A. Applicability. These rules shall apply in every criminal proceeding in which the laws of the United States or the laws of the State of Nebraska establish a right to be represented by counsel. All parties who have a right to be represented by an attorney, including juveniles, shall have their eligibility for appointment of an attorney at public expense determined in conformance with these rules.
B. Definition of Terms. The following definitions shall be applied in connection with these rules:
(1) “Anticipated Cost of Counsel” shall mean the cost of retaining private counsel for representation on the matter before the court, as estimated by the court with reference, when applicable, to actual fees and retainers quoted for representation in the case by attorneys who practice in the area.
(2) “Available Funds” shall mean a party’s “liquid assets” and “disposable net monthly income” calculated after provision is made for the party’s bail obligations. For the purpose of determining “available funds,” the following definitions shall apply:
(3) “Basic Living Costs” shall mean the average amount of money spent each month for reasonable payments, including loan payments, toward living costs such as shelter, food, utilities, health care, transportation, clothing, education and child support, alimony, or other support payments.
(4) “Disposable Net Monthly Income” shall mean the income remaining each month after deducting amounts paid for income taxes, Social Security taxes, contributory retirement, union dues, and basic living costs.
(5) “Income” shall mean salary, wages, interest, dividends, rental income, and other earnings and cash payments such as amounts received from pensions, annuities, Social Security, and public assistance programs, and child support, alimony, and other support payments.
(6) “Liquid Assets” shall mean all real and personal property that is cash or that can be reasonably converted into cash, including pensions, deferred compensation plans, and individual retirement plans, cash on hand, funds provided by friends and relation for the purpose of providing legal services, savings accounts, stocks, bonds, certificates of deposit, and equity in any real or personal property. Any motor vehicle necessary to maintain employment shall not be considered a liquid asset.
(7) “Indigent,” for purposes of this rule, shall mean:
(a) A party who is:
(i) Receiving one of the following types of public assistance: Aid to Families with Dependent Children (AFDC), Emergency Aid to Elderly, Disabled and Children (EAEDC), poverty related veteran’s benefits, food stamps, refugee resettlement benefits, Medicaid, Supplemental Security Income (SSI), or County General Assistance Funds; or
(ii) Receiving an annual gross income of 125% or less of the current federally established poverty level; or
(iii) Residing in a public mental health facility or is the subject of a proceeding in which admission or commitment to such a facility is sought, provided that where the County Board of Mental Health or the Judge has reason to believe the party is not indigent, a determination of indigency shall be made in accordance with these Rules; or
(iv) Serving a sentence in a correctional institution and has no available funds; or
(v) Held in custody in jail and has no available funds; or,
(b) A party who the court determines is unable to retain legal counsel without prejudicing the party’s ability to provide economic necessities for the party or the party’s family based on a comparison of the party’s available funds and anticipated cost of counsel.
(8) “Party” shall mean a defendant, including a juvenile, in a criminal proceeding, in which a person has a right to counsel.
C. Judicial Advisement of the Right to Counsel. Whenever a party initially appears before the court without an attorney in any criminal proceeding where the right to counsel attaches, the judge shall advise the party, or if the party is a juvenile or is under guardianship, the party and a parent or legal guardian, where appropriate, that (1) the party has a right to be represented by an attorney in the proceeding and (2) if the court determines that the party, or the party’s parent or guardian where appropriate, wants, but cannot afford, the services of an attorney, that an attorney will be provided at public expense.
D. Waiver of the Right to Counsel. If the court determines that a party has knowingly, intelligently, and voluntarily decided to waive the right to be represented by an attorney in the proceeding, the party shall be asked to sign a written waiver of that right, and the judge shall sign a certificate that states that the party effectively waived that right. If the party refuses to sign the waiver, the judge shall note that fact on the certificate. The waiver, if applicable, and the certificate shall be executed on forms consistent with Attachment A and Attachment B to the Comments associated with this Rule appearing in the Appendix Form 6 to these Rules and shall be filed with the papers in the case.
E. Affidavit of Indigency. A party who desires to proceed as an indigent with an attorney appointed by the court shall complete an affidavit under oath concerning his or her financial resources on a form consistent with Attachment C to the Comments associated with this Rule appearing in the Appendix Form 6 to these Rules. The affidavit shall require the party to list all financial resources relevant to a determination of indigence. The party shall be advised of the penalties for perjury.
F. Determination of Indigency. If the court finds that the party has not effectively waived his or her right to counsel, and the party has not arranged to obtain counsel, the court shall receive the affidavit of indigency and may question the party under oath. After reviewing the information contained in the affidavit and, if applicable, the party’s testimony, the court shall determine whether the party is indigent based on § B(7)(a), indigent based on § B(7)(b), or not indigent. The court first shall determine whether a party is indigent based on § B(7)(a). If the court finds that a party is not indigent under § B(7)(a), the court shall next determine whether the party is indigent under § B(7)(b). The court shall record its findings, including its comparison of the party’s anticipated cost of counsel and available funds when applicable, on a form consistent with Attachment B to the Comments associated with this Rule appearing in the Appendix Form 6 to this Rule, that is filed with the papers in the case.
G. Assignment of Counsel/Notice of Assignment. If the court finds that a party is indigent, the court shall appoint an attorney to provide representation for the party. The Clerk of the Court shall promptly complete and transmit a notice of assignment of counsel form consistent with Attachment B to the Comments associated with this Rule appearing in the Appendix Form 6 to this Rule and shall file a copy in the case file. That form shall include the name of the attorney assigned to represent the party or shall note that the office of the public defender was appointed.
H. Review of Indigency Determination. A party’s indigency status may be reviewed in a formal hearing at any stage of a court proceeding if additional information regarding financial circumstances becomes available to the court. A party has a right to reconsideration in a formal hearing of the findings and conclusions regarding the party’s indigency.
I. Solicitation for Payment of Cost of Counsel. While determined to be indigent, a party may not be ordered, required, or solicited to make any payment toward the cost of counsel.
J. Inadmissibility of Information Obtained From Party. No information provided by a party pursuant to this rule may be used in any criminal or civil proceeding against the party except, in a prosecution for perjury or contempt committed in providing such information or in an attempt to enforce an obligation to reimburse the state for the cost of counsel.
Approved July 14, 2004; amended June 23, 2010.