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panel manual

  1. Welcome
  2. Become Familiar With Our Web Site
  3. Maintain Your Current Address & Email With Us
  4. Who is Central California Appellate Program?
  5. Classification of Cases & Appointment of Counsel
  6. Assisted Cases
  7. Independent Cases
  8. Oscillation Between Assisted & Independent Status is Normal
  9. Getting Started
  10. Compensation Claims
  11. Compensation Guidelines

 

1. WELCOME & WELCOME PACKET

Welcome to the panel of attorneys who accept appointments to represent indigent clients in criminal, juvenile delinquency, juvenile dependency and selected other appeals in the Third and Fifth Appellate Districts of the California Court of Appeal. This web manual explains the role of Central California Appellate Program (CCAP), in assisting the Third and Fifth District Courts of Appeal and appointed counsel on these appeals, and sets forth what is basically expected of appointed counsel.

Linked items within this manual will jump to related and often more detailed information, pages, or articles located within our web site or on the Internet.

In addition, to help you navigate and learn contents of the CCAP web site, we have created a packet of information for new panel attorneys that is a "nutshell" to using the resources CCAP has available to you.

pdf documentNew Panel Attorney Welcome Packet (PDF)

 

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2. BECOME FAMILIAR WITH OUR WEB SITE

CCAP’s web site and the web sites of the other appellate projects are rich resources of information for panel attorneys and should be consulted often. Posted on these web sites, for example, are new notices and instructions from the Courts of Appeal and from the appellate projects, along with other hot topics and helpful hints. The web sites are, thus, one of the best ways to make sure you have up-to-date information. However, because there are distinct procedural differences between the various Courts of Appeal (including between the Third and the Fifth), do not assume that the advisements, procedures, or tactics suggested for one court are necessarily statewide; always consult the assigned-buddy attorney with the project for the court in question. The addresses of the various appellate project web sites are posted on our Links page.

Many times a question that a new panel attorney may have can be answered by consulting the information on our site. The more familiar and comfortable you become with our site, the more answers you will find at your fingertips.

 

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3. MAINTAIN YOUR CURRENT ADDRESS & EMAIL WITH US

When you move or you change your email address, please submit an update to our office.
Please complete Page 2 of the Change of Address form for any contact-info update and send it to us:

pdf documentChange of Address / Phone / or Email (PDF)

Email is our immediate source for distributing panel and court-related announcements, tips and other panel-related information. In other words, it is appointed counsel's lifeline to what CCAP panel attorneys need to know. For this reason, when joining our panel, we require counsel to not only register for our web site, but also to elect registration for receiving the panel "Enews" -- our panel-related email announcements -- among others.

If you do not periodically receive Panel Announcement Enews via your email, please contact CCAP resources. The most common reasons for not receiving panel announcements are either an out-of-date email address, or a high setting on a spam-email filter, which blocks the ability to receive the CCAP panel-group emails. Adjusting a setting in your email program may help it to recognize panel email that otherwise looks like spam to sensitive filters.

When changing the e-Filing email address used, counsel must advise the court of the change. (Cal. Rules of Court, rule 8.76(a)(5).) In addition, advise CCAP of the update so new appointments will be sent to the court with a current email address for e-filing. Use Page 2 of the Change of Address form for this. Since there are three emails listed on the form, we appreciate your review to verify that all three email choices are still current.

 

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4. WHO IS CENTRAL CALIFORNIA APPELLATE PROGRAM?

CCAP is a nonprofit law office, created pursuant to California Rules of Court, rule 8.300(e), serving the Third and Fifth District Courts of Appeal (external links), and dedicated to improving the quality of indigent representation in criminal, juvenile, dependency and mental health appeals. Under a contract with the courts, CCAP provides administrative services to those courts, varying degrees of assistance to appointed counsel, and direct legal representation to indigent appellants under appointment order from those courts.

CCAP notifies qualifying indigent parties of the right to counsel, classifies attorneys and cases, selects and recommends to the courts the appointment of the attorney in each case, and provides training and resource materials to the panel attorneys. Our program is modeled on similar ones in other appellate districts. CCAP was established in 1987 and is located in Sacramento, California.

