(a) Right to assigned counsel. – Every defendant who is unable to obtain counsel shall be entitled to have counsel assigned, pursuant to 11 Del. C. § 5103, to represent that defendant at every stage of the proceedings from initial appearance before the committing magistrate or the court through appeal when required by law or deemed appropriate by the court unless, after the court has advised the defendant of the dangers and disadvantages of acting pro se and has found the defendant competent to do so, the defendant waives such appointment.(b) Assignment procedure. – The assignment procedures for implementing the right set out in subdivision (a) shall be those provided by 29 Del. C., c. 46, by this rule or by administrative order. Appointment of counsel for state officers and employees pursuant to 11 Del. C. § 5105 is governed by Supreme Court Rule 68.(c) Joint representation. – Whenever two or more defendants have been jointly charged pursuant to Rule 8(b) or have been joined for trial pursuant to Rule 13, and are represented by the same retained or assigned counsel or by retained or assigned counsel who are associated in the practice of law, the court shall promptly inquire with respect to such joint representation and shall personally advise each defendant of the right to the effective assistance of counsel, including separate representation. Unless it appears that there is good cause to believe no conflict of interest is likely to arise, the court shall take such measures as may be appropriate to protect each defendant’s right to counsel.(d) Disqualification of public defender. – When the court rules that the public defender is disqualified, the court shall assign other counsel. The court may contract with attorneys to serve as assigned counsel when the public defender is disqualified. Fees and disbursements of contract counsel shall be governed by their contracts. Fees and disbursements of contract counsel and of assigned counsel under subdivision (e) of this rule shall be subject to the approval of the Administrative Office of the Courts.(e) Fees and disbursements. – The following procedures shall apply to assigned counsel other than the public defender and contract counsel:
(1) Application. – Assigned counsel shall make separate application for compensation and reimbursement to this court and to each other court before which assigned counsel represents a defendant, except that services before a committing magistrate shall be considered services before this court. An application to this court shall specify the time expended, services rendered and expenses incurred while the case was pending before this court, and all compensation and reimbursement sought, expected or received in the same case from any other source. The court shall set the compensation and reimbursement to be paid to the attorney.(2) Standard for setting fees. – Assigned counsel shall be compensated at a rate not exceeding $60 per hour and shall be reimbursed for expenses reasonably incurred. Compensation paid for services performed in this court shall not exceed $2,000 for each attorney in a case in which 1 or more felonies, or acts of delinquency which would be felonies if committed by an adult, are charged; or $1,000 for each attorney in a case in which only misdemeanors, or lesser acts of delinquency, are charged. These maximum amounts shall not prevent any such attorney from being compensated for services performed in other courts involving the same representation.(3) Waiver of maximum. – Payment to assigned counsel in excess of the maximum amounts provided herein may be made for extended or complex representation if the court finds that the amount of such payment is necessary to provide fair compensation and the payment is approved by the court.(4) Disbursements. – Upon prior application assigned counsel may apply ex parte for funds to pay for transcripts, witness’ travel expenses, or investigative, expert, or other services necessary for adequate representation. Upon finding, after appropriate inquiry, that the expenditures are necessary and that the defendant is financially unable to bear them, the court shall authorize counsel to incur such necessary expenditures in such amounts as the court shall authorize. Such counsel may also make expenditures without prior authorization and subject to later review for investigative, expert or other services or costs necessary for adequate representation, but the total of such expenditures made without prior authorization shall not exceed $200.00.(f) On appeal. – In any case where an indigent defendant appeals to the Supreme Court and the ground of the appeal requires a review of the evidence, counsel shall request the trial judge to be furnished without charge with a copy of the transcript of relevant trial testimony. The cost of the transcript shall be certified by the court for payment. In cases where the Supreme Court certifies to this court the appointment of counsel and the amount set by the Supreme Court as compensation for counsel’s services and expenses, this court shall certify the amount of payment.(g) Recoupment of defense costs. – The court may order recoupment of defense costs pursuant to 10 Del. C., c. 86.
