LOCAL RULES
As Amended June 13th, 2003
PREAMBLE
The Court promulgates the following Local Rules to supplement the Federal Rules of Civil Procedure and the Federal Rules of Criminal Procedure. These rules are intended to promote the just, efficient, and economical determination of cases pending in the Middle District of Georgia.
In addition to these Local Rules, the Court also promulgates the Standards of Conduct set forth below. These Standards embody the principles to which most litigating lawyers already adhere and are set forth here for ease of reference to benefit the community, practicing lawyers, and new members of the bar. These Standards are intended to be aspirational and voluntary. They are not intended to generate disputes that may result in additional litigation, and they should not be cited as legal authority in any disciplinary proceeding or in any civil or criminal action. Rather, it is hoped that the Standards will be used as an educational tool with the effect of promoting efficient and respectful conduct of litigation.
STANDARDS OF CONDUCT
A. In his or her representation of a client, a lawyer should conduct himself or herself in a
1. Maintain open communication with opposing lawyers;
2. Communicate respectfully with other lawyers;
3. Respect the schedule of opposing lawyers and be truthful about his or
her
own schedule;
4. Present
issues efficiently without unnecessarily burdening opposing
lawyers
by discovery
or otherwise;
5. Discuss
each issue with opposing lawyers in a good faith attempt to
resolve
it
without
protracted negotiation or unnecessary litigation;
6. Be guided by the principle that representations on behalf of his or her
client
ought
to be characterized by good faith and honesty;
7. Avoid
creating unnecessary animosity or contentiousness;
8. Avoid setting
forth allegations against another lawyer unless relevant to
the
proceeding
and well founded; and
9. Require
those under his or her control to comply with these guidelines
and
encourage
clients and others to do likewise.
B.
The
application of these guidelines to situations frequently occurring in a litigation
practice
are described herein.
The judges of this district express their gratitude to the Boston Bar Association for permission to reprint the Standards of Conduct from the Boston Bar Journal.
LOCAL RULE 3
DIVISIONS OF THE COURT
3.1 SIX DIVISIONS. The United States District Court for the Middle District of Georgia is divided into six divisions: Macon, Columbus, Albany, Athens, Valdosta, and Thomasville. See attached map of district.
3.2 DIVISIONAL CLERK'S OFFICES. Divisional Clerk's Offices are staffed and open at all times in Albany, Athens, Columbus, Macon and Valdosta. When court is in session, the Thomasville Clerk's Office is staffed and open. Thomasville case files are maintained in Valdosta.
3.3 DIVISION FILINGS. Although it is recommended that all pleadings and papers in civil and criminal cases be filed in the divisional office in which the case file is maintained, such pleadings and papers may be filed in any staffed divisional clerk's office within this district. In such event, the clerk of the court shall receive and mark the pleadings and papers filed and promptly forward such pleadings and papers to the divisional office in which the case file is maintained.
Because there are not permanent staff employees in the Thomasville divisional
office, it is recommended that all pleadings and papers in Thomasville Division cases be filed in
the Valdosta divisional office. Any mailings to the Thomasville divisional office will be returned
to the sender by the United States Post Office.
3.4 VENUE IN CIVIL CASES. Plaintiff may file a civil case in the division in which the plaintiff resides, the defendant resides or the claim arose. The clerk of the court is directed to transfer to the appropriate division any civil case that is filed in a division in which neither the plaintiff or defendant resides nor the claim arose.
LOCAL RULE 5
FILING WITH THE COURT
5.1 FILING OF DISCOVERY. Disclosures under F.R.Civ.P. 26(a)(1) or (2) and the following discovery requests and responses must not be filed until they are used in the proceeding or the court orders filing: (a) depositions, (b) interrogatories, (c) request for documents or to permit entry upon land, and (d) requests for admission. Disclosures under F.R.Civ.P. 26(a)(3), however, must be promptly filed as provided in Rule 26 (a)(3).
Any use of discovery materials in court in connection with a motion, a pretrial conference under Rule 16, or otherwise, will require the filing of the discovery materials. To file discovery, counsel must attach a signed statement certifying that the discovery documents have been either used in the proceedings or ordered filed by the court.
5.2 ACCEPTANCE OF FACSIMILE TRANSMISSIONS. Filings by facsimile transmission will only be accepted in compelling circumstances and only with prior authorization from any district judge, magistrate judge, the clerk or chief deputy of the court. The routine filing of pleadings will not be authorized by facsimile transmission.
5.3 AFTER FILING FACSIMILE TRANSMISSIONS. After receiving authorization to file pleadings by facsimile transmission, counsel shall immediately file the original pleading by conventional means. Upon receipt in the Clerk's Office the original will be filed nunc pro tunc to the receipt date of the facsimile transmission copy. The court may, at its election, act upon the facsimile transmission copy prior to receipt of the original.
In the event that a document is transmitted by facsimile machine without prior authorization, the filing party will be notified that the documents will not be accepted for filing and that filing must instead be accomplished by conventional means.
LOCAL RULE 6
CONTINUANCES AND EXTENSIONS OF TIME
6.1 GENERALLY. A continuance of any trial, pretrial conference, or other hearing will be granted only by the court on its own motion or on motion of any party. Continuances may not be obtained by stipulation between counsel.
Any extensions of time within which to answer the complaint by affirmative defenses or other defensive pleadings may be done by written, filed stipulations of counsel, not to exceed more than 30 days from the original answer deadline without approval of the court. If a party is unable to obtain a stipulation or if more than thirty (30) days is needed, the party should seek an extension by motion to the court pursuant to Rule 6(b) of the Federal Rules of Civil Procedure.
6.2 EXTENSIONS FOR FILING OF BRIEFS. In civil cases, the clerk of the court and
his deputies are authorized to permit extensions of time to a date certain not to exceed fourteen
(14) days for the filing of briefs. No more than one (1) such extension may be granted by the clerk
for the same brief. Permission of the court must be obtained for any additional extensions. A
party requesting an additional extension must do so by written motion filed no later than two (2)
business days before the expiration of the extension granted by the clerk. The motion shall state
why an additional extension is needed.
6.3 CALCULATION OF TIME.
7.1 FILING. Unless the assigned judge prescribes otherwise, every motion filed in a civil proceeding shall be accompanied by a memorandum of law citing supporting authorities. Civil motions that include allegations of fact must be supported by a statement of fact. This rule does not apply to motions for enlargement of time. Where possible, multiple motions filed at the same time, in the same case, shall be consolidated into one motion with multiple, clearly labeled parts and subparts.
7.2 RESPONSE. Respondent's counsel desiring to submit a response, brief, or affidavits shall serve the same within twenty (20) days after service of movant's motion and brief.
7.3 REPLY. Movant's counsel shall serve any desired reply brief, argument, or affidavit
within ten (10) days after service of respondent's response, brief, or affidavit.
7.3.1 SUBSEQUENT BRIEFS.
7.4 PAGE LIMITATION. Except upon good cause shown and leave given by the court, all briefs in support of a motion or in response to a motion are limited in length to twenty (20) pages; the movant's reply brief may not exceed ten (10) pages. A party seeking permission to exceed these limitations shall do so by filing a written motion no later than two (2) business days in advance of the deadline for filing the brief and by specifying the number of pages requested.
7.5 HEARINGS.
All motions shall be decided by the court without a hearing unless otherwise
ordered by the court on its own motion or in its discretion upon request
of counsel.
Counsel desiring a hearing on a motion must make a request by written motion.
7.6 MOTIONS
FOR RECONSIDERATION. Motions for Reconsideration
shall not be filed as a matter of routine practice. Whenever a party or attorney for a party believes it is absolutely necessary to file a motion to reconsider an order or judgment, the motion shall be filed with the Clerk of court within ten (10) days after entry of the order or judgment. Responses shall be filed not later than ten (10) days after service of the motion. All briefs are limited to five (5) pages. There shall be no reply brief.
Any
requests for extensions of time for the filing of briefs with respect
to a motion for reconsideration must be directed to the judge. The
Clerk’s Office is not authorized to grant any
such extensions. Parties and attorneys for the parties shall not file motions to reconsider the
court’s denial or grant of a prior motion for reconsideration.
