FL Stat § 27.40 (2021)
2021 Florida Statutes|Title V - Judicial Branch|Chapter 27 - State Attorneys; Public Defenders; Related Offices|Part III - Public Defenders and Other Court-Appointed Counsel (Ss. 27.40-27.59)|27.40 - Court-appointed counsel; circuit registries; minimum requirements; appointment by court.

27.40 Court-appointed counsel; circuit registries; minimum requirements; appointment by court.—1(1) Counsel shall be appointed to represent any individual in a criminal or civil proceeding entitled to court-appointed counsel under the Federal or State Constitution or as authorized by general law. The court shall appoint a public defender to represent indigent persons as authorized in s. 27.51. The office of criminal conflict and civil regional counsel shall be appointed to represent persons in those cases in which provision is made for court-appointed counsel, but only after the public defender has certified to the court in writing that the public defender is unable to provide representation due to a conflict of interest or is not authorized to provide representation. The public defender shall report, in the aggregate, the specific basis of all conflicts of interest certified to the court. On a quarterly basis, the public defender shall submit this information to the Justice Administrative Commission.(2)1(a) Private counsel shall be appointed to represent persons in those cases in which provision is made for court-appointed counsel but only after the office of criminal conflict and civil regional counsel has been appointed and has certified to the court in writing that the criminal conflict and civil regional counsel is unable to provide representation due to a conflict of interest. The criminal conflict and civil regional counsel shall report, in the aggregate, the specific basis of all conflicts of interest certified to the court. On a quarterly basis, the criminal conflict and civil regional counsel shall submit this information to the Justice Administrative Commission.(b) Private counsel appointed by the court to provide representation shall be selected from a registry of individual attorneys maintained under this section.(3) In using a registry:1(a) The chief judge of the circuit shall compile a list of attorneys in private practice, by county and by category of cases, and provide the list to the clerk of court in each county. The chief judge of the circuit may restrict the number of attorneys on the general registry list. To be included on a registry, an attorney must certify that he or she:1. Meets any minimum requirements established by the chief judge and by general law for court appointment;2. Is available to represent indigent defendants in cases requiring court appointment of private counsel; and3. Is willing to abide by the terms of the contract for services, s. 27.5304, and this section.To be included on a registry, an attorney must enter into a contract for services with the Justice Administrative Commission. Failure to comply with the terms of the contract for services may result in termination of the contract and removal from the registry. Each attorney on the registry is responsible for notifying the clerk of the court and the Justice Administrative Commission of any change in his or her status. Failure to comply with this requirement is cause for termination of the contract for services and removal from the registry until the requirement is fulfilled.(b) The court shall appoint attorneys in rotating order in the order in which names appear on the applicable registry, unless the court makes a finding of good cause on the record for appointing an attorney out of order. The clerk of court shall maintain the registry and provide to the court the name of the attorney for appointment. An attorney not appointed in the order in which his or her name appears on the list shall remain next in order.(c) If the number of attorneys on the registry in a county or circuit for a particular category of cases is inadequate, the chief judge of the particular circuit shall provide to the clerk of court the names of at least three private attorneys who have relevant experience. The clerk of court shall send an application to each of these attorneys to register for appointment.(d) Quarterly, each chief judge shall provide a current copy of each registry to the Chief Justice of the Supreme Court, the state attorney and public defender in each judicial circuit, the office of criminal conflict and civil regional counsel, the clerk of court in each county, and the Justice Administrative Commission. The registry shall be provided to the Justice Administrative Commission in the form and manner provided by the commission.