to other legal aid societies in this state.

(2) It has a board of trustees, a majority of its board of trustees are attorneys, and at least one-third of its board of trustees, when selected, are eligible to receive legal services from the legal aid society.

(3) It receives funding from the legal services corporation or otherwise provides civil legal services to indigents.

(B) "Indigent" means a person or persons whose income is not greater than one hundred twenty-five per cent of the current poverty threshold established by the United States office of management and budget.

(C) "Fee generating case" means any case or matter which, if undertaken on behalf of an indigent by an attorney in private practice, reasonably would be expected to result in payment of a fee for legal services from an award to a client, from public funds, or from the opposing party. A case shall not be considered a fee generating case if adequate representation is unavailable or if any of the following circumstances exist concerning the case:

(1) The legal aid society that represents the indigent in the case has determined that free referral is not possible for any of the following reasons:

(a) The case has been rejected by the local lawyer referral service, or if there is no such service, by two attorneys in private practice who have experience in the subject matter of the case.

(b) Neither the local lawyer referral service, if one exists, nor any attorney will consider the case without payment of a consultation fee.

(c) The case is of a type that attorneys in private practice in the area ordinarily do not accept, or do not accept without prepayment of a fee.

(d) Emergency circumstances compel immediate action before referral can be made, but the client is advised that, if appropriate and consistent with professional responsibility, referral will be attempted at a later time.

(2) Recovery of damages is not the principal object of the case and a request for damages is merely ancillary to an action for equitable or other nonpecuniary relief, or inclusion of a counterclaim requesting damages is necessary for effective defense or because of applicable rules governing joinder of counterclaims.

(3) A court has appointed a legal aid society or its employee to represent the indigent in the case pursuant to a statute, or a court rule or practice of equal applicability to all attorneys in the jurisdiction.

(4) The case involves the rights of a claimant under a publicly supported benefit program for which entitlement is based on need.

Effective Date: 12-04-1995

120.52 Legal aid fund.

There is hereby established in the state treasury the legal aid fund, which shall be for the charitable public purpose of providing financial assistance to legal aid societies that provide civil legal services to indigents. The fund shall contain all funds credited to it by the treasurer of state pursuant to sections 1901.26 , 1907.24 , 2303.201 , 3953.231 , 4705.09 , and 4705.10 of the Revised Code .

The treasurer of state may invest moneys contained in the legal aid fund in any manner authorized by the Revised Code for the investment of state moneys. However, no such investment shall interfere with any apportionment, allocation, or payment of moneys as required by section 120.53 of the Revised Code.

The state public defender, through the Ohio legal assistance foundation, shall administer the payment of moneys out of the fund. Four and one-half per cent of the moneys in the fund shall be reserved for the actual, reasonable costs of administering sections 120.51 to 120.55 and sections 1901.26 , 1907.24 , 2303.201 , 3953.231 , 4705.09 , and 4705.10 of the Revised Code. Moneys that are reserved for administrative costs but that are not used for actual, reasonable administrative costs shall be set aside for use in the manner described in division (A) of section 120.521 of the Revised Code. The remainder of the moneys in the legal aid fund shall be distributed in accordance with section 120.53 of the Revised Code. The Ohio legal assistance foundation shall establish, in accordance with Chapter 119. of the Revised Code, rules governing the administration of the legal aid fund, including the programs established under sections 1901.26 , 1907.24 , 2303.201 , 4705.09 , and 4705.10 of the Revised Code regarding interest on interest-bearing trust accounts of an attorney, law firm, or legal professional association.

Effective Date: 12-04-1995; 10-01-2005; 06-30-2006

120.521 Legal assistance foundation - fund.

(A) The state public defender shall establish a charitable, tax exempt foundation, named the Ohio legal assistance foundation, to actively solicit and accept gifts, bequests, donations, and contributions for use in providing financial assistance to legal aid societies, enhancing or improving the delivery of civil legal services to indigents, and operating the foundation. The Ohio legal assistance foundation shall deposit all gifts, bequests, donations, and contributions accepted by it into the legal assistance foundation fund established under this section. If the state public defender, pursuant to section 120.52 of the Revised Code as it existed prior to the effective date of this section, established a charitable, tax exempt foundation named the Ohio legal assistance foundation and if that foundation is in existence on the day before the effective date of this section, that foundation shall continue in existence and shall serve as the Ohio legal assistance foundation described in this section.

There is hereby established the legal assistance foundation fund, which shall be under the custody and control of the Ohio legal assistance foundation. The fund shall contain all moneys distributed to the Ohio legal assistance foundation pursuant to section 120.53 of the Revised Code and all gifts, bequests, donations, and contributions accepted by the Ohio legal assistance foundation under this section.