7.7 MOTIONS
EXCEPTED FROM STANDARD BRIEFING SCHEDULE. The following motions
may be considered by the Court immediately after filing: motions
for extension of time, motions to exceed the page limitation, motions
for
hearings, motions
to file surreply briefs,
motions which clearly have no basis in law, and such other motions
as the Court may otherwise determine from the parties to be unopposed
or in
which
the
Court may clearly determine from the
record before it the relative legal positions of the parties so as
to obviate the need for the filing of opposition thereto. Objections
to the
motions
will be entertained even after entry of an order on
the motion, however. Any party desiring to submit an objection to one of the
foregoing motions must file a written objection within five (5) days after service
of the motion.
LOCAL RULE 8
PRIVACY POLICY REGARDING PUBLIC ACCESS TO ELECTRONIC CASE FILES
In compliance with the E-Government Act of 2002, a party wishing to file a document containing the personal data identifiers listed above may file an unredacted document under seal. This document shall be retained by the court as a part of the record. The filing party shall, however, also file a redacted copy for the public file.
The responsibility for redacting these personal identifiers rests solely with counsel and the
parties. The Clerk will not review each pleading for compliance with this rule.
LOCAL RULE 9
SOCIAL SECURITY APPEALS
9.1 JUDICIAL REVIEW. Judicial review of any final decision of the Secretary is obtained by filing a civil action pursuant to 42 U.S.C. § 405(G) alleging that the Secretary's decision should be modified, reversed, or remanded. As the term "review" indicates, the court in such cases is acting as a quasi appellate court. Its task is to affirm, modify, remand, or reverse the Secretary's decision, and the standard for doing so is as set forth in the statute. Motions for summary judgment are not appropriate since the issue is not whether there is any genuine issue as to any material fact; instead, it is whether the Secretary's findings of fact are supported by substantial evidence.
9.2 BRIEFING SCHEDULE. After service of an answer by the Secretary, claimant will have thirty (30) days within which to file his brief. The Secretary must then submit a brief within thirty (30) days after receipt of claimant's brief. Within five (5) days after receiving the Secretary's brief, claimant may submit a reply brief if so desired.
9.3 EXTENSIONS OF TIME. The Clerk of court and his deputy clerks are authorized to grant one extension of time for filing briefs in social security appeals. The party seeking the extension must make his request in writing with a copy to opposing counsel. Reasonable requests for extensions of time will be granted. If either party needs any additional extensions of time for filing briefs, they must make their request by way of a motion to the court.
LOCAL RULE 16.1
PRETRIAL CONFERENCES AND PROCEDURES
16.1.1 PRETRIAL CONFERENCE. A civil case may be scheduled for pretrial conference anytime after the expiration of the discovery period. Counsel who will actually try the case and other counsel of record with authority to define issues, make stipulations and discuss settlement, shall attend the pretrial conference.
16.1.2 PRETRIAL ORDER. The parties shall submit a jointly proposed pretrial order in the form prescribed by the assigned judge on the date specified in the notice of the pretrial conference. When entered by or at the direction of the assigned judge, the pretrial order shall supersede all prior pleadings, shall control the trial of the case, and shall be amended only by order of the court and only upon a showing of good cause.
LOCAL RULE 16.2
COURT ANNEXED ARBITRATION
16.2.1 STATEMENT OF PURPOSE. It is the purpose of the Court, through adoption and implementation of this rule, to provide an alternative mechanism for the resolution of civil disputes (a Court annexed, voluntary arbitration procedure) leading to an early disposition of many civil cases with resultant savings in time and costs to the litigants and to the Court, but without sacrificing the quality of justice to be rendered or the right of the litigants to a full trial de novo on demand.
16.2.2 CERTIFICATION OF ARBITRATORS.
(a) The Chief Judge or his designee judge shall certify those persons who are eligible and qualified to serve as arbitrators under this rule, in such numbers as he shall deem appropriate, and shall have complete discretion and authority to thereafter withdraw the certification of any arbitrator at any time.
(b) An individual may be certified to serve as an arbitrator under this rule if:
(1) He has been for at least ten years a member of a State Bar;
(2) He is admitted to practice before this Court or any other United
States
District Court;
(3) He is determined by the Chief Judge to be competent to perform
the
duties of an arbitrator.
(c) Each individual certified as an arbitrator shall take the oath or affirmation prescribed by 28 U.S.C. § 453 before serving as an arbitrator. Current lists of all persons certified as arbitrators in each Division of the Court, respectively, shall be maintained in the office of the Clerk. Depending upon the availability of funds from the Administrative Office of the United States Courts, or other appropriate agency, arbitrators shall be compensated for their services in such amounts and in such manner as the Chief Judge shall specify from time to time by standing order; and no arbitrator shall charge or accept for his services any fee or reimbursement from any other source whatever absent written approval of the Court given in advance of any such payment. Any member of the bar who is certified and designated as an arbitrator pursuant to these rules shall not for that reason be disqualified from appearing and acting as counsel in any other case pending before the Court.
(d) Any person selected as an arbitrator may be disqualified for bias or prejudice as provided in 28 U.S.C. § 144, and shall disqualify himself in any action in which he would be required to do so if he were a justice, judge, or magistrate judge governed by 28 U.S.C. § 455.
16.2.3 CASES TO BE ARBITRATED.
(a) All civil actions, except those identified in Local Rule 26c, shall be referred by the Clerk to arbitration in accordance with this section subject to the right of any party to opt-out as provided hereafter in section 16.2.4. By not opting-out as provided in section 16.2.4, the court will presume that a party has freely and knowingly consented to the arbitration process. No party or attorney will be prejudiced by refusing to consent to arbitration.
(b) Cases pending at the time of implementation of the arbitration program may be put into the program if the case has not already been pretried and if the presiding judge so directs.
(c) The arbitration process will not interfere with the normal progression of a case through the discovery process. Federal Rules of Civil Procedure Rule 16(b) Scheduling Orders will still be requested of the parties and it is expected that a certain amount of discovery will have been completed prior to the arbitration hearing.
16.2.4 PROCEDURE.
(a) In any civil action subject to arbitration pursuant to Rule 16.2.3, the Clerk shall notify the parties within twenty (20) days after an answer has been filed that the action is being referred to arbitration in accordance with these rules. [If a motion to dismiss is filed in lieu of an answer the case will be referred to arbitration after the motion has been ruled on. Pending motions other than motions to dismiss will not delay arbitration.] Within twenty (20) days thereafter, by written notice to the Clerk, either party may exercise its right to opt-out of arbitration. Upon the expiration of such twenty (20) day period and in absence of timely notice of desire to withdraw from arbitration, the Clerk will begin the arbitrator selection process. First, three (3) names will be chosen from the arbitrator list and mailed to the parties. Each party will be allowed to strike or reject confidentially one of the three names. The one name remaining (or the first name on the list if more than one name is left) will be selected as the arbitrator.
(b) Upon selection and designation of the arbitrator, the Clerk shall communicate with the parties and the arbitrator in an effort to ascertain a mutually convenient date for a hearing, and shall then schedule and give notice of the date and time of the arbitration hearing which shall be held in space to be provided in a United States Courthouse. The hearing shall be scheduled within ninety (90) days from the date of the selection and designation of the arbitrator on at least twenty (20) days notice to the parties. Any continuance of the hearing beyond that ninety (90) day period may be allowed only by order of the Court for good cause shown.
(c) The award of the arbitrator shall be filed with the Clerk within ten (10) days following the hearing, and the Clerk shall give immediate notice to the parties.
(d) At the end of thirty (30) days after the filing of the arbitrator's award the Clerk shall enter judgment on the award if no timely demand for trial de novo has been made. If the parties have previously stipulated in writing that the award shall be final and binding, the Clerk shall enter judgment on the award when filed.
(e) Within thirty (30) days after the filing of the arbitration award the Clerk, any party may demand a trial de novo in District Court. Written notification of such a demand shall be filed with the Clerk and a copy shall be served by the moving party upon all other parties.
16.2.5 ARBITRATION HEARING.(a) The award shall state the result reached by the arbitrator without necessity of factual findings or legal conclusions.
