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Panel Attorney Appointment Program

Effective January 1, 2019

Purpose:

The purpose of this program is to comply with California Code of Regulations Title 15, section 2256, which requires the Board of Parole Hearings (board) to provide inmates and parolees with attorney representation at State expense if they cannot afford to retain a private attorney at their board hearing. The Panel Attorney Appointment Program (Program) shall be administered in a transparent, evenhanded, and standardized way.

Upon appointment by the board, panel attorneys shall provide competent and professional legal services to all inmates and parolees seeking representation at State expense. The Program is designed to provide, on average, one week per month of panel assignments to each attorney on the active group of each panel.

Attorney Panels:

The board grouped the 35 existing adult prisons (plus SACCO) and two state hospitals (Atascadero and Patton) located throughout the State into 15 attorney panels based on their geographic proximity to each other (i.e., the prisons in each panel are generally within a three hour drive of each other). The 15 panel groupings are identified on page 8 with a corresponding map on page 9.

Within each panel, three groups shall be maintained by the board – the first group includes the names of “inactive” attorneys, the second group includes “standby” attorneys and the third group includes “active” attorneys. The “standby” group shall be the same number of attorneys as the active group.
The board shall periodically calculate the number of active attorneys needed for each panel by adding one attorney for every 65 hearings conducted at each facility during a six month period, with one additional attorney assigned to accommodate absences (see page 8).

In the event of increases or decreases in the calculated number of hearings, the board has discretion to adjust the number of active attorneys. For example, if the number of hearings decreases on one of the panels, the last hired active attorney will return to standby status in the number one position. Thereafter, the last two attorneys in the standby position will reenter the top of the inactive list.

Candidates may apply for as many panels as they choose, but shall only participate on three active panels at one time. An attorney may, at any time, request to be removed or added to a panel by writing the board. An attorney may at any time be added to a panel. Resignation by an attorney from any panel does not diminish the attorney’s responsibility to meet commitments of existing clients. The board will notify the attorney when and if a replacement attorney is secured.

ls as they choose, but shall only participate on three active panels at one time. An attorney may, at any time, request to be removed or added to a panel by writing the board. An attorney may at any time be added to a panel. Resignation by an attorney from any panel does not diminish the attorney’s responsibility to meet commitments of existing clients. The board will notify the attorney when and if a replacement attorney is secured.

Inactive Attorney Minimum Qualifications:

All future candidates (whether first time applicants or candidates re-applying following removal from a panel) shall be added to the end of the inactive group, in the same order their application is post-marked attention “Scheduling Unit: Panel Attorney Appointment” or received via email at BPH-AttorneyScheduling@cdcr.ca.gov. To be added to the inactive group on one or more panels, candidates must submit the following to the board:

  • A current resume;
  • Proof of “active” status and “good standing” with the California State Bar (a copy of said information from the http://calbar.ca.gov/ website will suffice); and
  • A signed copy of the Panel Attorney Participation Form (see page 12) indicating acceptance of all the Program terms and which panels are of interest.

Standby Attorney Minimum Qualifications:

Standby attorneys are those who the board identified may become an active attorney in the near future. Before becoming an active attorney, standby attorneys must complete all the following minimum qualifications:

I. Must Be Completed Within 1 Month of Written Notification of Activation:

(1) Proof of “active” status and “good standing” with the California State Bar (a copy of said information from the http://calbar.ca.gov/ website will suffice);

(2) Provide proof of malpractice insurance;

(3) Provide documentation of symptom free tuberculin skin testing and evaluation;

(4) Meet the necessary requirements to be eligible for entrance to each of the panels’ facilities; and follow all institution and state hospital dress code requirements. Additionally, attorneys are required to provide proof of an influenza vaccine or wear a protective mask when entering state hospitals;

(5) Sign and submit the Panel Attorney Participation Form (page 12); and

(6) Observe a minimum of three hearings since written notification of activation:
• Attorneys on Panels 1-13: Three Parole Consideration Hearings
• Attorneys on Panels 14-15: Three Mentally Disordered Offender Hearings (one Annual, one Placement, one Certification)

II. Must Be Completed Annually (Generally Held Each September):

(1) Attend the Attorney Orientation in full (typically four hours regarding parole hearing processes and typically four hours regarding the Americans with Disabilities Act). (Note: Attorneys on Voluntary Suspension are not excused from training.)
Failure to complete all minimum qualifications within the time prescribed for each will result in removal from the standby group and return to the bottom of the inactive group.