 

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5. CLASSIFICATION OF CASES & APPOINTMENT OF COUNSEL

When CCAP receives new cases, it first classifies them according to seriousness, difficulty, length, and any other relevant factors. For each case, except those to be retained in house, CCAP then ascertains the availability of and recommends to the court the appointment of an appropriate panel attorney.

After the court makes the appointment, CCAP sends to the client the name of appointed counsel and contact information.

CCAP does not provide panel attorneys with any assurance that they will receive as many appointments as they would like, nor enough work to make a living doing only indigent appeals. Such an assurance is not possible because the number of cases that go to each panel attorney is dependent on the overall size of the caseload, the overall size of the CCAP panel, and the qualifications of panel attorneys, as well as their individual performance on the cases they handle. The vast majority of cases appointed through CCAP are assigned to highly experienced private counsel on an "independent" basis. Some cases are assigned on an "assisted" basis to counsel with less experience, with the expectation that those panel attorneys receiving some assistance from a CCAP staff attorney will eventually be capable of handling cases on an independent basis. Appointed counsel retains ultimate control of how the case is handled whether the case is designated as either “assisted” or “independent.” CCAP provides direct representation in certain cases at the request of the Court of Appeal, and in a much smaller number of complex cases for the purposes of maintaining the level of expertise required of CCAP staff attorneys.

Appointed counsel must maintain active California bar membership throughout the life of any court-appointed appeal or inform CCAP if his or her active status changes.

 

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6. ASSISTED CASES

A. The Assistance Memo

When an appointment is made on an assisted basis, the transcripts first go to a CCAP staff attorney. That staff attorney prepares a memorandum for the appointed attorney. The memo:

  • Sets forth issues that appear to be worth pursuing;
  • Points out issues that may appear at first blush to be meritorious, but on closer examination do not appear to CCAP to be arguable;
  • Notes possible problems concerning the contents of the record or other procedural complications;
  • Provides some case citations or legal analyses as a starting point for further legal research;
  • Informs panel attorneys of filing protocols for CCAP's review of drafts, as well as for motions and briefs to be filed with the court;
  • Identifies available resource materials that may be relevant to potential issues; and
  • Sets forth some information about the work habits and expectations of the particular staff attorney.

The assistance memo is intended to offer suggestions and is a starting point only. It is not a definitive legal analysis of the case. The staff attorney will not have read the entire record. Moreover, the panel attorney often receives augmented transcripts that are not seen by the staff attorney, which may drastically affect the viability of issues identified in the assistance memo, or may result in the discovery of new issues. Even when there is no augmented record, the appointed attorney's closer reading of the record may result in properly rejecting an issue suggested in the memo, or in the discovery of issues not mentioned in the memo. The depth of the memo may depend on the experience level and prior performance of the panel attorney.

The appointed attorney always retains ultimate control of the case. Independent thinking is strongly encouraged. On the other hand, CCAP does expect the panel attorney to read the assistance memo or letter we may send and to thoroughly consider any suggestions we may make during the appeal. We also expect that when the panel attorney disagrees with a suggestion made by CCAP, he or she will contact the buddy attorney and discuss the matter.

 

B. Discussions Following the Assistance Memo

The staff attorney who prepared the assistance memo is available for communications by letter, fax, email, phone, or in person throughout the life of the case. The CCAP staff attorney is available, for example, to discuss procedural complications, the merit of potential issues, the difficulties that may arise from communication with the client or trial counsel, and the problems that may affect the appointed attorney's ability to meet CCAP or court deadlines. The panel attorney should review the panel web manual, CCAP's web site, and the Rules of Court before contacting the CCAP staff attorney assigned to the case.

