RULE 44. RIGHT TO COUNSEL
Effective Date: 3/1/2021
(a) Right to Counsel.
(1) Felony Cases. An indigent defendant facing a felony charge in state court is entitled to have counsel provided at public expense to represent the defendant at every stage of the proceeding from initial appearance through appeal, unless the defendant waives this right.
(2) Non-Felony Cases. An indigent defendant facing a non-felony charge in state court is entitled to have counsel provided at public expense to represent the defendant at every stage of the proceeding from initial appearance through appeal, unless the defendant waives this right or the magistrate determines that sentence upon conviction will not include imprisonment.
(3) Non-Indigent Defendants. The court may appoint counsel to represent a defendant at the defendant's expense if the defendant is unable to obtain counsel and is not indigent.
(b) Inquiry Into Joint Representation.
(1) Joint Representation. Joint representation occurs when:
(A) two or more defendants have been charged jointly under Rule 8(b) or have been joined for trial under Rule 13; and
(B) the defendants are represented by the same counsel, or counsel who are associated in law practice.
(2) Court's Responsibilities in Cases of Joint Representation. Except as provided under Rule 44(c)(2), the court must promptly inquire about the propriety of joint representation and must personally advise each defendant of the right to the effective assistance of counsel, including separate representation. Unless there is good cause to believe that no conflict of interest is likely to arise, the court must take appropriate measures to protect each defendant's right to counsel.
(c) Limited and Joint Representation for Pretrial Release.
(1) Limited Representation. The court may permit a limited appearance by counsel for purposes of release from custody under Rule 46. Counsel appearing on a limited basis will be discharged upon the court’s Rule 46 determination.
(2) Joint Representation. The court may permit counsel to jointly represent defendants at an initial appearance under Rule 5 for purposes of establishing pretrial release conditions under Rule 46(a)(1). If joint representation creates an apparent conflict of interest, the court must inquire and advise each defendant under Rule 44(b)(2).
Rule 44 was amended, effective September 1, 1983; March 1, 1990; March 1, 2001 in Supreme Court Docket No. 20000212 & 20000276; March 1, 2004; March 1, 2006; June 1, 2006; March 1, 2021.
Rule 44 is a modification of Fed.R.Crim.P. 44 governing the appointment of counsel. In non-felony cases, counsel for an indigent defendant will be provided when the defendant faces a term of imprisonment, including a suspended sentence of imprisonment or a deferred imposition of sentence, unless imprisonment is waived. In contrast, Fed.R.Crim.P. 44 requires appointment of counsel for all indigent defendants.
Rule 44 was amended, effective June 1, 2006, to remove references to appointment of counsel for indigents. Under N.D.C.C. § 54-61-01(1), courts are responsible for determining whether defendants qualify for indigent defense services. Effective January 1, 2006, however, courts ceased appointing counsel for indigents because the North Dakota Commission on Legal Counsel for Indigents became responsible for the defense of indigents.
Rule 44 was amended, effective September 1, 1983, to add the words "in the courts of this state" in each of the first two sentences to make it clear that counsel for indigent defendants will be provided at public expense only in proceedings through appeal in the courts of North Dakota.
Rule 44 was amended, effective March 1, 1990. The amendments are technical in nature and no substantive change is intended.
Rule 44 was amended, effective March 1, 2001, to authorize an application for financial assistance ex parte. Language allowing application to the court for investigative, expert and related services was deleted, effective June 1, 2006. On January 1, 2006, the North Dakota Commission on Legal Counsel for Indigents became responsible for providing these services to indigent defendants. Authorization for state funded mental health services for certain defendants is governed by N.D.C.C. § 12.1-04.1-02.
Rule 44 was amended, effective March 1, 2006, in response to the December 1, 2002, revision of the Federal Rules of Criminal Procedure. The language and organization of the rule were changed to make the rule more easily understood and to make style and terminology consistent throughout the rules.
Subdivision (b) was added, effective March 1, 2006, to explain the court's duties in situations involving joint representation of multiple defendants. A court inquiry is necessary in these cases because serious conflicts can develop when a single attorney represents defendants who may have different interests.
Subdivision (c) was added, effective March 1, 2021, to provide a procedure for the use of limited and joint representation for pretrial release proceedings.
SOURCES: Joint Procedure Committee Minutes of April 24, 2020, pages 2-3; January 30, 2020, pages 2-7; April 27-28, 2006, pages 2-5, 15-17; January 26, 2006, pages 7-9; January 27-28, 2005, pages 36-37; September 18-19, 2003, pages 27-31; January 27-28, 2000, pages 3-4; September 23-24, 1999, pages 3-6; April 20, 1989, page 4; December 3, 1987, page 15; September 30-October 1, 1982, page 22; October 15-16, 1981, page 15; April 24-26, 1973, page 14; December 11-15, 1972, pages 44-48; May 6-8, 1971, pages 1-11; November 20-21, 1969, pages 3-8; July 10-11, 1969, pages 16-22; Fed.R.Crim.P. 44.
SUPERSEDED: N.D.C.C. §§ 29-07-01, 29-07-04, 29-13-03, 33-12-09.
CONSIDERED: N.D.C.C. §§ 12-59-15, 12.1-04.1-02, 29-01-06, 29-20-01.
CROSS REFERENCE: N.D.R.Crim.P. 5 (Initial Appearance Before the Magistrate); N.D.R.Crim.P. 8 (Joinder of Offenses or Defendants); N.D.R.Crim.P. 13 (Joint Trial of Separate Cases); N.D.R.Crim.P. 43 (Defendant's Presence).