Active Attorney Minimum Qualification:

Active attorneys may represent inmates and parolees at hearings by satisfying the below minimum qualifications on an annual basis:
(1) Proof of “active” status and “good standing” with the California State Bar (a copy of said information from the http://calbar.ca.gov/ website will suffice);

(2) Provide annual proof of malpractice insurance;

(3) Provide annual documentation of symptom free tuberculin skin testing and evaluation;

(4) Meet the necessary requirements to be eligible for entrance to each of the panels’ facilities; and follow all institution and hospital dress code requirements;

(5) Attend the annual Attorney Orientation in full (typically four hours regarding parole hearing processes and typically four hours regarding the Americans with Disabilities Act), generally held each September;

(6) Annually sign and submit the Panel Attorney Participation Form (page 12);

(7) Open and maintain an account in the board’s Disability & Effective Communication System (DECS) database. The DECS database is a comprehensive repository of information related to each inmate’s disabilities. Attorneys are to provide at their own cost, all hardware/software enabling access to this database information; and

(8) Open and maintain a “Blackberry Workspaces” (aka WatchDox) account by registering an email address for access to electronic hearing files. Attorneys are to provide at their own cost, all hardware/software enabling access to this database information.

(9) Under California Rules of Court, rule 9.9.5, all active attorneys licensed in California must be re-fingerprinted. The State Bar is requiring attorneys to resubmit fingerprints by April 30, 2019. Failure to follow these instructions may be considered non-compliance with the State Bar of California fingerprinting rule requirements and may subject attorneys to penalties.

The board will conduct a full audit in December 2019 by requiring attorneys to submit the 10-digit Automated Transaction Identifier (ATI) number as proof of submitting fingerprints to the Live Scan vendor. If fingerprint scanning is not completed by December 2019, you will be removed from all active panels and placed at the bottom of the inactive list.

Failure to satisfy all minimum qualifications will result in immediate removal from the active group and return to the bottom of the inactive group.

Attorney Expectations:

When a panel attorney is offered an appointment by the board and he/she declines, or fails to respond within three business days of the contact date and time, regardless of the reason, board staff shall document this occurrence. When an attorney declines an appointment a second time on the same panel in a 12 month calendar year period (January 1 through December 31), board staff shall notify the attorney in writing reminding them if they decline an appointment again on that particular panel before the end of the 12 month calendar year period, regardless of the reason, they will be immediately removed from that panel. In the event an attorney declines an appointment a third time on the same panel in a 12 month calendar year period, regardless of the reason, board staff shall remove the attorney from the specific panel and notify the attorney of said action. The attorney may apply again following the procedures outlined in this Program.

A panel attorney shall review the client’s central file and Comprehensive Risk Assessment in advance of a scheduled hearing. A panel attorney shall meaningfully consult in person with the client at least 45-days prior to a scheduled hearing and shall discuss, at a minimum, the current Comprehensive Risk Assessment, the client’s parole plans, and the client’s disciplinary history. If, for any reason, the Comprehensive Risk Assessment is not available to the panel attorney or client at the time of their initial consultation, the panel attorney shall make arrangements to schedule a follow-up consultation with the client, either in person or by phone, to review the Comprehensive Risk Assessment with the client at least 10 calendar days prior to the scheduled hearing date. If you are representing an inmate under the Sacramento Central Office (SACCO), the board approves telephonic interviews and does not require in person interviews due to the inmate being housed out of state prior to transfer for hearing.

If a panel attorney encounters any logistical problems meeting and communicating with the client, or obtaining access to relevant documents, including the Comprehensive Risk Assessment, the panel attorney shall immediately notify board staff at BPHLiferAnalyst@cdcr.ca.gov, and shall make all reasonable efforts to resolve the problem(s) in advance of the hearing. A panel attorney shall appear for the scheduled hearing on time and shall remain available for the entire hearing day.

To ensure the scheduled hearing begins timely, a panel attorney should arrive at the institution at least one-half hour prior to the scheduled start time allowing sufficient time for parking and entry into the hearing room. A panel attorney should always have available a valid identification card upon arrival to the institution. If a panel attorney experiences any problems entering the institution on the day of the hearing, please notify board staff via email at BPHLiferAnalyst@cdcr.ca.gov or the Scheduling hotline at 916-217-4137 for proper notification to the panel.

A panel attorney shall conduct himself or herself in a competent and professional manner at all times (including professional attire), and with all board and institution staff and hearing participants. Failure to meet any of these expectations shall result in referral to the Executive Officer to determine whether the attorney shall be removed from one or all board panels.

A panel attorney shall review each client’s potential Americans with Disabilities Act (ADA) needs via DECS for each assigned hearing, including an add on hearing and a Mentally Disordered Offender (MDO) hearing, and create a source document in DECS to document all accommodations provided to the client during the contact, including accommodations provided by the client (such as bringing his or her own glasses, hearing aids, or mobility aids) or to document when no accommodations are necessary.

