| 1 | A bill to be entitled |
| 2 | An act relating to court-appointed counsel; amending s. |
| 3 | 938.29, F.S.; specifying that a lien for the cost of |
| 4 | court-appointed counsel against a parent for services |
| 5 | provided to a child does not expire upon the emancipation |
| 6 | of the child or upon the child reaching the age of |
| 7 | majority; amending s. 57.082, F.S.; clarifying proceedings |
| 8 | in which a party may qualify for court-appointed counsel; |
| 9 | revising provisions relating to the payment of an |
| 10 | application fee by a person eligible for court-appointed |
| 11 | counsel; amending s. 39.0134, F.S.; revising a cross- |
| 12 | reference relating to enforcement of liens for court- |
| 13 | ordered payment of attorney's fees and costs; specifying |
| 14 | circumstances under which a parent receiving assistance of |
| 15 | appointed counsel shall be liable for payment of an |
| 16 | application fee and attorney's fees and costs; providing |
| 17 | for payment of such fees and costs; providing for deposit |
| 18 | and disposition of fee proceeds; amending s. 28.246, F.S.; |
| 19 | providing that a clerk of court must provide certain |
| 20 | information to an attorney or collection agent employed by |
| 21 | the clerk to collect a debt owed to the clerk; providing |
| 22 | an effective date. |
| 23 |
|
| 24 | Be It Enacted by the Legislature of the State of Florida: |
| 25 |
|
| 26 | Section 1. Paragraph (b) of subsection (2) of section |
| 27 | 938.29, Florida Statutes, is amended to read: |
| 28 | 938.29 Legal assistance; lien for payment of attorney's |
| 29 | fees or costs.- |
| 30 | (2) |
| 31 | (b) A judgment showing the name and residence of the |
| 32 | defendant-recipient or parent shall be recorded in the public |
| 33 | record, without cost, by the clerk of the circuit court in the |
| 34 | county where the defendant-recipient or parent resides and in |
| 35 | each county in which such defendant-recipient or parent then |
| 36 | owns or later acquires any property. Such judgments shall be |
| 37 | enforced on behalf of the state by the clerk of the circuit |
| 38 | court of the county in which assistance was rendered. The lien |
| 39 | against a parent shall remain in force notwithstanding the child |
| 40 | becoming emancipated or the child reaching the age of majority. |
| 41 | Section 2. Paragraph (d) of subsection (1) and subsection |
| 42 | (5) of section 57.082, Florida Statutes, are amended to read: |
| 43 | 57.082 Determination of civil indigent status.- |
| 44 | (1) APPLICATION TO THE CLERK.-A person seeking appointment |
| 45 | of an attorney in a civil case eligible for court-appointed |
| 46 | counsel, or seeking relief from payment of filing fees and |
| 47 | prepayment of costs under s. 57.081, based upon an inability to |
| 48 | pay must apply to the clerk of the court for a determination of |
| 49 | civil indigent status using an application form developed by the |
| 50 | Florida Clerks of Court Operations Corporation with final |
| 51 | approval by the Supreme Court. |
| 52 | (d) A person who seeks appointment of an attorney in a |
| 53 | case under chapter 39 proceeding, at shelter or during the |
| 54 | adjudicatory process, during the judicial review process, upon |
| 55 | the filing of a termination of parental rights petition, or upon |
| 56 | the filing of any appeal, or if an appointed attorney is |
| 57 | requested in a reopened proceeding, at the trial or appellate |
| 58 | level, for which an indigent person is eligible for court- |
| 59 | appointed representation, shall pay a $50 application fee to the |
| 60 | clerk for each application filed. The applicant shall pay the |
| 61 | fee within 7 days after submitting the application. If the fee |
| 62 | is not paid within 7 days, the court shall enter an order |
| 63 | requiring payment and the clerk shall pursue collection under s. |
| 64 | 28.246. The clerk shall transfer monthly all application fees |
| 65 | collected under this paragraph to the Department of Revenue for |
| 66 | deposit into the Indigent Civil Defense Trust Fund, to be used |
| 67 | as appropriated by the Legislature. The clerk may retain 10 |
| 68 | percent of application fees collected monthly for administrative |
| 69 | costs prior to remitting the remainder to the Department of |
| 70 | Revenue. A person found to be indigent may not be refused |
| 71 | counsel. If the person cannot pay the application fee, the clerk |
