Ep. 22 Introducing Appointed Counsel, A Tennessee Court Talk Series

In this episode, host Dave Stripling introduces a new instructional series for attorneys called Appointed Counsel, Dave sits down with its host Joe Byrd, Lead Attorney for the Indigent Services Team. If someone cannot afford an attorney in the U.S. they still have a right to one, and thus our American system and our Constitution ensure an attorney is appointed to them. Here, Joe answers questions about how counsel is appointed in Tennessee, how the appointed attorneys get paid, how someone is determined as "indigent," Rules 13 and 42, and what appointed attorneys will learn from his new instructional series, Appointed Counsel. This episode is intended for all audiences.  

Produced by David Stripling

Transcript

00;00;00;14 - 00;00;16;28
Host
Welcome to Tennessee Court Talk. I'm your host, Dave Stripling. And today we're talking about a new instructional podcast for legal professionals called Appointed Counsel. And our guest today is the host of this upcoming series, Joe Byrd, lead attorney for the Indigent Services team.

00;00;16;28 - 00;00;19;06
Joe Byrd
Great to be here, Dave. I appreciate you taking the time.

00;00;19;08 - 00;00;28;27
Host
This episode is intended for all audiences. So welcome. So, Joe, tell us more about your role here at the AOC and how you got involved with the appointed counsel series?

00;00;28;28 - 00;00;54;02
Joe Byrd
Sure. So I'm the lead attorney over the team that reviews claims when attorneys get appointed to represent individuals who can't afford attorneys, those attorneys have to get paid somehow, and they get paid under the statute and the rules. They get paid through the funds that are allocated to the administrative office of the courts and overseen. And my team basically reviews those claims.

00;00;54;02 - 00;01;24;26
Joe Byrd
We call it audit them. We're not like the Internal Revenue Service or anything, but we have to make sure that the claim complies with the controlling rule. Usually it's rule 13 or rule 42 and the Supreme Court rules. So pretty much that's what I do. I oversee the team of about eight auditors. And I have to make, you know, the legal guidance, provide the legal direction and communicate with those above me up through the EEOC and work on behalf of the director in that way.

00;01;24;27 - 00;01;49;06
Joe Byrd
We're also part of the Legal Services division. The team used to be part of the fiscal division because it was just as seen as sort of a fiscal kind of decision. But now it's it's brought under the legal division. And so that's how the team functions. And I got involved when I saw that it was an opportunity to be able to use some management skills that I've developed over the years, as well as my legal skills and my practice.

00;01;49;06 - 00;02;08;03
Joe Byrd
I actually used to do in private practice. I would take some appointed work. I did some criminal appointments, and I did a lot of Gao, what we call them guardian ad litem. In cases where there are allegations of dependency, neglect or termination of parental rights cases. I used to take those cases, but that was a long time ago.

00;02;08;04 - 00;02;15;00
Joe Byrd
That was back when I would write it on paper and send it in the US mail. A lot of people now don't even know what those things mean anymore.

00;02;15;05 - 00;02;20;24
Host
So you mentioned rule 13, which is also rule 42. What are those? What is rule 13?

00;02;20;25 - 00;02;42;07
Joe Byrd
Yeah. For those who are not familiar with how lawyers function, generally, we do have the statutory code, right? The laws that the legislature puts together and those give general guidance. And those are the laws of the land, so to speak, within the state. But the general guidance is given to us in the rules of the court. So like in criminal court, there's rules of criminal procedure.

00;02;42;07 - 00;03;05;02
Joe Byrd
In civil court, there's courts of civil procedure. Well, there are specific rules that the Supreme Court makes. And part of those rules deal with what happens when the court, a trial court can be anywhere in the state of Tennessee, not the Supreme Court, but any court in the state of Tennessee has to appoint an attorney to represent a private attorney, to represent someone who can't afford an attorney.