(b) The contents of any arbitration award shall not be made known to any judge who might be assigned to the case --
(1) Except as necessary for the Court to determine whether to assess costs or attorney fees under 28 U.S.C. § 655,
(2) Until
the District Court has entered final judgment in the action or
the action
has
been otherwise
terminated,
or
(3) Except
for purposes of preparing the report required by § 903bof
the
Judicial Improvements and Access to Justice Act.
16.2.7 TRIAL DE NOVO.
(a) Upon a demand for a trial de novo the action shall be placed on the calendar of the Court and treated for all purposes as if it had not been referred to arbitration, and any right of trial shall be preserved inviolate.
(b) At the trial de novo the Court shall not admit evidence that there has been an arbitration proceeding, the nature or amount of the award or any other matter concerning the conduct of the arbitration proceeding, except that testimony given at an arbitration hearing may be used for any purpose otherwise permitted by the Federal Rules of Evidence or the Federal Rules of Civil Procedure.
(c) No penalty for demanding a trial de novo shall be assessed by the Court.
16.2.8 MEDIATION ENCOURAGED. Private mediation at the expense of the parties
is also encouraged by the court. With the consent of all parties, the court will assist in the
scheduling of mediation and the selection of a mediator.
LOCAL RULE 26
DISCOVERY PLAN AND ORDER
A. After responsive pleadings are filed in civil cases (except those hereafter identified as exempt), the parties shall confer to discuss the nature and basis of their claims and the possibilities for a prompt settlement. The court will order the parties to develop a proposed scheduling/discovery order and will describe the required contents of the order and set a deadline for its filing.
B. After receiving the proposed, combined order, the court may consult with counsel by conference, telephone or mail before entering an order.
C. The following categories of civil cases are exempt from this Rule and from the initial disclosure requirements of F.R.Civ.P. 26(a)(1):
1. an action brought without counsel by a person in custody of the
United States,
a state, or a state subdivision;
2. an action for review on an administrative record;
3. an action to enforce or quash an administrative summons or subpoena;
4. a petition for habeas corpus or other proceeding to challenge a criminal conviction
or
sentence;
5. an action by the United States to recover benefit payments;
6. an action by the United States to collect on a student loan guaranteed by
the
United States;
7. a
proceeding ancillary to proceedings in other courts; and
8. an
action to enforce an arbitration award.
LOCAL RULE 30
DEPOSITIONS
*** As in a case where the witness is not offered for deposition by either party.
LOCAL RULE 33.1
INTERROGATORIES
Except with written permission of the court first obtained, interrogatories may not exceed twenty-five (25) to each party. Form, canned, excessive-in-number interrogatories are not usually approved. The answering party must retype the questions with the answers and/or objections following immediately thereafter.
MANDATORY INTERROGATORIES TO BE
ANSWERED BY ALL PLAINTIFFS AND DEFENDANTS
“DELETED”
Note: Pursuant to the December 1, 2000 Amendments to the Federal Rules of Civil
Procedure, all parties are now required to make initial disclosures under Rule 26(a)(1)
and the court concluded that its mandatory interrogatories were, therefore, no longer
necessary.
LOCAL RULE 33.3
RICO INTERROGATORIES
LOCAL RULE 34
REQUESTS FOR PRODUCTION OF DOCUMENTS AND THINGS
LOCAL RULE 36
REQUESTS FOR ADMISSIONS
Except with written permission of the court first obtained, requests for admissions under Rule 36 of the Federal Rules of Civil Procedure may not exceed fifteen (15) requests to each party.
LOCAL RULE 37
MOTIONS TO COMPEL
Motions to compel disclosure or discovery will not be considered unless they contain a statement certifying that movant has in good faith conferred or attempted to confer with the opposing party in an effort to secure the information without court action.
CIVIL
JURIES
48.1
JURIES.
All civil actions shall be tried to a jury of twelve members and
all jurorsshall participate in the verdict unless excused from service
by the court. Unless the parties stipulate otherwise, (1) the verdict shall
be unanimous, and (2) no verdict may be taken from a
jury of fewer than six members.
48.2 JUROR
QUESTIONNAIRES.
Questionnaires completed by prospective jurors and
information obtained
from the questionnaires are for the exclusive use of the court
and parties to cases scheduled for trial and shall only be used for purposes
of jury selection. Attorneys for parties may check out completed
questionnaires from the Clerk’s
Office. Immediately after trial, attorneys shall destroy all copies
of completed
questionnaires and any other documents containing information obtained
from the completed
questionnaires.
LOCAL RULE 54.1
MOTIONS FOR ATTORNEY'S FEES
In all cases in which the prevailing party is entitled to an award of attorney's fees, a motion for attorney's fees must be filed within fourteen (14) days from the entry of judgment by the clerk unless otherwise provided by statute. Failure to file such a motion within the prescribed time period will be deemed a waiver of attorney's fees. All motions for attorney's fees when filed shall include, the following:
A. An itemized bill in which all segments of time are identified as to the nature of the workTAXATION OF COSTS
54.2.1 GENERALLY. The clerk of the court shall tax costs as authorized by the law in all civil cases. See Fed.R.Civ.P. 54(d). The requests for taxation of costs by the prevailing party shall be made on a Bill of Costs form provided by the clerk. The Bill of Costs form shall be supplemented with citations of authority and copies of invoices and other supporting documentation. Opposing counsel will be given the opportunity to respond to the prevailing party's Bill of Costs.
54.2.2 TIME FOR FILING. A Bill of Costs must be filed by the prevailing party within thirty (30) days from the entry of the judgment that awarded the costs. Opposing counsel shall have twenty (20) days from the service of the Bill of Costs to file a response.
LOCAL RULE 56
SUMMARY JUDGMENTS - STATEMENT OF FACTS REQUIRED
The movant for summary judgment under Rule 56 of the Federal Rules of Civil Procedure shall attach to the motion a separate and concise statement of the material facts to which the movant contends there is no genuine issue to be tried. Each material fact shall be numbered separately. Statements in the form of issues or legal conclusions (rather than material facts) will not be considered by the court. Affidavits and the introductory portions of briefs do not constitute a statement of material facts.
The respondent to a motion for summary judgment shall attach to the response a separate and concise statement of material facts, numbered separately, to which the respondent contends there exists a genuine issue to be tried. Response shall be made to each of the movant’s numbered material facts. All material facts contained in the moving party’s statement which are not specifically controverted by the respondent in respondent’s statement shall be deemed to have been admitted, unless otherwise inappropriate. The response that a party has insufficient knowledge to admit or deny is not an acceptable response unless the party has complied with the provisions of Rule 56(f) of the Federal Rules of Civil Procedure.
All documents and other record materials relied upon by a party moving for or opposing a motion for summary judgment shall be clearly identified for the court. Where possible, dates, specific page numbers, and line numbers shall be given.
LOCAL RULE 72
UNITED STATES MAGISTRATE JUDGE DUTIES
72.1 DUTIES
UNDER 28 U.S.C. § 636(a). Each full-time United States Magistrate
Judge for the Middle District of Georgia is authorized and empowered (except as otherwise
ordered by a district judge) to conduct proceedings in the following matters and to enter such
orders, verdicts, judgments, sentences, findings and/or recommendations relating thereto,
consistent with the Constitution and laws of the United States:
1. All
petty offenses, which include Class B misdemeanors, Class C
misdemeanors,
and infractions. All Class A misdemeanors, subject to the
provisions
regarding consent
of the defendant set forth in 18 U.S.C. §
3401(b).
2.
All
cases brought by prisoners filed under 42 U.S.C. § 1983 or Bivens vs.
Six
Unknown Agents of the Federal Bureau of Narcotics, 403 U.S. 388
(1970);
3.
All
applications for post-trial relief made by individuals convicted of
criminal
offenses,
including, but not limited to, motions for writs of
habeas
corpus under
28 U.S.C. § 2241 et. seq., § 2254, and § 2255;
4. All
social security appeals;
5. All actions filed pursuant to provisions of Title VII of the Civil Rights Act
of 1964, as amended if referred by a district judge; and
6. Such other civil actions referred by a judge of this court for trial and/or
disposition provided all parties therein consent.