 

C. The Draft of the Opening Brief

In assisted cases, the staff attorney should receive a draft of the opening brief (by mail, email, or fax) at least two weeks before the brief is due for filing. This two-week period allows the staff attorney to review the draft, make comments, and return it to the panel attorney in time for revisions and filing by the court due date. The CCAP attorney will assume that a submitted draft brief is essentially ready for filing, subject to last-minute minor details such as preparation of the tables, covers, word count, and the proof of service. In rare cases, CCAP may feel that extensive changes are necessary and require a second draft. The panel attorney may need to seek an extension of time.

Comments made regarding the draft are recommendations, not commands to be followed blindly. Staff attorneys are not offended by reasoned decisions to reject their suggestions, but CCAP does become concerned about panel attorneys who routinely reject all guidance, or who routinely leave themselves insufficient time to fairly consider the proposed changes.

In some cases, the panel attorney may decide to recommend that the appellant abandon the appeal without the preparation of an opening brief. In other cases that present no issues, the panel attorney may decide to file a Wende brief to seek review of the record by the court (People v. Wende (1979) 25 Cal.3d 436), or a Sade C./Phoenix H. brief (In re Sade C. (1997) 13 Cal.4th 952; In re Phoenix H. (2009) 47 Cal.4th 835). (See Procedures for court-preferred variations of Sade C. filings in the Third and the Fifth District Courts of Appeal). Such decisions must always be discussed with the assisting staff attorney before a final decision is made.

 

D. Assistance After the Opening Brief Is Filed

In most cases, contacts initiated by the staff attorneys decrease markedly after the filing of the opening brief. Assisted panel attorneys should feel free, however, to consult with the CCAP attorney if there is any doubt about whether a reply brief is warranted. The panel attorney should seek guidance if the Respondent's Brief introduces complications (such as claims of waiver or significant adverse consequences). If the Third District solicits a waiver of oral argument, the court will direct the panel attorney to discuss the case with CCAP before deciding whether to seek or waive oral argument. This practice is also encouraged by CCAP in Fifth District cases. Counsel should also communicate with the CCAP attorney when uncertain about whether a petition for rehearing or for review should be filed.

CCAP expects panel attorneys to use good judgment in deciding when to communicate with CCAP. Ideally, as the panel attorney gains more experience, less assistance should be required. Although counsel should not hesitate to seek CCAP's advice whenever needed, the caller should first try to resolve the problem through his or her own research. As always, suggestions by CCAP are guidance and may be given based solely on information provided by the panel attorney; the ultimate course of action to be taken is determined by the panel attorney, who is responsible for making the correct choice.

 

E. Restrictions on Use of Associate Counsel in Assisted Cases

The Appellant Indigent Defense Oversight Advisory Committee (AIDOAC) has adopted a policy that severely restricts the use of associate counsel in assisted cases. Only in rare instances will the project waive these restrictions.

(See Use of Associate Counsel policy discussion below, under "INDEPENDENT CASES")

 

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7. INDEPENDENT CASES

A. Independent Status

In cases assigned on an independent basis, the transcripts are sent directly to the panel attorney as soon as the appointment is confirmed. No assistance memo is prepared, CCAP does not review the transcripts, and in most cases there will be little or no contact unless it is initiated by the panel attorney. A staff attorney is ordinarily assigned to each independent case. The CCAP "buddy" attorney is designated on the confirmation-of-acceptance-of-appointment letter issued by CCAP at the beginning of the case. CCAP does not require that a draft opening brief be submitted in independent cases. When dealing with an especially important or complex issue, however, an independent panel attorney may ask to have a draft reviewed. In such instances, CCAP expects the panel attorney to call the staff attorney so the arrival of the draft can be anticipated and the work flow planned accordingly.

An appointment on an independent basis does not mean that all assistance should or will cease. It does mean that no CCAP attorney has read the record or prepared a memo. No draft brief is required. Counsel may still call the CCAP buddy to discuss procedural complications and issues. The panel attorney must first, however, diligently try to find the answer before resorting to a call to CCAP. In order for an attorney to receive appointments on an independent basis, he or she must demonstrate and maintain the skill and qualifications required for such appointments. An attorney who is not progressing satisfactorily or who does not maintain an acceptable level of performance will be removed from the panel.