00;03;05;05 - 00;03;41;17
Joe Byrd
And so rule 13 gives us all the regulations on how that how much is paid, what the process is to file a claim, how that claim is reviewed. It gives us all those kinds of directions. Rule 42 applies to interpreters, which we also process those claims in addition to those claims and not necessarily related to rule 13 or rule 42, but because we're sort of the paying mechanism of the AOC, my team also processes claims for court reporters and investigators and experts, those sorts of things as well.

00;03;41;23 - 00;03;48;18
Joe Byrd
But rule 13 and 42 apply to specifically attorneys compensation and expenses and then interpreters.

00;03;48;21 - 00;03;52;05
Host
So how is this different than what I hear about public defenders?

00;03;52;05 - 00;04;16;00
Joe Byrd
Yeah, that's a great question. So in Tennessee we have, district public defenders who are elected, and they usually have an office of several attorneys who will basically represent people who can't afford an attorney. After the judge makes a determination that the person is what we call indigent or unable to pay. And so the public defender's the first go to and that's in criminal matters.

00;04;16;00 - 00;04;36;09
Joe Byrd
No, we don't have anything like that when it relates to the juvenile side. On the dependency neglect and the, termination of pro lite cases, there is no public defender. Some public defenders will help, like in juvenile unruly cases where it's a juvenile that might have committed a misdemeanor or something. But most of the time the public defenders are just too overtaxed to do that kind of work.

00;04;36;12 - 00;05;05;21
Joe Byrd
So the public defender, even in the criminal court, though, can get conflicted out. And by that we mean that maybe they represented the codefendant, or maybe they represented the victim at one point, or they're familiar with this particular, defendant in a way that it just makes it improper for them, according to another set of rules that the Supreme Court has that guides attorney conduct, it's, Supreme Court Rule eight, which is the rules of professional conduct.

00;05;05;23 - 00;05;33;22
Joe Byrd
And so they're conflicted out. So what the judge has to do is say, okay, the person is clearly not able to pay for an attorney, and I can't appoint the public defender. So I'm going to have to find somebody. And what the rules say is the judges are to keep a list of those attorneys who can take appointments, who will take appointments and then appoint a private attorney, and then those private attorneys, like I said, they had to file claims to get paid eventually when the case is finished and then that happens with the public defender in criminal cases.

00;05;33;22 - 00;05;44;15
Joe Byrd
But that happens all the time in these dependency neglect and termination of parental rights cases because there is no public defender's office. So immediately you're going to private attorneys to be appointed.

00;05;44;19 - 00;05;48;07
Host
So who qualifies for this? How do you qualify as indigent?

00;05;48;11 - 00;06;05;29
Joe Byrd
So what the rule in the law says is, is that the court has to have a hearing. And it's not something that they can just pick up the phone and call my office or something like that. That doesn't work like that. It's the judge over your case in the local trial, whatever the case might be criminal dependency, neglect or termination of parental rights.

00;06;05;29 - 00;06;27;15
Joe Byrd
And generally, although sometimes there's not enough time to have a full blown hearing, generally the person will fill out an affidavit. We call it an affidavit of indigent C saying under oath how much money they make, how much income they have. And then typically judges will ask some questions of the individual, to make sure that they actually do not have means, because remember, this is taxpayer money, right.

00;06;27;15 - 00;06;46;05
Joe Byrd
And so we have to be good stewards of that or charged to do that. The courts are. And so they have to find out if these individuals are truly indigent and can't afford an attorney. And I know sometimes people don't always think that that's the case, that that a person is indigent, but they don't always you don't always know everything in the public.

00;06;46;05 - 00;07;07;19
Joe Byrd
Right. And so the judge ask some specific questions and then he makes the determination. Should he appoint or should she appoint the public defender, or should she, appoint a private attorney or not. And so that's typically the way that they get qualified is by that local judge in that trial court, in that county or in that jurisdiction.

00;07;07;24 - 00;07;15;17
Host
You were saying earlier that this is something that a judge has to determine, but is it something that somebody can actually ask a judge for?

