CHAPTER 11
ATTORNEY FEE CONTRACTS
493—11.1(13B) Scope. This chapter sets forth the rules for private attorneys entering into contracts for indigent defense legal services with the state public defender. See 493—Chapter 7 for definitions of terms used in this chapter.
493—11.2(13B) Contracts. An attorney may enter into a contract with the state public defender for the provision of legal services to indigent persons at either the trial level or the appellate level. Nothing in this rule is intended to imply that an attorney may not have both a contract for trial court work and a contract for appellate work.
	11.2(1) To be eligible to contract with the state public defender, an attorney must be licensed to practice law in the state of Iowa.
	11.2(2) A copy of an original contract is available from the Office of the State Public Defender, Lucas State Office Building, Des Moines, Iowa 50319-0087, by telephoning (515)242-6158, or on the Web at http://spd.iowa.gov.
[ARC 9293B, IAB 12/29/10, effective 12/7/10]
493—11.3(13B) Notice of proposed contract. The state public defender will give notice to attorneys of the availability of contracts for indigent defense legal services in a manner reasonably calculated to make attorneys aware of the availability of the contracts.
493—11.4(13B) Contract approval or denial.
	11.4(1) The state public defender or a person designated by the state public defender may confer with judges, attorneys and others with knowledge of a potential contracting attorney’s competence, effectiveness, trustworthiness, and ability to provide services to eligible individuals, and may conduct such additional investigation as deemed warranted in the sole discretion of the state public defender. The information received may be taken into consideration in determining whether it would be in the best interests of the state to enter into an initial or renewal contract with the potential contracting attorney.
	11.4(2) The state public defender or a person designated by the state public defender may hold discussions with, or otherwise obtain information from, a potential contracting attorney to determine the attorney’s qualifications and ability to perform the conditions of an initial or renewal contract.
	11.4(3) The state public defender or a person designated by the state public defender may hold discussions with, or otherwise obtain information from, a potential contracting attorney to establish under an initial or renewal contract the types of cases the contracting attorney will handle and the geographic area in which the cases will be handled.
	11.4(4) The state public defender may decline to award an initial or renewal contract to a proposed contracting attorney if the state public defender determines that the contract would not be in the best interests of the state, as described in rule 493—11.8(13B). The state public defender may limit the contract to specific types of cases, a specified geographic area, or both. The state public defender shall give written notice of this action to the attorney. The attorney may seek reconsideration of this decision in the manner prescribed in rule 493—11.9(13B).
	11.4(5) Nothing contained in this rule shall obligate the state public defender to enter into an initial or renewal contract if the state public defender determines that it is not in the best interests of the state to enter into such contract.
493—11.5(13B) Contract elements.
	11.5(1) Contract elements. The state public defender may enter into a contract with a private attorney for the provision of legal services to indigents in cases at the trial court level. The state public defender may also enter into a contract with a private attorney for the provision of legal services to indigents in cases at the appellate level.
	11.5(2) A contract can only be in force and effect when a contract acceptance form is signed by the contracting attorney and approved by the state public defender.
	11.5(3) The contracting attorney shall be an independent contractor and shall not be an agent or employee of the state of Iowa. The attorney shall exercise the attorney’s best independent professional judgment on behalf of clients to whom the attorney is assigned.
	11.5(4) After a contract has been awarded, the state public defender shall notify the clerks of court of the counties in which the contracting attorney has requested placement on the list of attorneys willing to provide services in those counties.
	11.5(5) A contract with a private attorney should cover, but not be limited to, the following subjects:
	a. 	The categories of cases in which the attorney is to provide services;
	b. 	The term of the contract and the responsibility of the attorney for provision of services in cases undertaken pursuant to the contract;
	c. 	Identification of the attorney(s) who will perform legal representation under the contract;
	d. 	A prohibition against assignment of the obligations undertaken pursuant to the contract, including a prohibition against substitution of counsel without prior consent of the state public defender or the court;
	e. 	The qualifications of the contracting attorney to undertake legal representation pursuant to the contract;
	f. 	A description of the compensation to be paid and the manner of payment;
	g. 	A description of any expenses, such as support services, investigative services and expert witness expenses, which may be provided under the contract;
	h. 	A description of the record-keeping and reporting requirements under the contract;
	i. 	A description of the manner in which the contract may be terminated;
	j. 	A description of the manner of disposition of ongoing obligations following termination.
	11.5(6) Compensation. Unless the contract provides for a different rate or manner of payment, the attorney shall be compensated as set forth in rule 493—12.4(13B,815) for work performed pursuant to a contract for services at the trial court level and rule 493—12.5(13B,815) for work performed pursuant to a contract for services at the appellate level.