(4) To be eligible for court appointment, an attorney must be a member in good standing of The Florida Bar in addition to any other qualifications specified by general law and any requirements set by the chief judge of the circuit.1(5) The Justice Administrative Commission shall approve uniform contract forms for use in procuring the services of private court-appointed counsel and uniform procedures and forms for use by a court-appointed attorney in support of billing for attorney’s fees, costs, and related expenses to demonstrate the attorney’s completion of specified duties. Such uniform contracts and forms for use in billing must be consistent with s. 27.5304, s. 216.311, and the General Appropriations Act and must contain the following statement: “The State of Florida’s performance and obligation to pay under this contract is contingent upon an annual appropriation by the Legislature.”1(6) After court appointment, the attorney must immediately file a notice of appearance with the court indicating acceptance of the appointment to represent the defendant and of the terms of the uniform contract as specified in subsection (5).1(7)(a) A private attorney appointed by the court from the registry to represent a client is entitled to payment as provided in s. 27.5304 so long as the requirements of subsection (1) and paragraph (2)(a) are met. An attorney appointed by the court who is not on the registry list may be compensated under s. 27.5304 only if the court finds in the order of appointment that there were no registry attorneys available for representation for that case and only if the requirements of subsection (1) and paragraph (2)(a) are met.(b)1. The flat fee established in s. 27.5304 and the General Appropriations Act shall be presumed by the court to be sufficient compensation. The attorney shall maintain appropriate documentation, including contemporaneous and detailed hourly accounting of time spent representing the client. If the attorney fails to maintain such contemporaneous and detailed hourly records, the attorney waives the right to seek compensation in excess of the flat fee established in s. 27.5304 and the General Appropriations Act. These records and documents are subject to review by the Justice Administrative Commission and audit by the Auditor General, subject to the attorney-client privilege and work-product privilege. The attorney shall maintain the records and documents in a manner that enables the attorney to redact any information subject to a privilege in order to facilitate the commission’s review of the records and documents and not to impede such review. The attorney may redact information from the records and documents only to the extent necessary to comply with the privilege. The Justice Administrative Commission shall review such records and shall contemporaneously document such review before authorizing payment to an attorney. Objections by or on behalf of the Justice Administrative Commission to records or documents or to claims for payment by the attorney shall be presumed correct by the court unless the court determines, in writing, that competent and substantial evidence exists to justify overcoming the presumption.2. If an attorney fails, refuses, or declines to permit the commission or the Auditor General to review documentation for a case as provided in this paragraph, the attorney waives the right to seek, and the commission may not pay, compensation in excess of the flat fee established in s. 27.5304 and the General Appropriations Act for that case.3. A finding by the commission that an attorney has waived the right to seek compensation in excess of the flat fee established in s. 27.5304 and the General Appropriations Act, as provided in this paragraph, shall be presumed to be correct, unless the court determines, in writing, that competent and substantial evidence exists to justify overcoming the presumption.(8) Subject to the attorney-client privilege and the work-product privilege, an attorney who withdraws or is removed from representation shall deliver all files, notes, documents, and research to the successor attorney within 15 days after receiving notice from the successor attorney. The successor attorney shall bear the cost of transmitting all files, notes, documents, and research.(9) Any interested person may advise the court of any circumstance affecting the quality of representation, including, but not limited to, false or fraudulent billing, misconduct, failure to meet continuing legal education requirements, solicitation to receive compensation from the client the attorney is appointed to represent, or failure to file appropriate motions in a timely manner.(10) The attorney shall provide information in the form specified by the Justice Administrative Commission pursuant to s. 27.405, subject to the attorney-client privilege and work-product privilege.(11) This section does not apply to attorneys appointed to represent persons in postconviction capital collateral cases pursuant to part IV of this chapter.History.—s. 13, ch. 2003-402; s. 6, ch. 2004-265; s. 1, ch. 2005-236; s. 1, ch. 2007-62; s. 5, ch. 2010-162; s. 1, ch. 2012-123; s. 1, ch. 2014-49; s. 6, ch. 2014-59; ss. 56, 57, ch. 2019-116; ss. 57, 59, ch. 2020-114; ss. 28, 29, ch. 2021-37.1Note.