Code of Virginia

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Code of Virginia
Title 19.2. Criminal Procedure
Chapter 10. Disability of Judge or Attorney for Commonwealth; Court- Appointed Counsel; Interpreters; Transcripts
11/30/2022

Article 3.1. Indigent Defense.

§ 19.2-163.01. Virginia Indigent Defense Commission established; powers and duties.

A. The Virginia Indigent Defense Commission (hereinafter Indigent Defense Commission or Commission) is established. The Commission shall be supervisory and shall have sole responsibility for the powers, duties, operations, and responsibilities set forth in this section.

The Commission shall have the following powers and duties:

1. To publicize and enforce the qualification standards for attorneys seeking eligibility to serve as court-appointed counsel for indigent defendants pursuant to § 19.2-159.

2. To develop initial training courses for attorneys who wish to begin serving as court-appointed counsel, and to review and certify legal education courses that satisfy the continuing requirements for attorneys to maintain their eligibility for receiving court appointments.

3. To maintain a list of attorneys admitted to practice law in Virginia who are qualified to serve as court-appointed counsel for indigent defendants based upon the official standards and to disseminate the list by July 1 of each year and updates throughout the year to the Office of the Executive Secretary of the Supreme Court for distribution to the courts. In establishing and updating the list, the Commission shall consider all relevant factors, including but not limited to, the attorney's background, experience, and training and the Commission's assessment of whether the attorney is competent to provide quality legal representation.

4. To establish official standards of practice for court-appointed counsel and public defenders to follow in representing their clients, and guidelines for the removal of an attorney from the official list of those qualified to receive court appointments and to notify the Office of the Executive Secretary of the Supreme Court of any attorney whose name has been removed from the list.

5. To develop initial training courses for public defenders and to review and certify legal education courses that satisfy the continuing requirements for public defenders to maintain their eligibility.

6. To periodically review and report to the Virginia State Crime Commission, the House Committee for Courts of Justice, the Senate Committee on the Judiciary, the House Committee on Appropriations, and the Senate Committee on Finance and Appropriations on the caseload handled by each public defender office.

7. To maintain all public defender offices established by the General Assembly.

8. To hire and employ and, at its pleasure, remove an executive director, counsel, and such other persons as it deems necessary, and to authorize the executive director to appoint, after prior notice to the Commission, a deputy director, and for each of the above offices a public defender who shall devote his full time to his duties and not engage in the private practice of law.

9. To authorize the public defender to employ such assistants as authorized by the Commission.

10. To authorize the public defender to employ such staff, including secretarial and investigative personnel, as may be necessary to carry out the duties imposed upon the public defender office.

11. To authorize the executive director of the Commission, in consultation with the public defender to secure such office space as needed, to purchase or rent office equipment, to purchase supplies and to incur such expenses as are necessary to carry out the duties imposed upon him.

12. To approve requests for appropriations and receive and expend moneys appropriated by the General Assembly of Virginia, to receive other moneys as they become available to it and expend the same in order to carry out the duties imposed upon it.

13. To require and ensure that each public defender office collects and maintains caseload data and fields in a case management database on an annual basis.

14. To report annually on or before October 1 to the Virginia State Crime Commission, the House Committee for Courts of Justice, the Senate Committee on the Judiciary, the House Committee on Appropriations, and the Senate Committee on Finance and Appropriations on the state of indigent criminal defense in the Commonwealth, including Virginia's ranking amongst the 50 states in terms of pay allowed for court-appointed counsel appointed pursuant to § 19.2-159 or subdivision C 2 of § 16.1-266.

B. The Commission shall adopt rules and procedures for the conduct of its business. The Commission may delegate to the executive director or, in the absence of the executive director, the deputy executive director, such powers and duties conferred upon the Commission as it deems appropriate, including powers and duties involving the exercise of discretion. The Commission shall ensure that the executive director complies with all Commission and statutory directives. Such rules and procedures may include the establishment of committees and the delegation of authority to the committees. The Commission shall review and confirm by a vote of the Commission its rules and procedures and any delegation of authority to the executive director at least every three years.

C. The executive director shall, with the approval of the Commission, fix the compensation of each public defender and all other personnel in each public defender office. The executive director shall also exercise and perform such other powers and duties as may be lawfully delegated to him and such powers and duties as may be conferred or imposed upon him by law.

2004, cc. 884, 921; 2005, c. 230; 2006, cc. 429, 501; 2007, c. 371; 2008, cc. 536, 815; 2010, c. 314; 2021, Sp. Sess. I, cc. 344, 345.