00;07;15;17 - 00;07;32;26
Joe Byrd
Sure. Yeah. And that typically happens. I mean, the judge will say in their preliminary hearing of some sort, they'll say, you know, are you able to afford an attorney? And usually the judge will start that conversation. But if they if they don't, typically the judge will say, because they'll see the person appearing on their own, they'll say, well, you don't have an attorney.

00;07;32;26 - 00;07;53;01
Joe Byrd
No. Are you able to afford one? You know, and that's how the conversation gets started that way. But the person can certainly say it if it doesn't come up, but it's almost always going to come up because our judges are, you know, very concerned. Obviously, we take an oath, you know, to uphold the Constitution. And we know that these people have constitutional rights in these certain kinds of cases.

00;07;53;03 - 00;08;07;05
Joe Byrd
And, so they ask the questions and, and that that's something that isn't too much of a problem, I don't think, at all across our state, our judges are very, very good at making sure that the rights of the individuals are protected.

00;08;07;05 - 00;08;11;13
Host
So overall, and if you can give an opinion, how does this benefit the public?

00;08;11;13 - 00;08;32;17
Joe Byrd
Yeah. You know, Dave, that's a a great question because it may not seem on the front end that it's something that the general public should be concerned about, right? I mean, it's not their case. It's not them. But if it's ever them in court and they can't afford an attorney or it's their daughter or granddaughter, grandson or, you know, or their loved one that they care about, and they can give them money for an attorney.

00;08;32;17 - 00;08;54;12
Joe Byrd
You want them to have an attorney. And there's only certain cases where taxpayer dollars are used to pay, whether it's through the public defender's office or through private attorneys. There's only certain kinds of cases, like the person is facing incarceration, because our Constitution, both federal and state, we don't want people to be endangered of losing their liberty without having the right to due process.

00;08;54;12 - 00;09;16;25
Joe Byrd
And that means a due process. What our courts have established, both federal and state, is, is that due process means that you have an attorney at the critical stages within the cases. And so whenever there's a possibility of you losing your liberty by being incarcerated, you have the right to appointed counsel. And whenever children are potentially going to be taken away, there's a constitutional right.

00;09;16;28 - 00;09;37;21
Joe Byrd
Another time that there is a right to counsel is, for instance, something people don't always realize. But we have claims, and the rule provides for claims when there's involuntary commitment in hospital. Well, there has to be a hearing held, and it's not a meaningful hearing with due process unless the person has an attorney representing them who's aware of what's going on.

00;09;37;21 - 00;10;03;22
Joe Byrd
So it's probably you're probably going to say, Joe, you're thinking a little too highly of yourself here. But really and truly, that's sort of the bedrock of our judicial system, right? That everybody who gets in it, everybody who becomes a participant in our judicial system as a party in these particular areas where they're going to maybe lose their liberty or lose one of these fundamental issues of being able to have their children at home.

00;10;03;22 - 00;10;25;11
Joe Byrd
It's fundamental that they have counsel and there's some other issues that go along with that. But the appointment of counsel is critical, and it's really part of the very framework of our judicial system. And so the public needs to care about that, not just judges, not just attorneys. It's not just about getting paid. It's about making sure that our judicial system works.

00;10;25;11 - 00;10;31;19
Host
And of course, we have a name for this podcast. It gets right to the point. It's called appointed counsel. And where can we find this?

00;10;31;24 - 00;10;50;13
Joe Byrd
Yeah, just going to the website tncourts.gov. We do about a five minute podcast every month. It's really aimed toward attorneys and those who are processing claims. But if the public is interested in knowing about some of those intricate details, they're certainly able to watch its tncourts Dot gov

00;10;50;20 - 00;11;00;08
Host
Okay. Joe Byrd, lead attorney for the Indigent Services Team, thank you so much for joining us today. Thanks, Dave. And thank you as well for joining us here on Tennessee Court Talk.