Md. Code Regs. 14.06.03.05

Current through Register Vol. 51, No. 7, April 5, 2024

Section 14.06.03.05 - Determination of Eligibility for Services

A. Pursuant to Criminal Procedure Article, 16-207 and 16-210, Annotated Code of Maryland, and Office of the Public Defender v. State, 413 Md. 411 (2010), eligibility for services of the Office of the Public Defender shall be determined on the basis of need of the individual seeking legal representation. Need shall be measured by the financial ability of the applicant to engage and compensate competent private counsel and to provide all other necessary expenses of representation without undue financial hardship. This ability shall be recognized to be a variable depending on:

(1) The nature, extent, and liquidity of assets;

(2) The disposable net income of the defendant;

(3) The nature of the offense;

(4) The effort and skill required to gather pertinent information;

(5) The length and complexity of the proceedings; and

(6) Any other foreseeable expenses.

B. Persons seeking the services of the Office of the Public Defender shall fully disclose, under oath or affirmation, all financial assets, income, living expenses, and liabilities by completing an Application for Representation form which shall be supplied by the Office at a confidential eligibility interview.

C. Following such full disclosure by the applicant, the Office shall check financial information so disclosed against information obtained by the Office from the Department of Labor, Licensing, and Regulation (DLLR), and may follow up with DLLR as the Office in its sole discretion may deem appropriate. The information made available by DLLR shall be the most reliable means for corroborating financial information supplied by the applicant, and no further corroboration is therefore required. However, in addition, the Office may in its sole discretion, but is not required to, undertake any additional investigation it deems appropriate, in connection with which it may request supporting documentation from an applicant. The applicant's failure to provide some or all of any such documentation shall not necessitate a finding that the applicant is ineligible.

D. In conformity with the decision of the Court of Special Appeals in Baldwin v. State, 51 Md. App. 538, 444 A.2d 1058 (1982), the following guidelines presumptively apply in the determination of eligibility:

(1) Consistently with Baldwin v. State, supra, and Office of the Public Defender v. State, supra, any doubts as to defendant's indigence shall be resolved by providing assistance of counsel rather than denying it;

(2) The defendant's financial ability shall be measured in terms of his resources and not in terms of resources of the defendant's family;

(3) The fact that bond was posted may not be used as grounds to deny appointed counsel;

(4) Assets seized in raids and held by authorities subject to confiscation may not be deemed available to the defendant for purposes of determining his financial ability;

(5) The defendant's presumed employability shall form no proper basis for denying appointed counsel.

E. Pursuant to Criminal Procedure Article, § 16-210 et seq., Annotated Code of Maryland, if a determination of eligibility cannot be made before the time when the first services are to be rendered, the Office may undertake representation of an indigent person provisionally. If it should subsequently be determined that the defendant is ineligible, the Office will so inform the defendant, and the defendant shall then be obligated to engage the defendant's own counsel.

F. If after appointment to represent the client the attorney discovers that the client has secreted assets or falsified information regarding his true financial status, the attorney should promptly advise the district public defender or division chief. The district public defender or division chief shall make further investigation of the financial status of the client, in connection with which the Office may request that the client provide further documentation. After such investigation, the district public defender or division chief shall advise the attorney regarding continued appearance in the case and as to any other appropriate action.

G. Income Level.

(1) For an individual whose assets and net annual income are less than 100 percent of the federal poverty guidelines, eligibility for services of the Office may be determined without an assessment regarding the need of the applicant.

(2) Assets considered shall include all liquid and nonliquid assets of the applicant, excluding the applicant's principal residence and primary vehicle.

Md. Code Regs. 14.06.03.05

Regulation .05 amended effective March 19, 2012 (39:5 Md. R. 383)
Regulation .05B amended effective May 17, 1999 (26:10 Md. R. 799); amended effective 43:6 Md. R. 411, eff.3/28/2016