§ 19.2-163.01:1. Supplementing compensation of public defender.

A. The governing body of any county or city may supplement the compensation of the public defender or any of his deputies or employees above the compensation fixed by the executive director, in such amounts as it may deem expedient. Such additional compensation shall be wholly payable from the funds of any such county or city.

B. Due to the privileged and protected nature of the attorney-client relationship and the statutory scope of representation provided in §§ 19.2-157 and 19.2-163.3, no county or city providing a supplement to compensation under this section shall place any condition or requirement upon the receipt of such funds.

C. Funds provided by any county or city under this section shall be paid directly to the employees with notice to the Indigent Defense Commission of any amount so provided.

2008, cc. 536, 815; 2010, c. 314.

§ 19.2-163.02. Membership of Indigent Defense Commission; expenses.

The Virginia Indigent Defense Commission shall consist of 14 members as follows: the Chairman of the House Committee for Courts of Justice or his designee and the Chairman of the Senate Committee on the Judiciary or his designee who shall be members of the Courts of Justice committees; the chairman of the Virginia State Crime Commission or his designee; the Executive Secretary of the Supreme Court or his designee; two attorneys officially designated by the Virginia State Bar; two persons appointed by the Governor; three persons appointed by the Speaker of the House of Delegates; and three persons appointed by the Senate Committee on Rules. At least one of the appointments made by the Governor, one of the appointments made by the Speaker, and one of the appointments made by the Senate Committee on Rules, shall be an attorney in private practice with a demonstrated interest in indigent defense issues. Persons who are appointed by virtue of their office shall hold terms coincident with their terms of office. If the chairman of the Virginia State Crime Commission is (i) the chairman of the House Committee for Courts of Justice, then the vice-chairman of the Committee shall serve in the position designated for the Committee chairman or (ii) the chairman of the Senate Committee on the Judiciary, then the Senate Committee on Rules, upon the recommendation of the chairman of the Committee, shall appoint a member of the Committee to serve in the position designated for the Committee chairman. All other members shall be appointed for terms of three years and may be reappointed.

The Commission shall elect a chairman and a vice-chairman from among its membership annually. The chairman or his designee shall preside at all regular and called meetings of the Commission and shall have no additional duties or authority unless set by statute or by resolution of the Commission and annually confirmed by the Commission. A majority of the members shall constitute a quorum. The Commission shall meet at least four times each year. The meetings of the Commission shall be held at the call of the chairman or whenever three of the members so request.

Members shall be paid reasonable and necessary expenses incurred in the performance of their duties. Legislative members shall receive compensation as provided in § 30-19.12 and nonlegislative citizen members shall receive compensation for their services as provided in §§ 2.2-2813 and 2.2-2825.

2004, cc. 884, 921; 2005, cc. 176, 758; 2006, cc. 429, 501; 2008, c. 115.

§ 19.2-163.03. Qualifications for court-appointed counsel.

A. Initial qualification requirements. An attorney seeking to represent an indigent accused in a criminal case, in addition to being a member in good standing of the Virginia State Bar, shall meet the specific criteria required for each type or level of case. The following criteria shall be met for qualification and subsequent court appointment:

1. Misdemeanor case. To initially qualify to serve as counsel appointed pursuant to § 19.2-159 for an indigent defendant charged with a misdemeanor, the attorney shall:

a. If an active member of the Virginia State Bar for less than one year, have completed eight hours of MCLE-approved continuing legal education developed by the Indigent Defense Commission, two of which shall cover the representation of individuals with behavioral or mental health issues and individuals with intellectual or developmental disabilities as defined in § 37.2-100;

b. If an active member of the Virginia State Bar for one year or more, either complete the eight hours of approved continuing legal education developed by the Commission, two of which shall cover the representation of individuals with behavioral or mental health disorders and individuals with intellectual or developmental disabilities as defined in § 37.2-100, or certify to the Commission that he has represented, in a district court within the past year, four or more defendants charged with misdemeanors; or

c. Be qualified pursuant to this section to serve as counsel for an indigent defendant charged with a felony.