—A. Section 28, ch. 2021-37, reenacted subsection (1), paragraphs (2)(a) and (3)(a), and subsections (5)-(7) “[i]n order to implement Specific Appropriations 736 through 757, 905 through 1048, and 1069 through 1104 of the 2021-2022 General Appropriations Act.”B. Section 29, ch. 2021-37, provides that “[t]he amendments to s. 27.40(1), (2)(a), (3)(a), (5), (6), and (7), Florida Statutes, as carried forward from chapter 2019-116, Laws of Florida, by this act, expire July 1, 2022, and the text of those subsections and paragraphs, as applicable, shall revert to that in existence on June 30, 2019, except that any amendments to such text enacted other than by this act shall be preserved and continue to operate to the extent that such amendments are not dependent upon the portions of text which expire pursuant to this section.” Effective July 1, 2022, subsection (1), paragraphs (2)(a) and (3)(a), and subsections (5)-(7), as amended by s. 29, ch. 2021-37, will read:(1) Counsel shall be appointed to represent any individual in a criminal or civil proceeding entitled to court-appointed counsel under the Federal or State Constitution or as authorized by general law. The court shall appoint a public defender to represent indigent persons as authorized in s. 27.51. The office of criminal conflict and civil regional counsel shall be appointed to represent persons in those cases in which provision is made for court-appointed counsel but the public defender is unable to provide representation due to a conflict of interest or is not authorized to provide representation.* * * * * (2)(a) Private counsel shall be appointed to represent persons in those cases in which provision is made for court-appointed counsel but the office of criminal conflict and civil regional counsel is unable to provide representation due to a conflict of interest.* * * * * (3)(a) The chief judge of the circuit shall compile a list of attorneys in private practice, by county and by category of cases, and provide the list to the clerk of court in each county. The chief judge of the circuit may restrict the number of attorneys on the general registry list. To be included on a registry, an attorney must certify that he or she:1. Meets any minimum requirements established by the chief judge and by general law for court appointment;2. Is available to represent indigent defendants in cases requiring court appointment of private counsel; and3. Is willing to abide by the terms of the contract for services.To be included on a registry, an attorney must enter into a contract for services with the Justice Administrative Commission. Failure to comply with the terms of the contract for services may result in termination of the contract and removal from the registry. Each attorney on the registry is responsible for notifying the clerk of the court and the Justice Administrative Commission of any change in his or her status. Failure to comply with this requirement is cause for termination of the contract for services and removal from the registry until the requirement is fulfilled.* * * * * (5) The Justice Administrative Commission shall approve uniform contract forms for use in procuring the services of private court-appointed counsel and uniform procedures and forms for use by a court-appointed attorney in support of billing for attorney’s fees, costs, and related expenses to demonstrate the attorney’s completion of specified duties.(6) After court appointment, the attorney must immediately file a notice of appearance with the court indicating acceptance of the appointment to represent the defendant.(7)(a) A private attorney appointed by the court from the registry to represent a client is entitled to payment as provided in s. 27.5304. An attorney appointed by the court who is not on the registry list may be compensated under s. 27.5304 if the court finds in the order of appointment that there were no registry attorneys available for representation for that case.(b)1. The attorney shall maintain appropriate documentation, including contemporaneous and detailed hourly accounting of time spent representing the client. If the attorney fails to maintain such contemporaneous and detailed hourly records, the attorney waives the right to seek compensation in excess of the flat fee established in s. 27.5304 and the General Appropriations Act. These records and documents are subject to review by the Justice Administrative Commission, subject to the attorney-client privilege and work-product privilege. The attorney shall maintain the records and documents in a manner that enables the attorney to redact any information subject to a privilege in order to facilitate the commission’s review of the records and documents and not to impede such review. The attorney may redact information from the records and documents only to the extent necessary to comply with the privilege.2. If an attorney fails, refuses, or declines to permit the commission to review documentation for a case as provided in this paragraph, the attorney waives the right to seek, and the commission may not pay, compensation in excess of the flat fee established in s. 27.5304 and the General Appropriations Act for that case.3. A finding by the commission that an attorney has waived the right to seek compensation in excess of the flat fee established in s. 27.5304 and the General Appropriations Act, as provided in this paragraph, is presumed to be valid, unless, as determined by a court, the commission’s finding is not supported by competent and substantial evidence.