	11.5(7) Contract form. Unless the attorney and state public defender agree in writing to vary the terms of the contract between them, the terms contained in the Legal Services Contract Indigent Defense Casework No.	493-10 shall constitute the agreement between the parties for the provision of legal services at the trial court level. The terms of Legal Services Contract Appellate Casework No. 493-10A shall constitute the agreement between the parties for the provision of legal services at the appellate level.
	11.5(8) No guarantee of appointments. An attorney under contract with the state public defender is not guaranteed any minimum number of court appointments. The process by which attorneys under contract with the state public defender are appointed to specific cases is governed by Iowa Code chapters 814 and 815. In making appointment decisions, the court may take into consideration any factor it deems appropriate including, but not limited to, the experience of the attorney and the difficulty of the case pursuant to Iowa Code section 815.10(4). The state public defender shall retain sole authority to determine the length of each contract or contract renewal.
[ARC 8090B, IAB 9/9/09, effective 9/15/09; ARC 8372B, IAB 12/16/09, effective 1/20/10; ARC 9293B, IAB 12/29/10, effective 12/7/10]
493—11.6(13B) Contract renewal. Prior to renewal of any contract, the state public defender may contact judges, attorneys, court personnel, and others to determine if any existing contract is being properly fulfilled and may conduct such additional investigation as is described in rule 493—11.4(13B). If the state public defender has determined that a contract renewal is in the best interests of the state, the state public defender may offer a new contract to the contracting attorney. The contracting attorney may accept the new contract by signing the contract and returning it to the state public defender within 30 days of the date on which the contract is submitted to the contracting attorney. If a contracting attorney is not offered a contract renewal, the state public defender shall give the contracting attorney written notice of this action. The attorney may seek reconsideration of this decision in the manner prescribed in rule 493—11.9(13B).
493—11.7(13B) Termination.
	11.7(1) Termination at will. Either the state public defender or the contracting attorney may terminate a contract upon 30 days’ advance written notice to the other party for any reason or no reason. Such termination may affect the entire contract, or may relate solely to a particular county or geographical area, or particular type of case.
	11.7(2) Termination for cause.
	a. 	A contract for indigent defense shall automatically terminate without notice upon the suspension or revocation of the attorney’s license to practice law in the state of Iowa.
	b. 	The state public defender may issue a notice of default based on any of the grounds described in rule 493—11.8(13B). A notice of default shall state the grounds of default and, if feasible, request that the contracting attorney remedy the default within 10 days of the date of the notice. If the events triggering the notice of default continue to be evidenced more than 10 days beyond the date of written notice, the state public defender may immediately terminate the contract without further notice by issuing a notice of termination. An attorney may seek reconsideration of the state public defender’s decision to terminate a contract based on the attorney’s default in the manner described in rule 493—11.9(13B).
493—11.8(13B) Grounds to deny or terminate a contract. In determining whether the award, renewal, or termination of a contract is in the best interests of the state, the state public defender may take into consideration factors such as, but not limited to, the following:
	1.	The attorney’s compliance with the terms of an existing or prior contract to represent indigent persons;
	2.	Any form of dishonesty or deception directed to judicial officials, the state public defender, indigent persons, other clients, or any other person in the practice of law;
	3.	Unprofessional or unethical conduct, or other act or omission that is or may be detrimental or harmful to indigent representation;
	4.	An attorney’s failure to attend, or untimely attendance at, hearings, depositions, or other case-related proceedings;
	5.	An attorney’s failure to abide by a court order, applicable statutes or administrative rules governing indigent representation, or local or state rules of procedure applicable to the cases in which the attorney has been appointed;
	6.	Repetitive, willful, deceptive, unexplained or uncorrected errors in claims for fees;
	7.	Disciplinary action against a legal or other professional license or conviction of a crime in any jurisdiction when the disciplinary action or conviction implicates an attorney’s honesty, trustworthiness, or competence to practice law, or is otherwise related to the practice of indigent defense;
	8.	Use of alcohol or controlled substances during court proceedings or in a manner impairing competent performance;
	9.	Judicial orders or rulings finding that an attorney engaged in untruthful, incompetent, unprofessional, or unethical behavior in the practice of indigent defense, submission of fee claims, or otherwise in the practice of law; or
	10.	Any other behavior implicating an attorney’s competence, effectiveness, or trustworthiness in the practice of indigent defense.
493—11.9(13B,17A) Reconsideration.
	11.9(1) Written notice. A request for reconsideration is perfected by giving written notice of the request for reconsideration to the state public defender within ten business days of the date of mailing of the notice of denial of an initial or renewal contract, or notice of termination following issuance of a notice of default. A request for reconsideration must be in writing and must specify the factual or legal errors the attorney contends were made by the state public defender. The attorney may provide such additional information, explanation or documentation as the attorney believes would be relevant to the reconsideration decision. The request for reconsideration is deemed made on the date of the United States Postal Service nonmetered postmark or the date of personal service on the state public defender.