In independent cases, although there is no assistance memo, the same principles apply. The CCAP staff attorney may suggest possible arguments and approaches, but the appointed attorney retains ultimate control over which issues will be argued and how they will be presented. Independent thinking is not only strongly encouraged, but also expected. On the other hand, CCAP expects the panel attorney to thoroughly consider any suggestions we may make during the appeal. We also expect that when the panel attorney disagrees with a suggestion made by CCAP, he or she will contact the buddy attorney and discuss the matter.

 

B . Expectations of an Independent Attorney

In deciding when a panel attorney is ready to receive cases on an independent basis, the panel attorney's performance is evaluated in several areas: basic skills; issue judgment (spotting issues that should be raised, and rejecting issues that should not be pursued); the overall quality of legal research; development and presentation of the argument; timeliness; appropriate communication with the client; and knowledge of and adherence to court and project rules and policies. An attorney's skills in all areas must instill confidence before CCAP will recommend that appointments be made on an independent basis. Even then, appointments may still be made on an assisted basis periodically, to permit CCAP to evaluate the appropriateness of the classification. Panel attorneys whose skills consistently remain weak in any area will eventually be removed from the panel.

In assessing whether an assisted panel attorney's performance has reached the point where assignments on an independent basis are appropriate, CCAP assumes that the drafts sent to CCAP are virtually what the panel attorney would be filing in the Court of Appeal if the case had been assigned on an independent basis. As a result, attorneys who routinely submit drafts that are sloppy or incomplete are not likely to reach the point where CCAP will recommend them for independent appointments. Thus, the panel attorney should take assistance suggestions seriously, and implement them not only in the commented case but in future appointments as well, where applicable. An assisted panel attorney's progress toward receiving appointments on an independent basis depends on his or her own level of performance, not simply on the finished product that has a great deal of CCAP involvement in it.

Before a panel attorney can file a Wende, Sade C./Phoenix H.brief or a request to abandon an appeal, counsel must first discuss the contemplated action with the CCAP buddy, regardless of whether the appointment was assisted or independent. Depending on the nature of the case and on prior experiences with the particular panel attorney, the staff attorney may desire only a telephonic discussion, or may ask to review part or all of the record on appeal.

 

C. AIDOAC Policy on Use of Associate Counsel

The Appellant Indigent Defense Oversight Advisory Committee (AIDOAC) has adopted a policy that severely restricts the use of associate counsel in assisted cases:

  • An attorney handling a case on an assisted basis is prohibited from using associate counsel, except under extraordinary circumstances with prior written approval of the project director; and
  • The panel attorney must submit to the project the name and California State Bar number of associate counsel.

Any such request seeking the approval of CCAP's Executive Director to use associate counsel in an assisted case should include the reasons for the request, the name, state bar number, address and telephone number of the proposed associate. ("Associate counsel" is any attorney who performs any work pertaining to the appeal assigned to the panel attorney. The term, and AIDOAC's restriction, is not limited simply to attorneys who have been formally permitted to sign pleadings as attorney of record.)

In addition, there are statewide project policies for the use of associate counsel. The projects expect that, regardless of the work performed by associate counsel, the attorney who was actually appointed:

  • Will read the entire record, reviewing for potential issues and making sure the record is adequate;
  • Will be conversant in the case and issues, and will be the only attorney in contact with the project;
  • Will file a satisfactory brief and other pleadings necessary to the case;
  • Will meet all deadlines; and,
  • Will report the extent and use of associate counsel time.

Associate counsel time is reported as a part of appointed counsel's time for a task, but that time must also be reported separately in an attachment to the claim. Download associate counsel claim attachment form (PDF).

 

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8. OSCILLATION BETWEEN ASSISTED & INDEPENDENT STATUS IS NORMAL

The decision to recommend an appointment on an assisted or an independent basis depends on the nature of the case and the experience and prior performance of the panel attorney. An attorney may be assisted in some types of cases but be independent in less complex cases.

