Tenn. R. Sup. Ct., r. 13, 1

As amended through January 7, 2025
Section 1 - Right to counsel and procedure for appointment of counsel
(a)
(1) The purposes of this rule are:
(A) to provide for the appointment of counsel in all proceedings in which an indigent party has a statutory or constitutional right to appointed counsel;
(B) to provide for compensation of appointed counsel in non-capital cases;
(C) to establish qualifications and provide for compensation of appointed counsel in capital cases, including capital post-conviction proceedings;
(D) to provide for payment of expenses incident to appointed counsel's representation;
(E) to provide for the appointment and compensation of experts, investigators, and other support services for indigent parties in criminal cases, parental rights termination proceedings, dependency and neglect proceedings, delinquency proceedings, and capital post-conviction proceedings;
(F) to establish procedures for review of claims for compensation and reimbursement of expenses; and
(G) to meet the standards set forth in Section 107 of the Antiterrorism and Effective Death Penalty Act of 1996.
(2) The failure of any court to follow the provisions of this rule shall not constitute grounds for relief from a judgment of conviction or sentence. The failure of appointed counsel to meet the qualifications set forth in this rule shall not be deemed evidence that counsel did not provide effective assistance of counsel in a particular case.
(3) References herein to the Administrative Director of the Courts ("director") also encompasses his or her designee(s).
(b) Each general sessions, juvenile, trial and appellate court shall maintain a roster of attorneys from which appointments will be made. However, a court may appoint attorneys whose names are not on the roster if necessary to obtain competent counsel according to the provisions of this rule.
(c) All general sessions, juvenile, trial, and appellate courts shall appoint counsel to represent indigent defendants and other parties who have a constitutional or statutory right to representation (herein "indigent party" or "defendant") according to the procedures and standards set forth in this rule.
(d)
(1)Covered Cases: In the following cases, and in all other cases required by law, the court or appointing authority shall advise any party without counsel of the right to be represented throughout the case by counsel and that counsel will be appointed if the party is indigent and requests appointment of counsel.
(A) Cases in which an adult is charged with a felony or a misdemeanor and is in jeopardy of incarceration;
(B) Contempt of court proceedings in which the defendant is in jeopardy of incarceration;
(C) Proceedings initiated by a petition for habeas corpus, early release from incarceration, suspended sentence, or probation revocation;
(D) Proceedings initiated by a petition for post-conviction relief, subject to the provisions of Tenn. Sup. Ct. R. 28 and Tenn. Code Ann. §§ 40-30-101 et seq.;
(E) Parole revocation proceedings pursuant to the authority of state and/or federal law;
(F) Judicial proceedings under Tenn. Code Ann. Title 33, Chapters 3 through 8, Mental Health Law;
(G) Cases in which a superintendent of a mental health facility files a petition under the guardianship law, Tenn. Code Ann. Title 34;
(H) Cases under Tenn. Code Ann. § 37-10-304 and Tenn. Sup. Ct. R. 24, relative to petitions for waiver of parental consent for abortions by minors; and
(I) Proceedings initiated pursuant to Tenn. R. Crim. P. 36.1 and in which the trial court, pursuant to Tenn. R. Crim. P. 36.1(b), has determined that the motion states a colorable claim for relief.
(2)Covered Proceedings: In the following proceedings, and in all other proceedings where required by law, the court or appointing authority shall advise any party without counsel of the right to be represented throughout the case by counsel and that counsel will be appointed if the party is indigent and, except as provided in (C), (D), and (F) below, requests appointment of counsel:
(A) Cases in which a juvenile is charged with juvenile delinquency for committing an act which would be a misdemeanor or a felony if committed by an adult;
(B) Cases under Tenn. Code Ann. Titles 36 and 37 involving allegations against parents who have a right to counsel and whose parental rights could be in jeopardy from a finding that a child is dependent or neglected or in terminating parental rights;
(C) Reports of abuse or neglect or investigation reports under Tenn. Code Ann. §§ 37-1-401 through 37-1-411.
(i) The court shall appoint a guardian ad litem for every child who is or may be the subject of such report. The appointment of the guardian ad litem shall be made upon the filing of the petition or upon the court's own motion, based upon knowledge or reasonable belief that the child may have been abused or neglected. The child who is or may be the subject of a report or investigation of abuse or neglect shall not be required to request appointment of counsel.
(ii) A single guardian ad litem shall be appointed to represent an entire sibling group unless the court finds that conflicting interests require the appointment of more than one guardian. For purposes of this subsection, the compensation limits established in section 2 apply to each guardian ad litem appointed rather than to each child.
(iii) If the court finds the child's parents, legal custodians, or guardians are financially able to defray a portion or all of the cost of the guardian ad litem, the court shall enter an order directing the child's parents, legal custodians, or guardians to pay into the registry of the clerk of the court any sum that the court determines the child's parents, legal custodians, or guardians are able to pay.
(iv) The sum to defray a portion or all of the costs shall be subject to execution as any other judgment. The court may provide for payments to be made at intervals, which the court shall establish, and upon terms and conditions as are fair and just. The court may also modify its order when there has been a change in circumstances.
(v) If the Administrative Office of the Courts ("AOC") receives funds greater than the total amount which appointed guardian ad litem has claimed and has been reimbursed pursuant to Tenn. Sup. Ct. R. 13, then any such excess funds shall be paid to the attorney appointed as guardian ad litem.