| 72 | shall enroll the person in a payment plan pursuant to s. 28.246. |
| 73 | (5) APPOINTMENT OF COUNSEL.-In appointing counsel after a |
| 74 | determination that a person is indigent under this section, the |
| 75 | court shall order that any applicable application fee be paid by |
| 76 | each person requesting appointment of counsel and first appoint |
| 77 | the office of criminal conflict and civil regional counsel, as |
| 78 | provided in s. 27.511, unless specific provision is made in law |
| 79 | for the appointment of the public defender in the particular |
| 80 | civil proceeding. |
| 81 | Section 3. Section 39.0134, Florida Statutes, is amended |
| 82 | to read: |
| 83 | 39.0134 Appointed counsel; compensation.-If counsel is |
| 84 | entitled to receive compensation for representation pursuant to |
| 85 | a court appointment in a dependency proceeding or a termination |
| 86 | of parental rights proceeding pursuant to this chapter, |
| 87 | compensation shall be paid in accordance with s. 27.5304. The |
| 88 | state may acquire and enforce a lien upon court-ordered payment |
| 89 | of attorney's fees and costs in accordance with s. 938.29(2) |
| 90 | 984.08. |
| 91 | (1) A parent whose child is dependent, whether or not |
| 92 | adjudication was withheld, or whose parental rights are |
| 93 | terminated, and who has received the assistance of the office of |
| 94 | criminal conflict and civil regional counsel or any other court- |
| 95 | appointed counsel or has received due process services after |
| 96 | being found indigent for costs under s. 57.082 shall be liable |
| 97 | for payment of the assessed application fee under s. 57.082, |
| 98 | together with reasonable attorney's fees and costs as determined |
| 99 | by the court. |
| 100 | (2) If reasonable attorney's fees or costs are assessed, |
| 101 | payment of the fees or costs may be made part of any case plan |
| 102 | in dependency proceedings at the court's discretion; however, no |
| 103 | case plan may remain open for the sole issue of payment of |
| 104 | attorney's fees or costs. At the court's discretion, a lien upon |
| 105 | court-ordered payment of attorney's fees and costs may be |
| 106 | ordered by the court in accordance with s. 938.29(2). |
| 107 | (3) The clerk of the court shall transfer all attorney's |
| 108 | fees and costs collected under this section monthly to the |
| 109 | Department of Revenue for deposit in the Indigent Civil Defense |
| 110 | Trust Fund, subject to legislative appropriations and consistent |
| 111 | with s. 27.5111. |
| 112 | Section 4. Subsection (6) of section 28.246, Florida |
| 113 | Statutes, is amended to read: |
| 114 | 28.246 Payment of court-related fees, charges, and costs; |
| 115 | partial payments; distribution of funds.- |
| 116 | (6) A clerk of court shall pursue the collection of any |
| 117 | fees, service charges, fines, court costs, and liens for the |
| 118 | payment of attorney's fees and costs pursuant to s. 938.29 which |
| 119 | remain unpaid after 90 days by referring the account to a |
| 120 | private attorney who is a member in good standing of The Florida |
| 121 | Bar or collection agent who is registered and in good standing |
| 122 | pursuant to chapter 559. In pursuing the collection of such |
| 123 | unpaid financial obligations through a private attorney or |
| 124 | collection agent, the clerk of the court must have attempted to |
| 125 | collect the unpaid amount through a collection court, |
| 126 | collections docket, or other collections process, if any, |
| 127 | established by the court, find this to be cost-effective and |
| 128 | follow any applicable procurement practices. The collection fee, |
| 129 | including any reasonable attorney's fee, paid to any attorney or |
| 130 | collection agent retained by the clerk may be added to the |
| 131 | balance owed in an amount not to exceed 40 percent of the amount |
| 132 | owed at the time the account is referred to the attorney or |
| 133 | agent for collection. The clerk shall, upon request, give the |
| 134 | private attorney or collection agent any financial affidavit, |
| 135 | application for the appointment of court appointed counsel, |
| 136 | order appointing counsel due to indigency, or other document or |
| 137 | information that would assist in the collections, |
| 138 | notwithstanding whether or not the court file is otherwise |
| 139 | confidential from disclosure. |
| 140 | Section 5. This act shall take effect July 1, 2010. |