78A-6-1111 - Right to counsel -- Appointment of counsel for indigent -- Cost -- Court hearing to determine compelling reason to appoint a noncontracting attorney -- Rate of pay.
78A-6-1111. Right to counsel -- Appointment of counsel for indigent -- Cost --Court hearing to determine compelling reason to appoint a noncontracting attorney -- Rateof pay.
(1) (a) The parents, guardian, custodian, and the minor, if competent, shall be informedthat they have the right to be represented by counsel at every stage of the proceedings. They havethe right to employ counsel of their own choice and if any of them requests an attorney and isfound by the court to be indigent, counsel shall be appointed by the court, subject to theprovisions of this section. The court may appoint counsel without a request if it considersrepresentation by counsel necessary to protect the interest of the minor or of other parties.
(b) The cost of appointed counsel for an indigent minor or other indigent party, includingthe cost of counsel and expense of appeal, shall be paid by the county in which the trial courtproceedings are held. Counties may levy and collect taxes for these purposes.
(c) The court shall take into account the income and financial ability to retain counsel ofthe parents or guardian of a child in determining the indigency of the child.
(2) If the state or county responsible to provide legal counsel for an indigent underSubsection (1)(b) has arranged by contract to provide services, the court if it has received noticeor a copy of such contract shall appoint the contracting attorney as legal counsel to represent thatindigent.
(3) In the absence of contrary contractual provisions regarding the selection andappointment of parental defense counsel, the court shall select and appoint the attorney orattorneys if:
(a) the contract for indigent legal services is with multiple attorneys; or
(b) the contract is with an additional attorney or attorneys in the event of a conflict ofinterest.
(4) If the court considers the appointment of a noncontracting attorney to provide legalservices to an indigent despite the existence of an indigent legal services contract and the courthas a copy or notice of such contract, before the court may make the appointment, it shall:
(a) set the matter for a hearing;
(b) give proper notice to the attorney general and the Office of Child Welfare ParentalDefense created in Section 63A-11-103; and
(c) make findings that there is a compelling reason to appoint a noncontracting attorneybefore it may make such appointment.
(5) The indigent's mere preference for other counsel may not be considered a compellingreason justifying the appointment of a noncontracting attorney.
(6) The court may order a minor, parent, guardian, or custodian for whom counsel isappointed and the parents or guardian of any child for whom counsel is appointed to reimbursethe county for some or all of the cost of appointed counsel.
(7) (a) Except as provided in Subsections (7)(b) and (c), the court shall order a minor,parent, guardian, or custodian for whom counsel is appointed and the parents or guardian of anychild for whom counsel is appointed to reimburse the county for the cost of appointed counselarising from any work of counsel that is not primarily directed at the state or the guardian adlitem.
(b) The court may not order reimbursement of the county pursuant to Subsection (7)(a)for the cost of appointed counsel arising from any work of counsel:
(i) that is specifically undertaken to defend against the filing of a petition to terminate
parental rights, regardless of who filed the petition; and
(ii) that is undertaken after the petition to terminate parental rights has been filed.
(c) The state, or an agency of the state, may not be ordered to reimburse the countypursuant to Subsection (7)(a).
Amended by Chapter 368, 2010 General Session