preauthorization STEPS & procedures
Preauthorization Policies & Steps for Appointed Counsel Cases in the Third & the Fifth District
A. Types of Tasks & Expenses Requiring Preauthorization
Prior approval for any travel other than for oral argument must be obtained for Third and Fifth District cases. CCAP is authorized to process travel requests that do not exceed $600 for Third District cases only. In addition, statewide travel preapproval policies apply to prison visits and use of rental cars. (See Statewide Travel Guidelines)
- Translation Expenses
Prior approval for translator services must be obtained for Third and Fifth District cases. For both courts, CCAP is authorized to process translator requests that do not exceed $300.
- Habeas and Other Writ Work
Prior approval for all writ petition work and related expenses (beyond cursory inquiries with the client and/or trial attorney) must be obtained for Third and Fifth District cases. Counsel must move to expand their appointment and obtain preapproval from these courts to be compensated for this work outside the scope of their appointment. (See also Billing Habeas Time & Expenses memo (PDF).)
- Trial Court Motion Work
With very limited exceptions such as Fares and Clavel motions and other statutory created exceptions for returning to the trial court as part of the appeal, expansion of the appointment must be sought for motion work and appearances in the trial court. A first step is to talk with trial counsel to see if he or she would be willing to follow through. If not, this becomes a supporting factor for your request to expand and do the work yourself. Examples for this include appearances to settle the record, filing a 1170(d) sentence recall petition, and filing Prop 47 petitions. If in doubt, please contact your CCAP buddy first!
- Other Extraordinary Expenses
Preapproval is required before incurring any extraordinary expenses such as experts, investigators, unusual copying fees, legislative research service fees, etc. These kind of items are not currently within the scope of CCAP preauthorization authority.
B. Obtaining Preauthorization
For matters covered by CCAP preauthorization authority, write to the assigned CCAP buddy for the case. Successful requests include a detailed assessment of the elements outlined below. Missing information will necessitate a call from the CCAP buddy to appointed counsel for further information.
A request for prior approval not covered by CCAP preauthorization authority, or at the outset is expected to exceed the maximum dollar limit of CCAP preauthorization authority, will be routed to the court. However, requests for preapproval are routed differently in Third and Fifth District cases.
- In the Third District, such requests should be first sent to CCAP for a recommendation on the request. Send CCAP a copy of the original using "/s/ [counsel's typed name]" on the signature line and send an electronic/PDF copy of the request via our eservice address. [Note: DO NOT include an electronic signature that is in a color other than black.] CCAP will then forward the request with a recommendation to the court for a ruling.
- In the Fifth District, send the request directly to the court for a ruling and serve CCAP and your client with a copy.
- In both courts, retain one original "wet" signature hardcopy of the request in your file.
PLEASE REMEMBER: Service on CCAP is required for all documents filed with the court, but the Attorney General should not be served with documents dealing with appointed counsel's compensation, such as a motion to expand the appointment.
Tip: If the information in the expansion motion includes attorney-client privileged information or the attorney's work product, counsel should consider filing the application to expand along with a separate motion to file the application under seal. (See Cal. Rules of Court, rule 8.46.) The court will usually grant or deny the motion to seal before ruling on the motion to expand in a separate order.
C. Elements Needed to Assess a Preauthorization Request
- Economic Element
The request must take into account that all other economical means have been attempted, are not effective, or are not feasible. The courts expect that appointed counsel will have exhausted other more common means of communication or other process prior to seeking approval for an extraordinary cost.
Attorneys are also compensated for the most economical means of transit, regardless of the mode actually used. In determining the cost of travel, CCAP and the court will examine both the expense and the attorney time. When train or plane is the most economical, attorneys are not paid for the time actually in transit, as that time can be spent reading, etc.
- Cost Savings
If possible, the request should demonstrate a cost savings to the court. This can usually be demonstrated by laying out the actual and anticipated costs, versus doing it another way. For example, travel by plane may be more economical than travel by car for a long trip. By comparing the hours required to drive, the mileage, and accommodations for a long trip to a shorter drive to the airport, a quick flight, and rental car fees, the cost savings will be apparent.
- Estimations for Preapproval
If possible, counsel should estimate the total time necessary in their application to expand the scope of their appointment -- including all time and related expenses -- as compensation may be limited by the court's specific preapproval order and/or reasonableness. If the original preapproved amount will be exceeded for either time or expenses, counsel must seek further preapproval from these courts. At this time, CCAP does not have discretion to approve time or expenses not covered by the court’s preapproval order.
D. CCAP's Role & Limited Authority
- Court Policies Adhered To
For compensation purposes, CCAP stands in the shoes of the court; CCAP can preauthorize only what CCAP perceives the court would otherwise consider an appropriately incurred expense and reasonableness standards. The preapproval or recommendation CCAP makes must therefore meet all current court policies for expenditure of extraordinary expenses. CCAP cannot disregard current court policies. Questionable requests must be rejected and deferred to the court's authority.
- Habeas Investigation Not Within Scope of CCAP Preapproval Authority
The policy for both the Third and Fifth District Court of Appeal is that compensation for writ work requires preauthorization from the court. CCAP has not been given preauthorization authority to approve habeas investigation and petition work. The attorney’s de minimis time for preliminary investigation of habeas issues to support an expansion request should be claimed under Line #11 on the claim form.
For more information on compensation for habeas investigation and billing practice, see the Billing Habeas Time & Expenses memo (PDF).
Expansion requests that appear to be grounded in habeas investigation, rather than related to issues that can be raised on direct appeal, will be deferred to the court's authority. In the Third District, submit your written request to CCAP first for project input and recommendation to the court. Attorneys should submit the original with proof of service on the client and 5 copies to CCAP. CCAP will forward the original and the copies to the court along with the project's recommendation.
BACK TO TOP