Section 120.33 | Alternative system of selected or appointed counsel.

• Effective: October 17, 2019
• Latest Legislation: House Bill 166 - 133rd General Assembly

(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 for cases other than capital cases. The schedule submitted shall be subject to the review, amendment, and approval of the board of county commissioners, except with respect to capital cases. With respect to capital cases, the schedule shall provide for fees by case or on an hourly basis to be paid to counsel in the amount or at the rate set by the capital case attorney fee council pursuant to division (D) of this section, and the board of county commissioners shall approve that amount or rate.

(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. With respect to capital cases, the court shall approve compensation and expenses in accordance with the amount or at the rate set by the capital case attorney fee council pursuant to division (D) of this section. Each request for payment shall include a financial disclosure form completed by the indigent person on a form 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 includes a financial disclosure form completed by the indigent person on a form 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 has been completed by the indigent person and is 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 and the payment determination provisions of section 120.34 of the Revised Code, prepare a voucher for the cost of each county appointed counsel system in the period of time covered by the certified report and a voucher for the costs and expenses that are reimbursable under section 120.35 of the Revised Code, if any. The amount of payments to be included in and made under the voucher shall be determined as specified in 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.

(D)(1) There is hereby created the capital case attorney fee council, appointed as described in division (D)(2) of this section. The council shall set an amount by case, or a rate on an hourly basis, to be paid under this section to counsel in a capital case.

(2) The capital case attorney fee council shall consist of five members, all of whom shall be active judges serving on one of the district courts of appeals in this state. Terms for council members shall be the lesser of three years or until the member ceases to be an active judge of a district court of appeals. The initial terms shall commence ninety days after September 28, 2016. The chief justice of the supreme court shall appoint the members of the council, and shall make all of the appointments not later than sixty days after September 28, 2016. When any vacancy occurs, the chief justice shall appoint an active judge of a district court of appeals in this state to fill the vacancy for the unexpired term, in the same manner as prescribed in this division. The chief justice shall designate a chairperson from the appointed members of the council. Members of the council shall receive no additional compensation for their service as a member, but may be reimbursed for expenses reasonably incurred in service to the council, to be paid by the supreme court. The supreme court may provide administrative support to the council.

(3) The capital case attorney fee council initially shall meet not later than one hundred twenty days after September 28, 2016. Thereafter, the council shall meet not less than annually.

(4) Upon setting the amount or rate described in division (D)(1) of this section, the chairperson of the capital case attorney fee council promptly shall provide written notice to the state public defender of the amount or rate so set. The amount or rate so set shall become effective ninety days after the date on which the chairperson provides that written notice to the state public defender. The council shall specify that effective date in the written notice provided to the state public defender. All amounts or rates set by the council shall be final, subject to modification as described in division (D)(5) of this section, and not subject to appeal.

(5) The capital case attorney fee council may modify an amount or rate set as described in division (D)(4) of this section. The provisions of that division apply with respect to any such modification of an amount or rate.

Available Versions of this Section

• September 29, 2007 – House Bill 119 - 127th General Assembly
• March 23, 2015 – House Bill 663 - 130th General Assembly
• September 28, 2016 – House Bill 390 - 131st General Assembly
• September 29, 2017 – Amended by House Bill 49 - 132nd General Assembly
• October 17, 2019 – Amended by House Bill 166 - 133rd General Assembly