The Ohio legal assistance foundation shall distribute or use all moneys in the legal assistance foundation fund for the charitable public purpose of providing financial assistance to legal aid societies that provide civil legal services to indigents, enhancing or improving the delivery of civil legal services to indigents, and operating the foundation. The Ohio legal assistance foundation shall establish rules governing the administration of the legal assistance foundation fund.

The Ohio legal assistance foundation shall include, in the annual report it is required to make to the governor, the general assembly, and the supreme court pursuant to division (G)(2) of section 120.53 of the Revised Code, an audited financial statement on the distribution and use of the legal assistance foundation fund. No information contained in the statement shall identify or enable the identification of any person served by a legal aid society or in any way breach confidentiality.

(B) A foundation is tax exempt for purposes of this section if the foundation is exempt from federal income taxation under subsection 501(a) of the "Internal Revenue Code of 1986," 100 Stat. 2085, 26 U.S.C. 501(a) , as amended, and if the foundation has received from the internal revenue service a determination letter that is in effect stating that the foundation is exempt from federal income taxation under that subsection.

Effective Date: 06-30-1995; 06-30-2006

120.53 Application for financial assistance.

(A) A legal aid society that operates within the state may apply to the Ohio legal assistance foundation for financial assistance from the legal aid fund established by section 120.52 of the Revised Code to be used for the funding of the society during the calendar year following the calendar year in which application is made.

(B) An application for financial assistance made under division (A) of this section shall be submitted by the first day of November of the calendar year preceding the calendar year for which financial assistance is desired and shall include all of the following:

(1) Evidence that the applicant is incorporated in this state as a nonprofit corporation;

(2) A list of the trustees of the applicant;

(3) The proposed budget of the applicant for these funds for the following calendar year;

(4) A summary of the services to be offered by the applicant in the following calendar year;

(5) A specific description of the territory or constituency served by the applicant;

(6) An estimate of the number of persons to be served by the applicant during the following calendar year;

(7) A general description of the additional sources of the applicant's funding;

(8) The amount of the applicant's total budget for the calendar year in which the application is filed that it will expend in that calendar year for legal services in each of the counties it serves;

(9) A specific description of any services, programs, training, and legal technical assistance to be delivered by the applicant or by another person pursuant to a contract with the applicant, including, but not limited to, by private attorneys or through reduced fee plans, judicare panels, organized pro bono programs, and mediation programs.

(C) The Ohio legal assistance foundation shall determine whether each applicant that filed an application for financial assistance under division (A) of this section in a calendar year is eligible for financial assistance under this section. To be eligible for such financial assistance, an applicant shall satisfy the criteria for being a legal aid society and shall be in compliance with the provisions of sections 120.51 to 120.55 of the Revised Code and with the rules and requirements the foundation establishes pursuant to section 120.52 of the Revised Code. The Ohio legal assistance foundation then, on or before the fifteenth day of December of the calendar year in which the application is filed, shall notify each such applicant, in writing, whether it is eligible for financial assistance under this section, and if it is eligible, estimate the amount that will be available for that applicant for each six-month distribution period, as determined under division (D) of this section.

(D) The Ohio legal assistance foundation shall allocate moneys contained in the legal aid fund monthly for distribution to applicants that filed their applications in the previous calendar year and are determined to be eligible applicants.

All moneys contained in the fund on the first day of each month shall be allocated, after deduction of the costs of administering sections 120.51 to 120.55 and sections 1901.26 , 1907.24 , 2303.201 , 3953.231 , 4705.09 , and 4705.10 of the Revised Code that are authorized by section 120.52 of the Revised Code, according to this section and shall be distributed accordingly not later than the last day of the month following the month the moneys were received. In making the allocations under this section, the moneys in the fund that were generated pursuant to sections 1901.26 , 1907.24 , 2303.201 , 3953.231 , 4705.09 , and 4705.10 of the Revised Code shall be apportioned as follows:

(1) After deduction of the amount authorized and used for actual, reasonable administrative costs under section 120.52 of the Revised Code:

(a) Five per cent of the moneys remaining in the fund shall be reserved for use in the manner described in division (A) of section 120.521 of the Revised Code or for distribution to legal aid societies that provide assistance to special population groups of their eligible clients, engage in special projects that have a substantial impact on their local service area or on significant segments of the state's poverty population, or provide legal training or support to other legal aid societies in the state;

(b) After deduction of the amount described in division (D)(1)(a) of this section, one and three-quarters per cent of the moneys remaining in the fund shall be apportioned among entities that received financial assistance from the legal aid fund prior to July 1, 1993, but that, on and after July 1, 1993, no longer qualify as a legal aid society that is eligible for financial assistance under this section.