If DECS identifies a sign language interpreter is needed, panel attorneys shall use the sign language interpreter when communicating with the client. A panel attorney shall use a foreign language interpreter to communicate with the client when needed to establish effective communication. A panel attorney shall raise appropriate and timely objections to the hearing panel regarding the client’s ADA needs, and submit a timely post-hearing grievance to the board if the attorney believes the client’s ADA rights were violated.

Panel attorneys shall not rely on the use of written communications with clients designated in DECS as any of the following:

  1. DD1, DD2, or DD3 under the Developmental Disability Program (DDP);
  2. Enhanced Outpatient Program (EOP), Mental Health Crisis Bed (MHCB), Intermediate Care Facility (ICF) or Acute under the Mental Health Services Delivery System (MHSDS);
  3. A patient under the care of the Department of State Hospitals (DSH) or CDCR’s Statewide Mental Health Program (SMHP) in a licensed Psychiatric Inpatient Program (PIP); or
  4. Learning Disabled (DNL, DPL, Blind (DPV)), Vision-Impaired (DSV), or has a Test of Adult Basic Education (TABE) Score of 4.0 or lower.

Failure to meet any of these expectations shall result in referral to the Executive Officer to determine whether the panel attorney shall be removed from one or all board panels.

An active attorney may not assign any other attorney to handle an appointed hearing assignment on his or her behalf.

The email address listed on the Panel Attorney Participation form (page 12) is the “official” email of the attorney unless he or she notifies us in writing of a change. Failure to notify the board of such change may result in a decline if the assignment is sent to the previously confirmed email and no acknowledgement is received timely by the attorney.

If a panel attorney is referred to the California State Bar for alleged misconduct by any state or federal judge or the Chief Counsel of the board, the attorney shall be suspended from all board panels during the pendency of the action. If a panel attorney is disciplined by the California State Bar, they shall be permanently removed from all board panels.

If a panel attorney is arrested or charged with a felony crime in any jurisdiction, the attorney shall promptly notify the board of said arrest/charges and be suspended from all board panels during the pendency of the action. If a panel attorney is convicted of a felony in any jurisdiction or fails to timely report felony arrest/charges to the board, they shall be permanently removed from all board panels. If a panel attorney is arrested, charged with or convicted of a misdemeanor crime in any jurisdiction, the attorney shall promptly notify the board of said arrest/charges or conviction. The Executive Officer shall determine whether the attorney shall be removed from one or all board panels on a temporary or permanent basis.

In the event an attorney fails to qualify for entrance to a facility, the attorney shall be suspended from the specific panel(s) for up to three months in order to resolve the matter with the facility. If the matter is not resolved after three months, the attorney shall be permanently removed from the specific panel. The attorney may apply again following the procedures outlined in this Program.

Involuntary Suspension:

Active and standby attorneys may be involuntarily suspended for a period of time determined by the board for failure to satisfy the minimum qualifications (reflected on pages 2, 3 and 4) by the deadline and may result in change of status and placement to the bottom of the inactive group. It is the attorney’s responsibility to comply with these requirements.

Voluntary Suspension:

An active attorney may request to be suspended on one occasion within a 12-month period (January 1 through December 31). The request may be submitted for a minimum of 4 weeks, and no more than 12 weeks from all panels for good cause, as determined by the Executive Officer. Requests must be in writing and include a specific start and end date. If more than 12 weeks are requested, the attorney’s name will be removed from the active list and placed at the bottom of the inactive list. (Note: Voluntary suspension does not relieve the attorney from meeting any minimum qualifications, including training.)

Invoicing:

Invoices are available on the board’s website at: http://www.cdcr.ca.gov/BOPH/Attorney_Resources/Invoicing. Attorneys shall scan and submit one invoice for each hearing via email at BPHAccountingLiaison@cdcr.ca.gov. Incomplete invoices shall be returned to the attorney.

Attorneys shall certify which services they rendered by placing their initials next to the appropriate “Description of Services Performed.” Attorneys will only be paid for the services described on the invoice, which represents a flat rate fee for all expenses incurred by the attorney in representation of their client. In the event a hearing is canceled and the attorney is not notified within 24 hours, the attorney will be reimbursed for personal appearance at the hearing.

Invoices shall not be submitted until all related work is completed for each hearing or the fiscal year ends (June 30, 2019). A single hearing concludes when the board’s decision becomes final. If a hearing is continued or postponed on or before the scheduled hearing date and the same attorney is assigned to the hearing, the attorney is reimbursed only for attorney appointment and personal appearance services. If a hearing is continued or postponed for more than six months then the matter shall be considered completed for purposes of invoicing.

In order to ensure timely payment, invoices should not be submitted later than six months after the board’s decision.