72.2 NONDISPOSITIVE PRETRIAL MATTERS. In accordance with 28 U.S.C. § 636(b)(1)(A), magistrate judges shall hear and determine all pretrial criminal and civil matters assigned by the judges of this court except a motion of injunctive relief, for judgment on the pleadings, for summary judgment, to dismiss or quash an indictment or information made by the defendant, to suppress evidence in a criminal case, to dismiss or to permit maintenance of a class action, to dismiss for failure to state a claim upon which relief can be granted, and to involuntarily dismiss an action.
72.3 DISPOSITIVE PRETRIAL MATTERS. In accordance with 28 U.S.C.
§ 636(b)(1)(B), magistrate judges are hereby authorized and empowered at the election of the district judge to conduct hearings, including evidentiary hearings, and to submit to the judges of this court PROPOSED FINDINGS OF FACT AND RECOMMENDATIONS for the disposition by said judges of the following motions: a motion of injunctive relief, for judgment on the pleadings, for summary judgment, to dismiss or quash an indictment or information made by the defendant, to suppress evidence in a criminal case, to dismiss or to permit maintenance of a class action, to dismiss for failure to state a claim upon which relief can be granted, and to involuntarily dismiss an action.
LOCAL RULE 73
SPECIAL MASTER REFERENCES AND TRIAL BY CONSENT
A. In accordance with 28 U.S.C. § 636 (b)(2), magistrate judges are hereby authorized and empowered to serve as a special master upon specific designation by the judge to whom said matter is assigned.
B. Under 28 U.S.C. § 636(c), and with the consent of all parties, magistrate judges are specifically authorized and empowered to conduct any and all proceedings in a jury or non-jury civil matter and to order the entry of judgment therein.
LOCAL RULE 79
FILES AND EXHIBITS AND REMOVAL THEREOF
Sensitive exhibits received in evidence, which shall include but are not limited to,
drugs, articles of high monetary value, weapons or contraband of any kind shall be entrusted to
the custody of the United States Attorney or to the arresting or investigative agency of the
government, who will maintain the integrity of these exhibits pending disposition of the case and
for any appeal period thereafter.
LOCAL RULE 83.1
ATTORNEYS
83.1.1 ADMISSIONS
a. ROLL OF ATTORNEYS. The bar of this Court shall consist of those persons heretofore admitted to practice in this court and those who may hereafter be admitted in accordance with this rule.
b. ELIGIBILITY. To be eligible to practice in this court an attorney must have been admitted to practice in the trial courts of the State of Georgia and be an active member in good standing of the State Bar of Georgia. Only attorneys who are admitted to practice in this Court, or who have otherwise obtained permission under Rule 83.1.2c, may appear as counsel.
c. PROCEDURE FOR ADMISSION.
1. Each applicant for admission to the bar of this Court shall file with the clerk a83.1.2 DUTIES
a. DESIGNATION OF LEAD COUNSEL. In civil cases only, counsel shall designate the name, address, and telephone number of the attorney who shall act as lead counsel in the case on the signature page of the first pleading filed in every action. In the absence of such designation, the first name appearing on the pleading shall be designated lead counsel. Any subsequent change in lead counsel shall be noted by the filing of a notice.
b. BAR NUMBERS. All counsel are required to designate their State Bar of Georgia Number on the signature page of each pleading filed.
c. PERMISSION TO PRACTICE IN A PARTICULAR CASE. Any member in good standing of the bar of any other district court of the United States who is not a member of the State Bar of Georgia and who does not reside in or maintain an office in this state for the practice of law, will be permitted to appear and participate in a particular case, civil or criminal, in this court subject to the following provisions:
1. In a civil case in which a party is represented only by counsel not a member of83.1.3 ENTRY OF APPEARANCE. No Attorney shall appear in that capacity before this court until he has entered an appearance by filing a signed entry of appearance form or by filing a signed pleading in a pending action. An entry of appearance shall state (1) the style and number, (2) the identity of the party for whom the appearance is made, and (3) the name and current office address and telephone number of the attorney. The filing of any pleading, unless otherwise specified by the court, shall constitute an appearance by the person(s) signing such pleading.
83.1.4 WITHDRAWAL OF ATTORNEYS IN CIVIL CASES. It is the longstanding policy of this court that attorneys will investigate claims before filing a complaint and, if a complaint is filed, that the attorney will remain with the case until its conclusion. Nevertheless, if there is a compelling reason to withdraw, the attorney must comply with the following procedure.
An attorney (other than a government attorney) appearing of record in any action pending in this district, who wishes to withdraw as counsel for any party therein, shall submit a written motion for an order of court permitting such withdrawal. Such motion shall state that the attorney has given due written notice to his client respecting such intention to withdraw ten (10) days (or such lesser time as the court may permit in any specific instance) prior to submitting the request to the court and/or that such withdrawal is with the client’s consent. Such request may be granted unless in the judge’s discretion to do so would delay the trial of the action or otherwise interrupt the orderly operation of the court or be manifestly unfair to the client. The attorney requesting an order permitting withdrawal shall give notice to opposing counsel and shall file with the clerk in each such action and serve upon his client personally or at his last known address, a notice which shall contain at least the following information:
a. that the attorney wishes to withdraw;The client shall have ten (10) days from the date of the notice to file objections to the withdrawal. If the court enters an order permitting withdrawal, the client shall be notified at his last know address by the Clerk’s Office of the effective date of the withdrawal; thereafter all notices or other papers may be served on the party directly by mail at the last known address of the party until new counsel enters an appearance. Ordinarily, the court will expect the filing of a Notice of Appearance by substitute counsel contemporaneous with the filing of the Motion to Withdraw.
83.1.5 LEAVES OF
ABSENCE. Formal applications by attorneys for leaves of
absence should not be filed and will not be acted upon unless the attorney
has been notified by the court to appear during the time he wishes to
be absent.
LOCAL RULE 83.2
RULES GOVERNING ATTORNEY DISCIPLINE
Prefatory Statement
Nothing contained in these rules shall be construed to deny the Court its inherent power to maintain control over the proceedings conducted before it nor to deny the Court those powers derived from statute, rule of procedure, or other rules of court.
When alleged attorney misconduct is brought to the attention of the Court, whether by a Judge of the Court, any lawyer admitted to practice before the Court, any officer or employee of the Court, or otherwise, the Court may, in its discretion, dispose of the matter through the use of its inherent, statutory, or other powers; refer the matter to an appropriate state bar agency for investigation and disposition; refer the matter to the local grievance committee as hereinafter defined; or take any other action the court deems appropriate including referring the matter for possible investigative and criminal prosecution. These procedures are not mutually exclusive.
83.2.1 STANDARDS FOR PROFESSIONAL CONDUCT
a. Acts or omissions by an attorney admitted to practice before this Court, individually or in concert with any other person or persons, which violate the Code of Professional Responsibility or Rules of Professional Conduct adopted by this Court shall constitute misconduct and shall be grounds for discipline, whether or not the act or omission occurred in the course of an attorney/client relationship. Attorneys practicing before this Court shall be governed by this Court's Local Rules, by the Rules of Professional Conduct adopted by the highest court of the state in which this Court sits, as amended from time to time by that state court, and, to the extent not inconsistent with the preceding, the American Bar Association Model Rules of Professional Conduct, except as otherwise provided by specific Rule of this Court.
b. Discipline for misconduct defined in these rules may consist of (a) disbarment, (b) suspension, (c) reprimand, (d) monetary sanctions, (e) removal from this Court's roster of attorneys eligible for practice before this Court, or (f) any other sanction the Court may deem appropriate.
83.2.2 GRIEVANCE COMMITTEE
a. The Court, consisting of the active Judges thereof, may appoint a [at least one] standing committee consisting of at least five members of the bar to be known as the "Grievance Committee." One of those first appointed shall serve a term of one year; two for two years; and the remainder and all thereafter appointed for a term of three years. Each member shall serve until his or her successor has been appointed. The Court may vacate any such appointment at any time. The Court shall designate one of the members to serve as chairman. A majority of the committee shall constitute a quorum.
b. Purpose and Function
The purpose and function of the Committee is to conduct, upon referral by the Court, investigations of alleged misconduct of any member of the Bar of this Court, or any attorney appearing and participating in any proceeding before the Court; to conduct, upon referral by the Court, inquiries and investigations into allegations of inadequate performance by an attorney practicing before the Court, as hereinafter provided; to conduct and preside over disciplinary hearings when appropriate and as hereinafter provided; and to submit written findingsand recommendations to the Court for appropriate action by the Court, except as otherwise described herein. The members of the Grievance Committee, while serving in their official capacities, shall be considered to be representatives of and acting under the powers and immunities of the Court, and shall enjoy all such immunities while acting in good faith and in their official capacities.
c. Jurisdiction and Powers
1. The
Court may, in its discretion, refer to the Committee
any
accusation or
evidence
of misconduct by way of violation of the disciplinary rules on the
part
of any member of
the
bar with
respect to any
professional
matter before
this
such an investigation, hearing,
and report as the Court deems advisable.