(c) After deduction of the amounts described in divisions (D)(1)(a) and (b) of this section, fifteen per cent of the moneys remaining in the fund shall be placed in the legal assistance foundation fund for use in the manner described in division (A) of section 120.521 of the Revised Code.

(2) After deduction of the actual, reasonable administrative costs under section 120.52 of the Revised Code and after deduction of the amounts identified in divisions (D)(1)(a), (b), and (c) of this section, the remaining moneys shall be apportioned among the counties that are served by eligible legal aid societies that have applied for financial assistance under this section so that each such county is apportioned a portion of those moneys, based upon the ratio of the number of indigents who reside in that county to the total number of indigents who reside in all counties of this state that are served by eligible legal aid societies that have applied for financial assistance under this section. Subject to division (E) of this section, the moneys apportioned to a county under this division then shall be allocated to the eligible legal aid society that serves the county and that has applied for financial assistance under this section. For purposes of this division, the source of data identifying the number of indigent persons who reside in a county shall be selected by the Ohio legal assistance foundation from the best available figures maintained by the United States census bureau.

(E) If the Ohio legal assistance foundation, in attempting to make an allocation of moneys under division (D)(2) of this section, determines that a county that has been apportioned money under that division is served by more than one eligible legal aid society that has applied for financial assistance under this section, the Ohio legal assistance foundation shall allocate the moneys that have been apportioned to that county under division (D)(2) of this section among all eligible legal aid societies that serve that county and that have applied for financial assistance under this section on a pro rata basis, so that each such eligible society is allocated a portion based upon the amount of its total budget expended in the prior calendar year for legal services in that county as compared to the total amount expended in the prior calendar year for legal services in that county by all eligible legal aid societies that serve that county and that have applied for financial assistance under this section.

(F) Moneys allocated to eligible applicants under this section shall be paid monthly beginning the calendar year following the calendar year in which the application is filed.

(G)

(1) A legal aid society that receives financial assistance in any calendar year under this section shall file an annual report with the Ohio legal assistance foundation detailing the number and types of cases handled, and the amount and types of legal training, legal technical assistance, and other service provided, by means of that financial assistance. No information contained in the report shall identify or enable the identification of any person served by the legal aid society or in any way breach client confidentiality.

(2) The Ohio legal assistance foundation shall make an annual report to the governor, the general assembly, and the supreme court on the distribution and use of the legal aid fund. The foundation also shall include in the annual report an audited financial statement of all gifts, bequests, donations, contributions, and other moneys the foundation receives. No information contained in the report shall identify or enable the identification of any person served by a legal aid society, or in any way breach confidentiality.

(H) A legal aid society may enter into agreements for the provision of services, programs, training, or legal technical assistance for the legal aid society or to indigent persons.

Amended by 129th General AssemblyFile No.141, HB 509, §1, eff. 9/28/2012.

Effective Date: 06-30-1995; 10-01-2005; 06-30-2006

120.54 Uses of financial assistance.

(A) A legal aid society that receives financial assistance from the legal aid fund under section 120.53 of the Revised Code shall use the financial assistance for only the following purposes:

(1) To defray the costs of providing legal services to indigents;

(2) To provide legal training and legal technical assistance to other eligible legal aid societies; and

(3) If the legal aid society has entered into an agreement pursuant to division (H) of section 120.53 of the Revised Code and in accordance with the description and list of conditions set forth in its application pursuant to division (B)(9) of that section, to provide funds for the services, programs, training, and legal technical assistance provided to the legal aid society under the contract.

(B) No financial assistance received by a legal aid society from the legal aid fund pursuant to section 120.53 of the Revised Code shall be used for the provision of legal services in relation to any criminal case or proceeding or in relation to the provision of legal assistance in any fee generating case.

Effective Date: 06-30-1995

120.55 Society to ensure conditions.

In providing legal assistance, each legal aid society that receives financial assistance from the legal aid fund under section 120.53 of the Revised Code shall ensure all of the following:

(A) The maintenance of quality service and professional standards;

(B) That no person shall interfere with any attorney funded in whole or in part by sections 120.51 to 120.55 of the Revised Code in carrying out his professional responsibility to his client as established by the rules of professional responsibility;

(C) The expenditure of the financial assistance only in accordance with sections 120.51 to 120.55 of the Revised Code;

(D) The preservation of client confidentiality.

Effective Date: 06-30-1995