Occasionally, after a panel attorney has been assigned several cases on an independent basis, it may become apparent that independent appointments were not appropriate. Opening briefs may not be as well-organized as they should be, or the staff attorneys may think that issues were raised that should not have been raised. CCAP may be finding arguable issues after Wende/Sade C. reviews. The panel attorney may call the staff attorneys repeatedly for advice on what seem to be routine matters. The courts' opinions may reveal that the panel attorney has seriously misstated the record or the applicable law, or has not appropriately circumvented or otherwise addressed procedural defaults (such as waiver) that bar consideration of issues raised in the briefing.

Of course, in an independent case, where CCAP has not reviewed the record, it may be difficult to tell whether there is a problem. Sometimes that question can be answered in a discussion with the panel attorney. Sometimes the concern appears only once, and other cases show no cause for concern. Other times, the same concern may appear in several cases.

While there is no hard and fast rule, in some of these situations the best way for CCAP to determine whether there really is a problem is for CCAP to go back to recommending appointments on an assisted basis. This does not mean there is definitely a problem. It does mean that CCAP needs to work more closely with the panel attorney in order to better assess whether there is a problem. When this occurs, the panel attorney may receive several cases on an assisted basis, to allow CCAP to evaluate counsel's skills in more than one case.

There may be many reasons why, occasionally, the performance of attorneys that has been consistently good may deteriorate. When CCAP sees signs of some type of distraction, cases may be assigned on an assisted basis in order to allow greater insight into the situation. Sometimes, this results in concluding there really was no problem. Also, if there was a problem, assistance in a few cases may lead to its correction. In these instances, the panel attorney may be recommended for appointments on an independent basis again soon.

CCAP does expect that a panel attorney who is experiencing a personal difficulty that may affect his or her performance on the panel will inform the designated "buddy" attorney to determine whether any ameliorative action is necessary, such as reducing the panel attorney's work load. Life crises happen. Once this has been recognized, counsel should not feel hesitant to make this call. CCAP will work with the attorney to try to reach a workable solution.

Problems can also arise when attorneys who have been handling their own appeals decide instead to rely heavily on the services of associate counsel or law clerks. In some instances this might work out satisfactorily, but it more often results in a noticeable drop in the quality of the legal work. This decline may affect the type of cases on which the panel attorney will be appointed and whether cases continue to be appointed on an independent basis, and can result in removal of the panel attorney. The use of associates by counsel in an independent case is not prohibited, but the quality of the output will be ascribed solely to the appointed attorney.

As the foregoing demonstrates, assisting panel attorneys is labor-intensive for CCAP staff attorneys. CCAP is therefore motivated to move panel attorneys from assisted to independent status as quickly as possible, or remove them if they are not progressing at a satisfactory pace.

 

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9. GETTING STARTED

There are a variety of useful pages and articles on our web site for new panel attorneys:

 

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10. COMPENSATION CLAIMS

California Penal Code section 1241 provides that appointed counsel shall receive a reasonable sum for compensation and necessary expenses in an amount to be determined by the court. In most cases, the duty to review and evaluate compensation claims has been delegated to CCAP, under supervision of the AIDOAC, the Administrative Office of the Courts (AOC), and the Third and Fifth District Courts of Appeal. CCAP makes recommendations to the AOC for compensation of counsel and reimbursement of expenses in both “assisted” and “independent” cases. In an effort to provide uniform statewide standards, the Chief Justice and the Administrative Presiding Justices have approved the “Guidelines” that CCAP and the appellate projects in other appellate districts of California use as a basis for fee recommendations. We will notify you of any revisions to these Guidelines and will post changes on our web site on the Claims Page.

Compensation claims are randomly audited by AIDOAC. The quarterly audits can result in adjustments of awards upward or downward beyond any cuts or adjustments already made by CCAP. When AIDOAC authorizes a negative adjustment to a claim after payment of the final claim has already been made, counsel will be informed of the amount of and reason for the adjustment, and the adjustment amount will be deducted from counsel’s next compensation claim. On the other hand, if AIDOAC restores time cut by the project, a reimbursement for the restored time will be processed by the project.