2. Felony case.

a. To initially qualify to serve as counsel appointed pursuant to § 19.2-159 for an indigent defendant charged with a felony, the attorney shall (i) have completed the eight hours of MCLE-approved continuing legal education developed by the Commission, two of which shall cover the representation of individuals with behavioral or mental health disorders and individuals with intellectual or developmental disabilities as defined in § 37.2-100, and (ii) certify that he has participated as either lead counsel or co-counsel in four felony cases from their beginning through to their final resolution, including appeals, if any.

b. If the attorney has been an active member of the Virginia State Bar for more than one year and certifies that he has participated, within the past year, as lead counsel in four felony cases through to their final resolution, including appeals, if any, the requirement to complete eight hours of continuing legal education and the requirement to participate as co-counsel shall be waived.

c. If the attorney has been an active member of the Virginia State Bar for more than one year and certifies that he has participated, within the past five years, as lead counsel in five felony cases through to their final resolution, including appeals, if any, the requirement to participate as either lead counsel or co-counsel in four felony cases within the past year shall be waived.

3. Juvenile and domestic relations case.

a. To initially qualify to serve as appointed counsel in a juvenile and domestic relations district court pursuant to subdivision C 2 of § 16.1-266, the attorney shall (i) have completed the eight hours of MCLE-approved continuing legal education developed by the Commission, two of which shall cover the representation of individuals with behavioral or mental health disorders and individuals with intellectual or developmental disabilities as defined in § 37.2-100, (ii) have completed four additional hours of MCLE-approved continuing legal education on representing juveniles developed by the Commission, and (iii) certify that he has participated as either lead counsel or co-counsel in four cases involving juveniles in a juvenile and domestic relations district court.

b. If the attorney has been an active member of the Virginia State Bar for more than one year and certifies that he has, within the past year, been lead counsel in four cases involving juveniles in juvenile and domestic relations district court, the requirement to complete the 12 hours of continuing legal education shall be waived.

c. If the attorney has been an active member of the Virginia State Bar for more than one year and certifies that he has participated, within the past five years in five cases involving juveniles in a juvenile and domestic relations district court, the requirement to participate as either lead counsel or co-counsel in four juvenile cases shall be waived.

B. Requalification requirements. After initially qualifying as provided in subsection A, an attorney shall maintain his eligibility for certification biennially by notifying the Commission of completion of at least eight hours of Commission and MCLE-approved continuing legal education, two of which shall cover the representation of individuals with behavioral or mental health disorders and individuals with intellectual or developmental disabilities as defined in § 37.2-100. The Commission shall provide information on continuing legal education programs that have been approved.

In addition, to maintain eligibility to accept court appointments under subdivision C 2 of § 16.1-266, an attorney shall complete biennially thereafter four additional hours of MCLE-approved continuing legal education on representing juveniles, certified by the Commission.

C. Waiver and exceptions. The Commission or the court before which a matter is pending, may, in its discretion, waive the requirements set out in this section for individuals who otherwise demonstrate their level of training and experience. A waiver of such requirements pursuant to this subsection shall not form the basis for a claim of error at trial, on appeal, or in any habeas corpus proceeding.

2004, cc. 884, 921; 2006, c. 708; 2007, c. 571; 2021, Sp. Sess. I, cc. 523, 540.

§ 19.2-163.04. Public defender offices.

Public defender offices are established in:

a. The City of Virginia Beach;

b. The City of Petersburg;

c. The Cities of Buena Vista, Lexington, Staunton, and Waynesboro and the Counties of Augusta and Rockbridge;

d. The City of Roanoke;

e. The City of Portsmouth;

f. The City of Richmond;

g. The Counties of Clarke, Frederick, Page, Shenandoah, and Warren, and the City of Winchester;

h. The City and County of Fairfax;

i. The City of Alexandria;

j. The City of Radford and the Counties of Bland, Pulaski, and Wythe;

k. The Counties of Fauquier, Loudoun, and Rappahannock;

l. The City of Suffolk;

m. The City of Franklin and the Counties of Isle of Wight and Southampton;

n. The County of Bedford;

o. The City of Danville;

p. The Counties of Halifax, Lunenburg, and Mecklenburg;

q. The City of Fredericksburg and the Counties of King George, Stafford, and Spotsylvania;

r. The City of Lynchburg;

s. The City of Martinsville and the Counties of Henry and Patrick;

t. The City of Charlottesville and the County of Albemarle;

u. The City of Norfolk;

v. The County of Arlington and the City of Falls Church;

w. The City of Newport News;

x. The City of Chesapeake;

y. The City of Hampton;

z. The Cities of Manassas and Manassas Park and the County of Prince William; and

aa. The County of Chesterfield.

2004, cc. 884, 921; 2004, Sp. Sess. I, c. 4, cl. 2; 2005, c. 951; 2006, Sp. Sess. I, c. 2; 2016, cc. 164, 312; 2020, cc. 348, 376; 2021, Sp. Sess. I, c. 341.