(D) Proceedings to terminate parental rights.
(i) The court shall appoint a guardian ad litem for the child, unless the termination is uncontested. The child who is or may be the subject of proceedings to terminate parental rights shall not be required to request appointment of counsel. A single guardian ad litem shall be appointed to represent an entire sibling group unless the court finds that conflicting interests require the appointment of more than one guardian.
(ii) If the court finds the child's parents, legal custodians, or guardians are financially able to defray a portion or all of the cost of the guardian ad litem, the court shall enter an order directing the child's parents, legal custodians, or guardians to pay into the registry of the clerk of the court any sum that the court determines the child's parents, legal custodians, or guardians are able to pay.
(iii) The sum to defray a portion or all of the costs shall be subject to execution as any other judgment. The court may provide for payments to be made at intervals, which the court shall establish, and upon terms and conditions as are fair and just. The court may also modify its order when there has been a change in circumstances.
(iv) If the AOC receives funds greater than the total amount which appointed guardian ad litem has claimed and has been reimbursed pursuant to Tenn. Sup. Ct. R. 13, then any such excess funds shall be paid to the attorney appointed as guardian ad litem.
(v) For purposes of this subsection, the compensation limits established in section 2 apply to each guardian ad litem appointed rather than to each child.
(E) Cases alleging unruly conduct of a child which place the child in jeopardy of being removed from the home pursuant to Tenn. Code Ann. § 37-1-132(b); and
(F) Adoption proceedings in which the court appoints a guardian ad litem for the child or children pursuant to Tenn Code Ann. § 36-1-146.
(e)
(1) Except in cases under Sections 1(d)(1)(F) proceedings under the mental health law, 1(d)(1)(G) proceedings for guardianship under Tenn. Code Ann. Title 34, and 1(d)(2)(A) juvenile delinquency proceedings, whenever a party to any case in section 1(d) requests the appointment of counsel, the party shall be required to complete and submit to the court an Affidavit of Indigency Form provided by the AOC.
(2) Upon inquiry, the court shall make a finding as to the indigency of the party, including whether the party has the financial ability to defray a portion or all of the costs of representation pursuant to the provisions of Tenn. Code Ann. § 40-14-202, which finding shall be evidenced by a court order.
(3) Upon finding a party indigent, the court shall enter an order appointing counsel. If the indigent party rejects the offer of appointment of counsel with an understanding of the legal consequences of the rejection, the court shall enter an order stating the indigent party refused representation.
(4)
(A) When appointing counsel for an indigent defendant pursuant to section 1(e)(3), the court shall appoint the district public defender's office, the state post-conviction defender's office, or other attorneys employed by the state for indigent defense (herein "public defender") if qualified pursuant to this rule and no conflict of interest exists, unless in the sound discretion of the trial judge appointment of other counsel is necessary. Appointment of public defenders shall be subject to the limitations of Tenn. Code Ann. §§ 8-14-201 et seq.
(B) If a conflict of interest exists as provided in Tennessee Rules of Professional Conduct 1.7 or the public defender is not qualified pursuant to this rule, the court shall designate counsel from the roster of private attorneys maintained pursuant to section 1(b).
(C) The court shall appoint separate counsel for indigent defendants having interests that cannot be represented properly by the same counsel or when other good cause is shown.
(D) The court shall not make an appointment if counsel makes a clear and convincing showing that adding the appointment to counsel's current workload would prevent counsel from rendering effective representation in accordance with constitutional and professional standards.
(E) When the court appoints counsel pursuant to this subsection, the order of appointment shall assess the non-refundable administrative fee provided by Tenn. Code Ann. § 37-1-126(c)(1) or § 40-14-103(b)(1). Additionally the court shall consider the financial ability of the indigent party to defray a portion or all of the cost for representation by the public defender or a portion or all of the costs associated with the provision of court appointed counsel as provided by Tenn. Code Ann. §§ 8-14-205(d)(1); 37-1-126(c)(2); or 40-14-103(b)(2). If the court finds the indigent party is financially able to defray a portion or all the cost of the indigent party's representation, the court shall enter an order directing the indigent party to pay into the registry of the clerk of such court such sum as the court determines the indigent party is able to pay as specified by Tenn. Code Ann. § 40-14-202(e).
(5) Appointed counsel shall continue to represent an indigent party throughout the proceedings, including any appeals, until the case has been concluded or counsel has been allowed to withdraw by a court. See Tenn. Sup. Ct. R. 14 (setting out the procedure for withdrawal in the Court of Appeals and Court of Criminal Appeals); Tenn. Sup. Ct. R. 8, RPC 1.16.
(f)
(1) Indigent parties shall not have the right to select appointed counsel. If an indigent party refuses to accept the services of appointed counsel, such refusal shall be in writing and shall be signed by the indigent party in the presence of the court.
(2) The court shall acknowledge thereon the signature of the indigent party and make the written refusal a part of the record in the case. In addition, the court shall satisfy all other applicable constitutional and procedural requirements relating to waiver of the right to counsel. The indigent party may act pro se without the assistance or presence of counsel only after the court has fulfilled all lawful obligations relating to waiver of the right to counsel.