The
Committee may, in
its discretion,
refer
such matters to an appropriate
State
Bar for preliminary investigation, or may request the
Court to appoint
special
counsel to assist in or exclusively conduct such proceedings, as
hereinafter
provided in these rules. (See Rule 83.2.11, infra.).
The Court may
also,
in its discretion, refer to the Committee any matter concerning
an
attorney's
failure to maintain
an adequate level of competency in his or her
practice
before this Court, as hereinafter
provided. (See Rule 83.2.8, infra.).
The
Committee may under no circumstances initiate
and investigate such
matters
without
prior referral
by the Court.
2. The
Committee shall be vested with such powers as are necessary to conduct
the
proper and expeditious disposition of any matter referred by the
Court, including
the
power to compel the attendance
of witnesses,
to
take or cause to be taken the
deposition
of any witnesses, and to order the production of books, records, or other
documentary
evidence, and those powers described elsewhere in these rules. The
Chairman,
or in his or her absence each
member of the Committee, has the power to
administer
oaths and affirmations
to witnesses.
83.2.3 DISCIPLINARY PROCEEDINGS
a. When misconduct or allegations of misconduct which, if substantiated, would warrant discipline on the part of an attorney admitted to practice before this Court shall come to the attention of a Judge of this Court, whether by complaint or otherwise, the Judge may, in his or her discretion, refer the matter to the Grievance Committee for investigation and, if warranted, the prosecution of formal disciplinary proceedings or the formulation of such other recommendation as may be appropriate.
b. Should the Grievance Committee conclude, after investigation and review, that a formal disciplinary proceeding should not be initiated against an attorney because sufficient evidence is not present or for any other valid reason, the Committee shall file with the Court a recommendation for disposition of the matter, whether by dismissal, admonition, deferral, or any other action. In cases of dismissal, the attorney who is the subject of the investigation need not be notified that a complaint has been submitted or of its ultimate disposition. All investigative reports, records and recommendations generated by or on behalf of the Committee under such circumstances shall remain strictly confidential.
c. If the Committee concludes from preliminary investigation, or otherwise, that probable cause exists, the Committee shall file with the Court a written report of its investigation, stating with specificity the facts supporting its conclusion, and shall apply to the Court for the issuance of an order requiring the attorney to show cause within thirty (30) days after service of that order why the attorney should not be disciplined. The order to show cause shall set forth the particular act or acts of conduct for which he or she is sought to be disciplined. A copy of the Committee's written report should be provided to the attorney along with the show cause order. The accused attorney may file with the Committee within ten days of service of the order a written response to the order to show cause. After receipt of the attorney's response, if any, the Committee may request that the Court rescind its previously issued order to show cause. If the show cause order is not rescinded, and upon at least ten days notice, the cause shall be set for hearing before the Committee. A record of all proceedings before the Committee shall be made, and shall be made available to the attorney. That record, and all other materials generated by or on behalf of the Committee or in relation to any disciplinary proceedings before the Committee, shall in all other respects remain strictly confidential unless and until otherwise ordered by the Court. In the event the attorney does not appear, the Committee may recommend summary action and shall report its recommendation forthwith to the Court. In the event that the attorney does appear, he or she shall be entitled to be represented by counsel, to present witnesses and other evidence on his or her behalf, and to confront and cross examine witnesses against him. Except as otherwise ordered by the Court or provided in these Rules, the disciplinary proceedings before the Committee shall be guided by the spirit of the Federal Rules of Evidence. Unless he or she asserts a privilege or right properly available to him under applicable federal or state law, the accused attorney may be called as a witness by the Committee to make specific and complete disclosure of all matters material to the charge of misconduct.
d. Upon completion of a disciplinary proceeding, the Committee shall make a full written report to the Court. The Committee shall include its findings of fact as to the charges of misconduct, recommendations as to whether or not the accused attorney should be found guilty of misconduct justifying disciplinary actions by the Court, and recommendations as to the disciplinary measures to be applied by the Court. The report shall be accompanied by a transcript of the proceedings before the Committee, all pleadings, and all evidentiary exhibits. A copy of the report and recommendation shall also be furnished the attorney. The Committee's written report, transcripts of the proceedings, and all related materials shall remain confidential unless and until otherwise ordered by the Court.
f. Upon receipt of the Committee's finding that misconduct occurred, the Court shall issue an order requiring the attorney to show cause why the Committee's recommendation should not be adopted by the Court. The Court may, after considering the attorney's response, by majority vote of the active Judges thereof, adopt, modify, or reject the Committee's findings that misconduct occurred, and may either impose those sanctions recommended by the Committee or fashion whatever penalties provided by the rules which it deems appropriate.
83.2.4 ATTORNEYS CONVICTED OF CRIMES
a. Upon the filing with this Court of a certified copy of a judgment of conviction demonstrating that any attorney admitted to practice before the Court has been convicted in any court of the United States, or the District of Columbia, or of any state, territory, commonwealth, or possession of the United States of any serious crime as herein defined, the Court shall enter an order immediately suspending that attorney, whether the conviction resulted from a plea of guilty, nolo contendere, verdict after trial, or otherwise, and regardless of the pendency of any appeal. The suspension so ordered shall remain in effect until final disposition of the disciplinary proceedings to be commenced upon such conviction. A copy of such order shall be immediately served upon the attorney. Upon good cause shown, the Court may set aside such order when it appears in the interest of justice to do so.
b. The term "serious" crime shall include any felony and any lesser crime a necessary element of which, as determined by the statutory or common law definition of such crime in the jurisdiction in which it was entered, involves false swearing, misrepresentation, fraud, deceit, bribery, extortion, misappropriation, theft, or the use of dishonesty, or an attempt, conspiracy, or solicitation of another to commit a "serious crime."
c. A certified copy of a judgment of conviction of an attorney for any crime shall be conclusive evidence of the commission of that crime in any disciplinary proceeding instituted against that attorney based on the conviction.
d. Upon the filing of a certified copy of a judgment of conviction of any attorney for a serious crime, the Court may, in addition to suspending that attorney in accordance with the provisions of this rule, also refer the matter to the Grievance Committee for institution of disciplinary proceedings in which the sole issue to be determined shall be the extent of the final discipline to be imposed as a result of the conduct resulting in the conviction, provided that a disciplinary proceeding so instituted will not be brought to final hearing until all appeals from the conviction are concluded.
e. An attorney suspended under the provisions of this rule will be reinstated immediately upon the filing of a certificate demonstrating that the underlying conviction of a serious crime has been reversed, but the reinstatement will not terminate any disciplinary proceedings then pending against the attorney, the disposition of which shall be determined by the Committee on the basis of all available evidence pertaining to both guilt and the extent of the discipline to be imposed.
83.2.5 DISCIPLINE IMPOSED BY OTHER COURTS
a. An attorney admitted to practice before this Court shall, upon being subjected to suspension or disbarment by a court of any state, territory, commonwealth, or possession of the United States, or upon being subject to any form of public discipline, including but not limited to suspension or disbarment, by any other court of the United States or the District of Columbia, promptly inform the Clerk of this Court of such action.
b. Upon the filing of a certified copy of a judgment or order demonstrating that an attorney admitted to practice before this Court has been disciplined by another court as described above, this Court may refer the matter to the Grievance Committee for a recommendation for appropriate action, or may issue a notice directed to the attorney containing:
1. A copy of the judgment or order from the other court, andc. In the event that the discipline imposed in the other jurisdiction has been stayed there, any reciprocal disciplinary proceedings instituted or discipline imposed in this Court shall be deferred until such stay expires.
d. After consideration of the response called for by the order issued pursuant to subsection B, supra, or after expiration of the time specified in that order, the Court may impose the identical discipline or may impose any other sanction the Court may deem appropriate.
e. A final adjudication in another court that an attorney has been guilty of misconduct shall establish conclusively the misconduct for purpose of a disciplinary proceeding in this Court, unless the attorney demonstrates and the Court is satisfied that upon the face of the record upon which the discipline in another jurisdiction is predicated it clearly appears that:f. This Court may at any stage ask the Grievance Committee to conduct disciplinary proceedings or to make recommendations to the Court for appropriate action in light of the imposition of professional discipline by another court.