 

A. Interim Claims

Interim claims may be made after the Appellant’s Opening Brief has been filed, except when the case involves a Wende brief or Sade C./Phoenix H. brief. (See below under “Final Claims.”) Usually, a case has only one interim and one final claim. However, when the record in a case is 7,500 pages or more, an interim claim may be submitted after completion of record review, with a second interim submitted after the filing of the Opening Brief. Otherwise, special permission from the project must be obtained before filing multiple interim claims in a case.

Interim claims are paid based on 95 percent of the approved attorney hours plus 100 percent of the approved reimbursable expenses. The 5 percent hold-back on hours provides a “safety net” for the rare cases in which CCAP’s review of the final claim would result in a cut larger than the final claim itself.

 

B. Final Claims

A final claim should be submitted upon completion of services, usually after the opinion is filed, unless a petition for rehearing or review or other work is contemplated. A final claim may also be filed in cases where the attorney of record has been relieved. (See Relieved Counsel, below.) Because the AOC’s statistics are based on cases that have been completed and closed, counsel needs to make sure to file a final claim promptly. The AOC expects the final claim to be submitted not later than 180 days following the Court of Appeal opinion.

For a case in which a Wende brief or Sade C./Phoenix H. brief has been filed, a single final claim is appropriate. The timing for such a claim must take into account the appellant’s right to file a brief on his or her own behalf (generally 30 days following the filing of the Wende brief or Sade C./Phoenix H. brief). If the court asks for issues to be briefed, counsel may file a supplemental final claim thereafter. If counsel elects to file the claim before the court issues its opinion in such a case, time may not be claimed for reading the opinion or for any work done after the claim is filed unless the court requests supplemental briefing. (Note: CCAP may call counsel if we have not received a copy of the court's Sade C./Phoenix H. dismissal order, as the dismissal date is required in order to submit the final claim to the AOC.)

 

C. Relieved Counsel

Relieved counsel may be compensated under certain conditions. For example, payment may be allowed if counsel was relieved for reasons beyond his or her own control, e.g., if the client died or unexpectedly retained private counsel, or if the attorney suffered a catastrophic debilitating accident. However, if the reason was personal to the attorney and for his or her own benefit, e.g., taking a new job or decreasing his or her heavy caseload, usually no compensation is awarded. An exception may be made for work that has actually saved successor counsel time, such as an augment request that was granted, a draft statement of case and facts, or research notes provided to new counsel. The time saved is the measure of the award.

 

D. Supplemental Claims

Supplemental claims, either interim or final, may be filed only after obtaining CCAP or court permission upon a showing of good cause. An example of good cause would be where counsel has had to perform substantial and unforeseeable required services after the remittitur has issued.

 

E. Statewide Hourly Compensation Rates for Appointed Counsel

Compensation rates for appointed cases are determined based on both case criteria and the appointment date. To determine the applicable rate, please use the steps-calculator on our Rate Information page.

 

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11. COMPENSATION GUIDELINES

The statewide compensation Guidelines may change from time to time. The latest version is posted on our web site on the Claims Page.

The Guidelines are just that, simply guidelines. Every case is different; the difficulty of a specific task will determine whether compensation will be above or below the guidelines.

 

A. Helpful standards related to claims:

  1. No line-item guideline results in an automatic right to compensation of the guideline amount. The underlying question addressed by those evaluating claims is, “How much time would a reasonably experienced appellate attorney require to complete the tasks necessary in the particular case?”
  2. If the amount claimed for a specific line-item exceeds the guideline for that task, counsel must supply an explanation; without such an explanation, counsel is unlikely to be paid above the guideline for that task.
  3. Counsel must claim compensation only for hours actually worked and expenses actually incurred, even if the resulting claim is under the amount of the accumulated guidelines.
  4. Since the claim is treated as a pleading and is made under penalty of perjury, counsel must keep track of the hours actually spent on all tasks.
  5. Counsel is expected to know when preauthorization for incurring expenses or tasks outside of the appointment is required; without preauthorization, counsel is unlikely to be paid for that task. If in doubt, be sure to ask before incurring the expense or time.

 

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