Colorado § 21-2-105 - Contracts with attorneys and other legal services providers.

§ 21-2-105. Contracts with attorneys and other legal services providers.

(1) On and after January 1, 1997, the office of alternate defense counsel shall contract, where feasible, without prior approval of the court, for the provision of attorney services for cases described in section 21-2-103 (1). To provide for adequate legal representation of persons who are indigent, the office of alternate defense counsel may contract, where feasible, without prior approval of the court, for the provision of necessary legal services commensurate with those available to persons who are not indigent for cases described in section 21-1-103 (1). The office of alternate defense counsel shall establish, where feasible, a list of approved contract attorneys to serve as counsel and a list of approved legal services providers to provide services in such cases. As a condition of placement on the approved list, the contracting attorney or legal services provider shall agree to provide services based on the terms to be established in a contract, at either a fixed fee established by the office of alternate defense counsel or the hourly rate for reimbursement set by the supreme court. Terms of the contract must be negotiated between the alternate defense counsel and the contract attorney or legal services provider. Contracts made pursuant to this section must specify that the services must be provided subject to the Colorado rules of professional conduct.

(2) (a) Contracts made pursuant to this section must provide for reasonable compensation and reimbursement for expenses necessarily incurred, to be fixed and paid from state funds appropriated therefor. The office of alternate defense counsel shall review the bills submitted for reimbursement by any contractor and may approve or deny the payment of such bills in whole or in part based on the terms set forth in the contract negotiated between the alternate defense counsel and the contractor.

(b) The rate contracted for attorney time pursuant to subsection (2)(a) of this section for fiscal year 2023-24 is one hundred dollars per hour for cases involving a type B felony as referenced in attachment D to chief justice directive 04-04 and as modified by the gradations found in attachment D to chief justice directive 04-04. That hourly rate must be increased annually by no more than five dollars each year until the hourly rate is at least seventy-five percent of the rate set pursuant to the federal "Criminal Justice Act Revision of 1986", 18 U.S.C. sec. 3006A, as amended, for indigent representation in federal court. That hourly rate may be adjusted in subsequent fiscal years to maintain the hourly rate at or above seventy-five percent of the rate set pursuant to the federal "Criminal Justice Act Revision of 1986", 18 U.S.C. sec. 3006A, as amended, for indigent representation in federal court.

(3) Colorado relies primarily on an independent contractor model of legal representation for court-appointed adult and youth representation in accordance with this section when the public defender's office has a legal conflict of interest. While the office of the alternate defense counsel provides some legal representation for indigent individuals on some cases through state employees and will continue to explore the use of state employee staff model solutions where feasible, Colorado's need for conflict-free indigent defense counsel cannot be filled or provided statewide by direct employees of the office of the alternate defense counsel. For the purpose of determining eligibility for federal public service loan forgiveness, any independent contractor, including, but not limited to, a resource advocate, an investigator, a case assistant, an attorney, a social worker, a paralegal, or a legal researcher, who is currently providing or has previously provided legal services or services through an interdisciplinary legal team has a conflict in providing these services as a state employee. The director of the office of the alternate defense counsel or the director's designee is authorized to sign a certification for any current or past independent contractor that certifies that the contractor appears to be eligible for federal public service loan forgiveness as allowed by federal law or regulations. With the authorization of an independent contractor, the director of the office of the alternate defense counsel or the director's designee may share information, including the contractor's name, social security number or federal employer identification number, and the total number of hours billed by the contractor by calendar year, with other independent judicial agencies for the purpose of certifying apparent past, current, and future eligibility for public service loan forgiveness allowed by federal law or regulations.

Source: L. 96: Entire article added, p. 1015, § 1, effective May 23. L. 2000: (1) amended, p. 1480, § 4, effective August 2. L. 2023: (2) amended, (SB 23-227), ch. 77, p. 279, § 1, effective August 7; entire section amended, (HB 23-1033), ch. 9, p. 28, § 2, effective August 7. L. 2024: (3) added, (HB 24-1374), ch. 181, p. 980, § 4, effective May 15.

Editor's note: Amendments to subsection (2) by SB 23-227 and HB 23-1033 were harmonized.

Cross references: For the legislative declaration in HB 24-1374, see section 1 of chapter 181, Session Laws of Colorado 2024.

ANNOTATION

The phrase "where feasible" indicates that the existence of the "list" is not a prerequisite to the provision of alternate defense counsel representation. Therefore, appointment of alternate defense counsel by court is valid even if the individual attorney is not "on the official list" established by the office of alternate defense counsel. People v. Hodges, 134 P.3d 419 (Colo. App. 2005), aff'd on other grounds, 158 P.3d 922 (Colo. 2007).

Mandatory language in the alternate defense counsel statute limits the district court's authority to appoint counsel for indigent defendants to those attorneys on the "official list" established by the office of alternate defense counsel. The alternate defense counsel statute does not create a statutory right in defendants with regard to its procedural aspects; therefore, representation by counsel not on the "official list" did not violate any cognizable right of the defendant under this statute. Hodges v. People, 158 P.3d 922 (Colo. 2007).