83.2.6 DISBARMENT ON CONSENT OR RESIGNATION IN OTHER COURTS
a. Any attorney admitted to practice before this Court shall, upon being disbarred on consent or resigning from any other bar while an investigation into allegations of misconduct is pending, promptly inform the Clerk of this Court of such disbarment on consent or resignation.
b. An attorney admitted to practice before this Court who shall be disbarred on consent or resign from the bar of any other court of the United States or the District of Columbia, or from the bar of any state, territory, commonwealth, or possession of the United States while an investigation into allegations of misconduct is pending shall, upon the filing with this Court of a certified copy of the judgment or order accepting such disbarment on consent or resignation, cease to be permitted to practice before this Court and be stricken from the role of attorneys admitted to practice before this Court.
83.2.7 DISBARMENT
ON CONSENT WHILE UNDER DISCIPLINARY INVESTIGATION
OR
PROSECUTION
a. Any attorney admitted to practice before this Court who is the subject of an investigation into, or a pending proceeding involving, allegations of misconduct may consent to disbarment, but only by delivering to this Court an affidavit stating that the attorney desires to consent to disbarment and that:
1. The attorney's consent is freely and voluntarily rendered; the attorney is not being subjected to coercion or duress; the attorney is fully aware of the implications of so consenting;
2. the attorney is aware that there is a presently pending investigation or proceeding involving allegations that there exist grounds for the attorney's discipline the nature of which the attorney shall specifically set forth;
3. the attorney acknowledges that the material facts so alleged are true; and
4. the attorney so consents because the attorney knows that if charges were predicated upon the matters under investigation, or if the proceeding were prosecuted, the attorney could not successfully defend himself.
b. Upon receipt of the required affidavit, this Court shall enter an order disbarring the attorney.
c. The order disbarring the attorney on consent shall be a matter of public record.
However, the affidavit required pursuant to the provisions of this rule
shall not be publicly
disclosed or made available for use in any other proceeding except upon order
of this Court.
83.2.8 INCOMPETENCE
AND INCAPACITY
a. When
it appears that an attorney for whatever reason is failing to perform to an
adequate level of competence necessary to protect his
or her clients' interests, the Court may take any remedial action which
it deems appropriate, including but not limited to referral of the affected
attorney to appropriate institutions and
professional personnel for assistance in raising the affected attorney's
level of competency. The Court may also, in its discretion, refer the matter
to the Grievance Committee for further
investigation and recommendation.
b. A referral to the Grievance Committee of any matter concerning an attorney's failure to maintain an adequate level of competency in his or her practice before this Court is not a disciplinary matter and does not implicate the formal procedures previously described in these Rules. Upon a referral of this sort, the Grievance Committee may request that the attorney meet with it informally and explain the circumstances which gave rise to the referral and may conduct such preliminary inquiries as it deems advisable. If after meeting with the attorney and conducting its preliminary inquiries the Committee determines that further attention is not needed, the Committee shall notify the referring Judge and consider all inquiries terminated.
c. If after meeting with the attorney and conducting its preliminary inquiries the Committee deems the matter warrants further action, it may recommend to the attorney that the attorney take steps to improve the quality of his or her professional performance and shall specify the nature of the recommended action designed to effect such improvement. The attorney shall be advised of any such recommendation in writing and be given the opportunity to respond thereto, to seek review or revocation of the recommendation, or to suggest alternatives thereto. The Committee may, after receiving such response, modify, amend, revoke, or adhere to its original recommendation. If the attorney agrees to comply with the Committee's final recommendation, the Committee shall report to the referring Judge that the matter has been resolved by the consent of the affected attorney. The Committee may monitor the affected attorney's compliance with its recommendation and may request the assistance of the Court in ensuring that the attorney is complying with the final recommendation.
d. If the Committee finds that there is a substantial likelihood that the affected attorney's continued practice of law may result in serious harm to the attorney's clients pending completion of the remedial program, it may recommend that the Court consider limiting or otherwise imposing appropriate restrictions on the attorney's continuing practice before the Court. The Court may take any action which it deems appropriate to effectuate the Committee's recommendation.
e. Any attorney who takes exception with the Committee's final recommendation shall have the right to have the Court, consisting of the active Judges thereof, consider the recommendation and the response of the affected attorney. The Court may, after considering the attorney's response, by majority vote of the active Judges thereof, adopt, modify, or reject the Committee's recommendations as to the necessary remedial actions and may take whatever actions it deems appropriate to ensure the attorney's compliance.
f. All information, reports, records, and recommendations gathered, possessed, or generated by or on behalf of the Committee in relation to the referral of a matter concerning an attorney's failure to maintain an adequate level of competency in his or her practice before this Court shall be confidential unless and until otherwise ordered by the Court.
g. Nothing contained herein and no action taken hereunder shall be construed to interfere with or substitute for any procedure relating to the discipline of any attorney as elsewhere provided in these rules. Any disciplinary actions relating to the inadequacy of an attorney's performance shall occur apart from the proceedings of the Committee in accordance with law and as directed by the Court.
83.2.9 REINSTATEMENT
a. After Disbarment or Suspension
An attorney suspended for three months or less shall be automatically reinstated at the end of the period of suspension upon the filing with this Court of an affidavit of compliance with the provisions of the order. An attorney suspended for more than three months or disbarred may not resume the practice of law before this Court until reinstated by order of the Court.
b. Time of Application Following Disbarment
An attorney who has been disbarred after hearing or consent may not apply for reinstatement until the expiration of at least five years from the effective date of disbarment.
c. Hearing on Application
Petitions for reinstatement by a disbarred or suspended attorney under this Rule shall be filed with the Chief Judge of this Court. The Chief Judge may submit the petition to the Court or may, in his or her discretion, refer the petition to the Grievance Committee which shall within thirty days of the referral schedule a hearing at which the petitioner shall have the burden of establishing by clear and convincing evidence that he or she has the moral qualifications, competency, and learning the law required for admission to practice before this Court and that his or her resumption of the practice of law will not be detrimental to the integrity and standing of the bar or the administration of justice, or subversive of the public interest. Upon completion of the hearing, the Committee shall make a full report to the Court. The Committee shall include in its findings of fact as to the petitioner's fitness to resume the practice of law and its recommendations as to whether or not the petitioner should be reinstated.
d. Conditions of Reinstatement
If after consideration of the Committee's report and recommendation the Court finds that the petitioner is unfit to resume the practice of law, the petition shall be dismissed. If after consideration of the Committee's report and recommendation the Court find that the petitioner is fit to resume the practice of law, the Court shall reinstate him, provided that the judgment may make reinstatement conditional upon the payment of all or part of the costs of the proceedings, an don the making of partial or complete restitution to all parties harmed by the petitioner whose conduct led to the suspension or disbarment. Provided further, that if the petitioner has been suspended or disbarred for five years or more, reinstatement may be conditioned, in the discretion of the Court, upon the furnishing of proof of competency and learning in the law, which proof may include certification by the bar examiners of a state or other jurisdiction of the attorney's successful completion of an examination for admission to practice subsequent to the date of suspension or disbarment. Provided further that any reinstatement may be subject to any conditions which the Court in its discretion deems appropriate.
e. Successive Petitioners
No petition for reinstatement under this Rule shall be filed within one year following an adverse judgment upon a petition for reinstatement filed by or on behalf of the same person.
f. Deposit for Costs of Proceeding
Petitions for reinstatement under this Rule shall be accompanied by a deposit
in an amount to be set from time to time by the Court in consultation with
the Grievance Committee to
cover anticipated costs of the reinstatement proceeding.
