Navajo Pro Bono Rules

The Navajo Nation Supreme Court first adopted pro bono rules in 1990 by Order No. SCAP-4-90.  The rules were repealed and replaced with these rules by Order No. SC-SP-02-94 on March 20, 1996.  These rules were approved by the Judiciary Committee of the Navajo Nation Council on June 18, 1996 in Resolution No. JCJN-8-96.

· Index

RULE I.  Definitions.

A. Pro bono appointment means an appointment by a Navajo Nation court to represent a party or an interested person (such as a child in a custody case) at no fee or reduced fee.

B. Pro bono service means uncompensated service to the Navajo Nation courts and is other than a pro bono appointment.

1. The Navajo Nation Supreme Court shall list the areas in which pro bono service can be performed.

C. Pro bono list means the list of Navajo Nation Bar Association (NNBA) members and others eligible for pro bono appointments in the Navajo Nation.  For purposes of these rules, thee are four (4) lists:  (1) the TCKY list: NNBA members in the Tuba City and Kayenta districts;  (2) the SRCP list:  NNBA Members in the Shiprock and Crownpoint districts;  (3) the WRCH list: NNBA Members in the Window Rock and Chinle districts; and (4) the RAC list:  NNBA Members in the Ramah, Alamo and Canoncito district.

1.            For pro bono list purposes, a non-member of the NNBA who is eligible for pro bono appointment pursuant to Rule VII.B, shall be on the list applicable to the court in which the non-member last appeared.

RULE II.    General Rule.

A. All regular members of the NNBA and other persons permitted to practice in the Navajo Nation courts are subject to and shall accept pro bono appointments.

1.         Inactive members of the NNBA are eligible for and shall accept pro bono appointments as provided in these rules.

B. The following persons or positions are exempt from pro bono appointments and service:

1.         The President and Vice-President of the Navajo Nation;

2.         Navajo Nation Council Delegates;

3.         Active judges and justices of the Navajo Nation and retired judges and justices who are not engaged in the active practice of law.  This rule does not prevent the Chief Justice of the Navajo Nation from recalling retired judges and justices to the bench to help relieve congestion in the courts;

4.         Attorney General of the Navajo Nation;

5.         Chief Legislative Counsel of the Navajo Nation;

6.         Employees of the Judicial Branch of the Navajo Nation; and

7.         All Navajo Nation Prosecutors and Presenting Officers.

C. The following persons or positions are exempt from pro bono appointments, but not exempt from pro bono service:

1. Officers, Bar Commissioners and members of the Rules, Continuing Legal Education, Judicial Evaluation, Disciplinary, Training and Admissions Committee of the NNBA; ¹

2.         Persons who are employed by other sovereigns who are prohibited by the law applicable to their employment from pro bono representation:

a.         Such persons must file with the office of pro bono service appropriate proof of the restrictions on their pro bono service.

3.         Other persons granted exemption by the Navajo Nation Supreme Court on petition for good cause shown with notice to the NNBA.

RULE III.    Pro Bono Appointment of Counsel.

A. The Navajo Nation courts are authorized to appoint non-exempt NNBA members as counsel in the following types of proceedings:

1.         For an indigent defendant in criminal proceedings;

2.         For parents in termination of parental rights proceedings;

3.         For a child in any proceeding concerning that child; and

4.         For any other party in any other proceeding where the interests of justice require.

RULE IV.    Eligibility for Appointment; Compensation of Counsel.

A. No pro bono appointment shall be made if the person for whom the appointment is sought has resources that, if used, would enable the person to hire his or her own counsel.

1.         A court making an appointment of counsel shall make a diligent inquiry of the resources of the person requesting counsel pursuant to the Navajo Nation Judicial Branch Indigent Policy.

B. When a pro bono appointment is made for a child, the parents and relatives of the child shall be responsible for payment of compensation of appointed counsel.

C. In determining the compensation to be paid to appointed counsel, the court shall consider the distance traveled and expenses of appointed counsel.

D. The court may direct that compensation to appointed counsel be paid over a period of time; by payroll deduction; in kind or any other method designed to ensure fairness to all concerned.

RULE V.  Guardians Ad Litem.

A. Courts may appoint NNBA members as guardians ad litem upon a specific finding that a legally trained guardian ad litem is required.

B. Non-NNBA members, including elders, community leaders, social workers and other appropriate persons may be appointed as guardians ad litem pursuant to appropriate rules and procedures established by the Chief Justice or, until such rules and procedures are established, rules adopted by the appointing court.

C. If an NNBA member is appointed as a guardian ad litem, the provisions of Rule IV shall then apply.

RULE VI.    Pro Bono Service.

A. Except persons listed in Rule II.B.1, 2, and 3, all persons claiming exemption from pro bono appointments² or service or both shall file a statement with the NNBA on or before September 15 of each year which shall set forth the basis for the claimed exemption.

B. All persons claiming exemption under Rule II. C. shall file a statement with the NBA on or before September 15 of each year which shall either waive their exemption from pro bono service and request to be placed on the list for pro bono appointments, or else submit a proposed plan of pro bono service for the forthcoming year.