	11.9(2) Exhaustion of administrative remedies. A request for reconsideration of the state public defender’s decision to deny or terminate a contract for cause is an administrative prerequisite to seeking any form of judicial review pursuant to Iowa Code chapter 17A.
	11.9(3) Informal conference. Upon receipt of a request for reconsideration, the state public defender or a person designated by the state public defender may schedule an informal conference with the attorney if in the state public defender’s judgment such a conference may foster resolution of the dispute. To the extent that the participation of the state public defender or a person designated by the state public defender in an informal conference could be considered personal investigation as that term is used in Iowa Code section 17A.17, an attorney agreeing to participate in an informal conference waives the right to seek to disqualify the state public defender or a person designated by the state public defender from acting as presiding officer or advising the presiding officer in a subsequent contested case proceeding based solely on the ground of personal investigation during an informal conference. The attorney does not waive the right to raise any other type of disqualification.
	11.9(4) Reconsideration decision. The state public defender shall issue a written reconsideration decision which may uphold, reverse, or modify the initial decision to deny or terminate a contract. The reconsideration decision is final agency action, unless an attorney timely requests a contested case hearing pursuant to rule 493—11.10(13B,17A).
493—11.10(13B,17A) Contested case hearing.
	11.10(1) Written request for contested case hearing. An attorney who is aggrieved by a reconsideration decision and who desires to contest the factual basis for the reconsideration decision shall request a contested case hearing within 10 days of the date the reconsideration decision is mailed. The request for contested case hearing shall identify the fact issues in dispute and any other claimed error, and shall state the manner in which the state public defender is alleged to have relied upon erroneous facts.
	11.10(2) Procedures. The request for contested case hearing is deemed made on the date of the United States Postal Service nonmetered postmark or the date of personal service on the state public defender. A contested case hearing shall be conducted pursuant to the procedures set forth in 481 IAC Chapter 10.
	11.10(3) A timely request for contested case hearing is an administrative prerequisite to seeking any form of judicial review pursuant to Iowa Code chapter 17A.
	11.10(4) Presiding officer. The state public defender or a person designated by the state public defender may preside over the contested case hearing and issue a final decision, or the state public defender may request that the hearing be conducted by an administrative law judge from the department of inspections and appeals who shall issue a proposed decision subject to review by or appeal to the state public defender. If the notice of hearing does not identify an administrative law judge as the presiding officer, an attorney may file a written request that an administrative law judge serve as the presiding officer at hearing. Such request must be filed within 20 days after service of the notice of hearing by certified mail, return receipt requested, to the attorney’s last-known address. The state public defender may deny the request only upon a finding that one or more of the following apply:
	a. 	There is a compelling need to expedite issuance of a final decision.
	b. 	The case involves significant policy issues of first impression that are inextricably intertwined with the factual issues presented.
	c. 	Funds are unavailable to pay the costs of an administrative law judge and possible resulting interagency appeal.
	d. 	The request was not timely made.
	e. 	The demeanor of the witnesses is likely to be dispositive in resolving the disputed factual issues.
493—11.11(13B,17A) Judicial review.
	11.11(1) The final decision by the state public defender to deny an attorney’s request to enter into an initial or renewal contract for indigent representation or to terminate such a contract for cause following issuance of a notice of default is reviewable pursuant to Iowa Code chapter 17A.
	11.11(2) Nothing in this rule shall prevent the informal resolution of a decision to deny or terminate an initial or renewal contract through mutually agreeable settlement at any stage of the proceeding.
These rules are intended to implement Iowa Code chapter 13B.
[Filed emergency 6/10/99—published 6/30/99, effective 7/1/99]
[Filed 10/26/99, Notice 6/30/99—published 11/17/99, effective 12/22/99]
[Filed 1/31/02, Notice 12/26/01—published 2/20/02, effective 4/1/02]
[Filed emergency 6/4/04—published 6/23/04, effective 7/1/04]
[Filed 11/3/04, Notice 6/23/04—published 11/24/04, effective 12/29/041]
[Filed 11/14/07, Notice 10/10/07—published 12/5/07, effective 1/9/08]
[Filed Emergency ARC 8090B, IAB 9/9/09, effective 9/15/09]
[Filed ARC 8372B (Notice ARC 8091B, IAB 9/9/09), IAB 12/16/09, effective 1/20/10]
[Filed Emergency ARC 9293B, IAB 12/29/10, effective 12/7/10]
1	12/29/04 effective date delayed 70 days by the Administrative Rules Review Committee at its meeting held 12/14/04.