83.2.10 ATTORNEYS
SPECIALLY ADMITTED. Whenever an attorney applies to be admitted or is admitted to this Court for
purposes of a particular proceeding (pro hac vice), the attorney shall be deemed
thereby to have conferred
disciplinary jurisdiction upon this Court for any alleged misconduct
arising in the course of or in the preparation for such a proceeding which is
a violation of this Court's Local Rules and/or the
Rules of Professional Conduct adopted by this Court as provided in these Rules.
83.2.11 APPOINTMENT OF COUNSEL. Whenever, at the direction of the Court or upon request of the Grievance Committee, counsel is to be appointed pursuant to these rules to investigate or assist in the investigation of misconduct, to prosecute or assist in the prosecution of disciplinary proceedings, or to assist in the disposition of a reinstatement petition filed by a disciplined attorney, this Court, by a majority vote of the active Judges thereof, may appoint as counsel any active member of the bar of this Court, or may, in its discretion, appoint the disciplinary agency of the highest court of the state wherein the Court sits, or other disciplinary agency having jurisdiction.
83.2.12 SERVICE OF PAPERS AND OTHER NOTICES. Service of an order to show cause instituting a formal disciplinary proceeding shall be made by personal service or by registered or certified mail addressed to the affected attorney at the address shown on the role of attorneys admitted to practice before this Court. Service of any other papers or notices required by these rules shall be deemed to have been made if such paper or notice is addressed to the attorney at the address shown on the role of attorneys admitted to practice before this Court; or to counsel or the respondent's attorney at the address indicated in the most recent pleading or document filed by them in the course of any proceeding.
83.2.13 DUTIES OF THE CLERK
a. Upon being informed that an attorney admitted to practice before this Court has been convicted of any crime, the Clerk of this Court shall determine whether the court in which such conviction occurred has forwarded a certificate of such conviction to this Court. If a certificate has not been so forwarded, the Clerk of this Court shall promptly obtain a certificate and file it with this Court.
b. Upon being informed that an attorney admitted to practice before this Court has been subjected to discipline by another court, the Clerk of this Court shall determine whether a certified or exemplified copy of the disciplinary judgment or order has been filed with this Court, and, if not, the Clerk shall promptly obtain a certified or exemplified copy of the disciplinary judgment or order and file it with this Court.
c. Whenever it appears that any person who has been convicted of any crime or disbarred or suspended or censured or disbarred on consent by this Court is admitted to practice law in any other jurisdiction or before any other court, this Court shall, within ten days of that conviction, disbarment, suspension, censure, or disbarment on consent, transmit to the disciplinary authority in such other jurisdiction, or for such other court, a certificate of the conviction or a certified or exemplified copy of the judgment or order of disbarment, suspension, censure, or disbarment on consent, as well as the last known office and residence address of the disciplined attorney.
d. The Clerk of this Court shall, likewise, promptly notify the National Discipline Bank operated by the American Bar Association of any order imposing public discipline on any attorney admitted to practice before this Court.
LOCAL RULE 83.3
COMPLAINTS OF JUDICIAL MISCONDUCT AND DISABILITY
83.3.1 INTRODUCTION. Section 372(c) of Title 28 of the United States Code provides a way for any person to complain about a federal judge or magistrate judge who the person believes "has engaged in conduct prejudicial to the effective and expeditious administration of the business of the courts" or "is unable to discharge all the duties of office by reason of mental or physical disability."
83.3.2 HOW TO FILE A COMPLAINT. Any person desiring to file a complaint against a judge of this court should follow the procedure provided in the "Rules of the Judicial Council of the Eleventh Circuit Governing Complaints of Judicial Misconduct and Disability" found at Addendum Three to the Rules of the United States Court of Appeals for the Eleventh Circuit. The requirements for filing and a sample complaint form are contained in the Addendum. The address for the Clerk of the Eleventh Circuit Court of Appeals is:
United States Court of Appeals
for the Eleventh Circuit
56 Forsyth Street, N.W.
Atlanta, GA 30303
LOCAL RULE 87
CORPORATE DISCLOSURE STATEMENT
87.1 WHO MUST FILE. Any nongovernmental corporate party to an action in this court shall file a separate statement identifying all of its parent and subsidiary corporations and listing any publicly held company that owns 10% or more of the party’s stock.
87.2 TIME FOR FILING. A party shall file the statement with its initial pleading filed in
this court and shall supplement the statement within a reasonable time of any change in the
information.
LOCAL CRIMINAL RULES
INTRODUCTION - Matters of a civil, general or administrative nature are addressed in Local Rule 3, et. seq. The following Local Criminal Rules are supplemental in nature and are to be construed consistently with the generally applicable Local Rules, supra.
LOCAL CRIMINAL RULE 23
CRIMINAL JURY TRIALS
23.1 JURIES. All criminal cases shall be tried to a jury of twelve members
unless waived in accordance with Rule 23 of the Federal Rules of Criminal Procedure
23.2 JUROR QUESTIONNAIRES.
Questionnaires completed by prospective jurors and information obtained
from the questionnaires are for the exclusive use of the court and parties
to
cases scheduled for trial and shall only be used for purposes of jury selection.
Attorneys for parties may check out completed questionnaires from the
Clerk’s Office. Immediately after trial,
attorneys shall destroy all copies of completed questionnaires and any
other documents containing information obtained from the completed questionnaires.
LOCAL CRIMINAL RULE 32
PROBATION
32.1 PROCEDURES REGARDING PREPARATION AND SUBMISSION OF PRESENTENCE INVESTIGATION REPORTS. The following procedures shall apply in all divisions of the court effective on November 1, 1987, for offenses committed after October 31, 1987:
a. Ordinarily, sentencing will occur within 70 calendar days following the defendant's plea of guilty or nolo contendere, or upon being found guilty.
b. Not less than 35 days prior to the date set for sentencing, the probation officer shall provide a copy of the presentence investigation report to the defendant and to counsel for the defendant and the government. Within 14 days thereafter, counsel (or the defendant if acting pro se) shall communicate in writing to the probation officer and to each other any objections they may have as to any material information, sentencing classifications, sentencing guideline ranges, and policy statements contained in or omitted from the report.
c. After receiving counsel's objections, the probation officer shall conduct any further investigation and make any revisions to the presentence report that may be necessary and meet with the defendant, the defendant's counsel and the attorney for the government to discuss any objections.
d. No later than 7 days prior to the date of the sentencing hearing, the probation office shall submit the presentence report to the sentencing judge. The report shall be accompanied by an addendum setting forth any objections counsel may have made that have not been resolved, together with the officer's comments thereon. The probation officer shall certify that the contents of the report, including any revisions thereof, have been disclosed to the defendant and to counsel for the defendant and the government, that the content of the addendum has been communicated to the defendant and to counsel, and that the addendum fairly states any remaining objections.
e. Except for any objections made under subdivision (b) that has not been resolved, the report of the presentence investigation may be accepted by the court as accurate. The court, however, for good cause shown, may allow a new objection to be raised at any time before the imposition of sentence. In resolving disputed issues of fact the court may consider any reliable information presented by the probation officer, the defendant or the government.
f. Nothing in this rule requires the disclosure of any portions of the presentence report that are not disclosable under Rule 32 of the Federal Rules of Criminal Procedure. The probation officer's sentence recommendation shall not be disclosed unless so ordered by the sentencing judge.
g. The presentence report shall be deemed to have been disclosed (1) when a copy of the report is physically delivered; or (2) one day after the report's availability for inspection is orally communicated; or (3) three days after a copy of the report or notice of its availability is mailed.
32.2 DISCLOSURE OF PRESENTENCE REPORTS OR PROBATION RECORDS.
a. No person shall otherwise disclose, copy, reproduce, deface, delete from or add to any report within the purview of this rule.
b. No confidential records of the court maintained at the probation office, including presentence reports and probation supervision reports, shall be sought by any applicant except by written petition to the court establishing with particularity the need for specific information believed to be contained in such records. When a demand for disclosure of such information or such records is made by way of subpoena or other judicial process served upon a probation officer of this court, the probation officer may file a petition seeking instruction from the court with respect to the manner in which he should respond to such subpoena or such process.
c. Any
party filing an appeal or cross appeal in any criminal case in which
it is expected that any issue will be asserted pursuant to 18 U.S.C. § 3742 concerning the sentence
imposed by the court shall immediately notify the probation officer
who shall then file with the clerk for inclusion in the record in camera
a copy of
the presentence investigation report.