Tenn. R. Sup. Ct., r. 13, 1

As amended by order filed June 25, 2018; amended by order filed and effective 6/28/2019; amended by order filed October 4, 2024, effective 10/4/2024.

Explanatory Comment:

Sections 1(d)(2)(C)(iii)-(v) and 1(d)(2)(D)(ii)-(iv) follow the language of Tenn. Code Ann. § 37-1-150(g)(1), (3), and (5) and explicitly gives the trial court discretion to inquire of the parties' ability to defray the fees of the Guardian ad Litem. Upon conclusion of the matter, any funds paid into the registry of the Clerk of Court for the Guardian ad Litem fees that are not paid by the Clerk directly to the Guardian ad Litem under an order of the Court, are to be sent to the AOC to be paid over to the Guardian ad Litem. Section 1(d)(2)(F) has been added pursuant to Tenn. Code Ann. § 36-1-146 Section 1(e)(2) emphasizes that the finding of indigency must be evidenced by a court order. Section 1(e)(4)(A) emphasizes that trial courts "shall" appoint the public defender to represent criminal defendants unless a conflict of interest exists or in the sound discretion of the trial court, appointment of another counsel is necessary. Section 1(e)(4)(D) includes a specific standard that must be satisfied before counsel may refuse an appointment. Section 1(e)(4)(E) emphasizes that courts have a statutory duty to assess the administrative fee when appointing counsel as well as a statutory duty to consider whether the indigent party can afford to defray a portion or all of the costs of representation. Section 1(e)(5) clarifies that appointed counsel is obligated to represent the indigent party until the case is concluded, including all appeals, or until a court allows counsel to withdraw. Section 1(f) delineates the rights of indigent parties and the obligations of courts when an indigent party chooses to proceed without counsel.