1. The pro bono plan shall specify the proposed alternative service and the estimated time to be spent on such service.

2. If the NNBA member had a pro bono service plan in effect for the then current year, the member shall include in the plan a summary of his or her service in the current year.

C. By October 31 of each year, the Board of Bar Commissioners of the NNBA shall review these plans and submit the plans together with the NNBA’s recommendations for approval or disapproval to the Navajo Nation Supreme Court.

D. By December 1 of each year, the Navajo Nation Supreme Court shall approve or disapprove the plans and then send out appropriate notice to the NNBA members and the Office of Pro Bono Service.

RULE VII. Pro Bono Requirements for Inactive NNBA Members and Certain Non-NNBA Members.

A. Inactive members of the NNBA are eligible for pro bono appointments unless on or before December 1 of each year such members file a statement with the NNBA which states either that they are not engaged in the practice of law within the territorial jurisdiction of the Navajo Nation or, if they are engaged in the practice of law outside the territorial jurisdiction of the Navajo Nation, that no part of their practice consists of the practice of Navajo law (including representation of the Navajo Nation, but not limited to the giving of opinions on Navajo Nation).

1. Inactive members of the NNBA who did not file such statements shall be placed on the roll of NNBA members eligible for pro bono appointments pursuant to Rule VIII.B.

2. An inactive members of the NNBA who claims exemption from pro bono appointments and service shall follow the procedure set forth in Rule VI. A. An inactive member of the NNBA may volunteer for pro bono appointment or service upon application to the Office of Pro bono Service and under conditions approved by the Navajo Nation Supreme Court.

B. Non-Members of the NNBA who have been permitted to appear in the Navajo Nation courts on a pro hac vice basis shall be eligible for pro bono appointment at the rate of one appointment for each pro hac vice admission.

RULE VIII.   Office of Pro Bono Service.

A. There is created the Office of Pro Bono Service within the Navajo Nation Supreme Court.

B. The Office of Pro Bono Service shall be responsible for keeping and maintaining the pro bono lists as well as the pro bono plans of members exempt from appointments.

C. The procedure for pro bono appointments shall be as follows:

1. The court administrator of a judicial district contacts the Office of Pro Bono Service and advises the office that the court has decided to appoint counsel.

2. If the court order of appointment includes an explicit finding that counsel with some special skills (e.g. Bilingual) is needed and skill needed is set forth in the order, the court administrator shall so advice the office.

3. The Office of Pro Bono Service will then advice the court administrator of the counsel next on the appropriate list for appointment, or if special skill is needed, the counsel next on the appropriate list with that skill.

4. The next eligible person is appointed and the date of appointment is noted on the appropriate list.  Counsel is removed from the list of persons eligible for appointment.

5. The order of appointment is finalized by the judge and sent to counsel with a copy of relevant pleadings and documents from the court file.

a. If the next court event is less than thirty (30) days from the date of appointment, the court administrator calls appointed counsel and advises counsel of appointment and date of next court event.

6. When matter for which appointment was made is completed, the court administrator notifies the Office of Pro Bono Service and counsel is restored to the appropriate list (at bottom).

7. If the Office of Pro Bono Service receives a request for appointment at a time when no counsel are left on the appropriate list, a new list shall be established with counsel listed in order of date of appointment (earliest date first).

8. No person will be appointed to service in any proceeding outside his or her districts without the approval of the Chief Justice.

9. No pro bono appointment may be made except in conformity with these rules, nor may any appointment be made except by persons authorized to do so by these rules.

RULE IX.   Withdrawal of Counsel—Applicable to Cases Under These Rules Only.

A. Any appointed counsel whom, for ethical reasons, believes he or she cannot serve as counsel in a given case shall file a motion to withdraw with the appointing court as soon as possible after the ethical question arises.

B. If a pro bono appointment creates a severe hardship for appointed counsel, appointed counsel may seek to withdraw on that basis.

1.         Prior to seeking to withdraw on hardship grounds, an appointed counsel shall seek to associate with another counsel so that the hardship might be reduced or limited. ³

C. The Navajo Nation courts shall utilize facsimile transmission, telephonic motion hearings and pretrials, scheduling of cases involving the same counsel on the same day, and other aids to help reduce time and expense on appointed counsel.

RULE X. Substitute Counsel.

A. An appointed counsel may arrange for substitute counsel for a particular phase of a case, consisting of a law partner, associate or other bar member.

B. An appointed counsel may arrange for a firm appearance in a case for flexibility and scheduling purposes so that any member of the firm may appear on the counsel’s behalf.

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 ¹ Exempt from the first three (3) appointments which would otherwise be made each year. Once the Office of pro bono service has gone through the pro bono list three (3) times, these individuals' names would be restored to the list.

² Except Rule II.B.6.

³ For example, counsel with offices many miles from the appointing court might be able to work out an arrangement with a local counsel under which the out of area counsel would do the paperwork and the local counsel would make the court appearances.