(1) The office of alternate defense counsel shall provide legal representation in the following circumstances:
(a) In cases involving conflicts of interest for the state public defender as determined pursuant to subsection (1.5) of this section; and
(b) (Deleted by amendment, L. 2000, p. 1479, � 2, effective August 2, 2000.)
(c) To indigent persons who are charged with municipal code violations for which there is a possible sentence of incarceration, as the alternate defense counsel in his or her discretion may determine, and as available resources allow. The office of alternate defense counsel shall provide such representation only pursuant to a contract between a requesting municipality and the office of alternate defense counsel. Any such contract must require the municipality to be financially responsible for all services rendered and expenses incurred by contractors to defend persons charged with such municipal code violations in the contracting municipality. The office of alternate defense counsel is not required to contract with any municipality unless the office of alternate defense counsel determines that the municipality has sufficient funding and personnel to administer and oversee the contracts for the provision of indigent defense services in that municipality.
(1.5) (a) To request withdrawal from a case due to a conflict of interest, the state public defender shall submit to the court having jurisdiction over the case a motion specifically describing the nature of the conflict of interest. If the state public defender determines that ethical obligations prevent a specific description of the nature of the conflict of interest, the state public defender shall cite any applicable legal authority for the determination, and the portion of the motion that specifically describes the nature of the conflict shall be sealed. In the event an issue arises later concerning whether an actual conflict existed, the sealed portion of the motion may be opened and examined by the original judge or by another judge if necessary to prevent the violation of an ethical obligation.
(b) Upon review of the motion, the court shall determine whether a conflict of interest exists that would require withdrawal of the state public defender and appointment of the alternate defense counsel.
(c) Repealed.
(d) If the court allows withdrawal of the state public defender and appoints the alternate defense counsel and it is later determined that no genuine conflict of interest existed, the office of the state public defender shall reimburse the office of the alternate defense counsel for the cost of the representation.
(2) In cases involving conflicts of interest for the state public defender, the determination of indigency shall be made by the state public defender in accordance with section 21-1-103.
(3) (Deleted by amendment, L. 2000, p. 1479, � 2, effective August 2, 2000.)
(4) The office of alternate defense counsel shall provide legal representation for persons who are indigent by contracting with licensed attorneys and other persons necessary to provide legal services commensurate with those available to persons who are not indigent pursuant to section 21-2-105.
(5) The office of alternate defense counsel may, but is not required to, evaluate the performance of attorneys providing indigent defense in municipal courts at the request of any municipality, as described in section 13-10-114.5 (3)(c)(II). The office of alternate defense counsel shall not perform any such evaluations without sufficient funding for personnel to perform such evaluations.
Source: L. 96: Entire article added, p. 1014, � 1, effective May 23. L. 99: (1)(a) and (2) amended and (1.5) added, p. 874, � 1, effective August 4. L. 2000: (1)(b), (3), and (4) amended, p. 1479, � 2, effective August 2 L. 2018: (1) amended and (5) added, (SB 18-203), ch. 354, p. 2112, � 2, effective August 8. L. 2023: (4) amended, (HB 23-1033), ch. 9, p. 28, � 1, effective August 7. L. 2025: (1.5)(c) repealed, (SB 25-275), ch. 377, p. 2109, � 336, effective August 6.
Editor's note: Subsection (1.5)(c) was relocated to � 21-2-100.3 (2) in 2025.
21-2-104. Duties of alternate defense counsel and contract attorneys - report. (1) When representing an indigent person, the attorney under contract with the office of alternate defense counsel shall:
(a) Counsel and defend such person, whether he or she is held in custody, filed on as a delinquent, or charged with a felony offense, at every stage of the proceedings following arrest, detention, or service of process; and
(b) Prosecute any appeals or other remedies before or after conviction that the alternate defense counsel or the contract attorney considers to be in the interest of justice.
(2) In no case shall the alternate defense counsel or a contract attorney be required to prosecute any appeal or other remedy unless the alternate defense counsel or contract attorney is satisfied that there is arguable merit to the proceeding.
(3) Notwithstanding section 24-1-136 (11)(a)(I), pursuant to section 2-7-203, the office of alternate defense counsel shall report annually to the judiciary committees of the house of representatives and senate, or to any successor committees, information concerning:
(a) The number of juvenile delinquency cases for which counsel from the office is appointed;
(b) The number of juvenile cases that involve a conflict of interest;
(c) The process of selecting, training, and supporting attorneys who represent children in juvenile delinquency court;
(d) The average length of time attorneys are assigned to juvenile court;
(e) The outcome of efforts to reduce juvenile court rotations and increase opportunities for promotional advancement in salaries for attorneys in juvenile court; and
(f) The process of training employees and contractors concerning determinations of competency to proceed for juveniles and adults, competency evaluation reports, services to restore competency, and certification proceedings governed by article 65 of title 27.
Source: L. 96: Entire article added, p. 1014, � 1, effective May 23. L. 2000: IP(1) amended, p. 1480, � 3, effective August 2. L. 2014: (3) added, (HB 14-1032), ch. 247, p. 955, � 10, effective November 1. L. 2019: IP(3), (3)(d), and (3)(e) amended and (3)(f) added, (SB 19-223), ch. 227, p. 2292, � 17, effective July 1.