LOCAL CRIMINAL RULE 47
MOTIONS
47.1 FILING. Unless the assigned judge prescribes otherwise, every motion filed in a criminal proceeding shall be accompanied by a memorandum of law citing supporting authorities.
47.2 RESPONSE. Respondent's counsel desiring to submit a response, brief, or affidavits shall serve the same within twenty (20) days after service of movant's motion and brief.
47.3 REPLY. Movant's counsel shall serve any desired reply brief, argument, or affidavit within ten (10) days after service of respondent's response, brief, or affidavit.
47.4 PAGE LIMITATION. Except upon good cause shown and leave given by the court, all briefs in support of a motion or in response to a motion are limited in length to twenty (20) pages; the movant's reply brief may not exceed ten (10) pages.
ATTORNEYS: PROCEDURES FOR ADMISSION AND WITHDRAWAL
A. ADMISSIONS. Refer to Local rule 83.1.1.
B. DUTIES. Refer to Local Rule 83.1.2.
C. ENTRY OF APPEARANCE. Refer to Local Rule 83.1.3.
D. WITHDRAWAL OF ATTORNEYS IN CRIMINAL CASES
(1) In every criminal case retained defense attorneys shall make fee and other necessary financial arrangements satisfactory to themselves and sufficient to provide for representation of the client until the conclusion of the client’s case. For purposes of this rule, a client’s case is not concluded until his direct appeal, if any, is finally decided.
(2) Defense attorneys in criminal cases may not, except in extraordinary circumstances, withdraw from the representation of a client because of the client’s failure to pay a fee or otherwise comply with the financial agreement with the attorney, after ten business days from arraignment.
(3) If a defendant moves the court to proceed on appeal in forma pauperis and/or for the appointment of Criminal Justice Act appellate counsel, or if defense counsel moves for permission to withdraw citing extraordinary circumstances, the retained attorney will be required to disclose in camera the total amount of fees and costs received from every source; by whom the fees and costs were paid; and the costs actually incurred and services actually rendered.
Pursuant to the provisions of the Criminal Justice Act of 1964 (18 U.S.C. §3006A)1, the judges of the United States District Court for the Middle District of Georgia have adopted the following plan for furnishing legal representation for any person financially unable to obtain adequate representation for himself. In accordance with §3006A(a)(1), representation shall be provided for any financially eligible person who –
(A) is charged with a felony or a Class A misdemeanor;
(B) is a juvenile alleged to have committed an act of juvenile delinquency as defined in section 5031 of this title;
(C) is charged with a violation of probation;
(D) is under arrest, when such representation is required by law;
(E) is charged with a violation of supervised release or faces modification, reduction, or enlargement of a condition, or extension of revocation of a term of supervised release;
(F) is subject to a mental condition hearing under Chapter 313 of this title;
(G) is in custody as a material witness;
(H) is entitled to appointment of counsel under the sixth amendment to the Constitution;
(I) faces loss of liberty in a case, and Federal law requires the appointment of counsel; or
(J) is entitled to the appointment of counsel under section 4109 of this title.
In addition, as provided by §3006A(a)(2), whenever a judicial officer of this court determines that the interests of justice so require, representation may be provided for any financially eligible person who –
(A) is charged with a Class B or C misdemeanor, or an infraction for which a sentence to confinement is authorized; or
(B) is seeking relief under section 2241, 2254, or 2255 of title 28.
For purposes of this plan, representation shall include, in addition to legal counsel, such investigative and expert assistance and such other services necessary to provide an adequate defense. Judicial officers and judges of this court refers to United States judges and United States magistrate judges.
I. PROVISION FOR FURNISHING LEGAL COUNSEL
This district plan provides for the continued appointment and compensation of private counsel which historically have been utilized by this court.
II. PANEL OF ATTORNEYS
The panel of attorneys from which appointment of counsel under the Criminal Justice Act shall consist of all members of the bar of the United States District Court for the Middle District of Georgia. That is, all members of the bar of this court shall be subject to appointment under the Criminal Justice Act. The judges of this court shall endeavor at all times to appoint only qualified and competent legal counsel to represent financially eligible persons, giving preference to those attorneys who have expressed a willingness to represent indigent parties in this court. The clerk of court shall maintain a record of appointments made by the judges of this court.
III. DETERMINATION OF NEED FOR COUNSEL
A. Duty to Inquire into Request for Counsel –
It shall be the responsibility of the judicial officer before whom one requesting appointment of counsel first appears, or to whom a request for legal representation is made, to inquire into the need for legal representation and whether the one requesting representation is qualified for appointment of counsel under the Criminal Justice Act. The judicial officer shall advise the party appearing before him of his right to be represented throughout the proceeding by legal counsel of his own choosing but that an attorney will be provided to him under the Criminal Justice Act if he so desires and if he otherwise qualifies for appointment of counsel.
B. Requests - How Made –
Requests for appointment of counsel may be made orally or in writing. The party requesting appointment of counsel shall execute a financial affidavit (Form CJA 23) under penalty of perjury setting forth his income and expenditures and his debts and assets. In lieu thereof, or supplemental thereto, the court may examine the party under oath in open court and may cause further inquiry to be made at any time as to the party’s ability to employ private counsel. The court may take judicial notice of a party’s incarceration as indicative of his indigency.
C. Challenges to Party’s Claim of Financial Standing –
It shall be the responsibility of the judges of this court to resolve any challenges to the claimed financial inability of a party to obtain his own representation.
IV. APPOINTMENT OF COUNSEL
A. Legal Representation Requested –
If legal representation is requested and the party requesting the appointment of counsel is found to be qualified for said appointment under the Criminal Justice Act, the court shall immediately take steps to provide counsel to the party. Separate counsel shall be appointed by the court for defendants having interests which cannot properly be represented by the same counsel or when other good cause for separate representation has been shown.
B. Legal Representation Not Requested –
If legal representation is not requested, or if the court determines that appointment of counsel is not permitted under the Criminal Justice Act, the party appearing before the court shall execute a written WAIVER OF ATTORNEY before further proceedings are held. If a party not entitled to appointment of counsel refuses to waive legal representation, the judicial officer presiding shall note the same on the record.
C. Retroactive Appointments –
Retroactive appointments of counsel are authorized by the Criminal Justice Act to include any representation furnished pursuant to this plan prior to appointment by the court. Accordingly, when a person arrested has been represented by counsel before his presentation before a judicial officer of this court under circumstances where such representation is required by law, his counsel may subsequently apply to the court for approval of compensation. Upon a finding that such representation was required by law and that the person otherwise then met the requirements of the Criminal Justice Act, the court may order retroactive compensation and/or order retroactive appointment of counsel where counsel will continue to represent the person for whom services were previously rendered. If the person represented is unavailable at the time counsel applies for compensation for services rendered during the arrest period, the attorney may nevertheless submit his claim to the court for approval based on a showing of the arrestee’s financial condition at the time the services were rendered and a showing that such representation was required by law.
D. Selection of Counsel –
Appointment of counsel under the Criminal Justice Act is the province of the judicial officers of this court. The party requesting appointment of counsel shall not have the right to select his appointed counsel. However, the court may consider prior representation of the party, whether retained or appointed, in making an appointment under this plan; that is, the court may consider the circumstances of each requested appointment, including knowledge of the facts of the case obtained while representing the party in proceedings in other courts.
E. Change of Financial Status –
If, at any stage of proceedings before this court, a party who has previously retained legal counsel advises the court that he no longer has the financial ability to provide for his continued representation and requests the appointment of counsel under the Criminal Justice Act, a judicial officer may appoint counsel for such party after inquiry into the circumstances thereof. The court will not ordinarily appoint retained counsel to continue in his representation of the party but will consider the facts of each case separately as well as the need for judicial economy. However, if counsel formerly retained is appointed under such circumstances, said counsel may claim compensation only for such services rendered after appointment.
F. Payment or Promise of Payment Prohibited –
No appointed counsel may request or accept any payment or promise of payment for assisting in the representation of a party unless such payment is approved by order of court or except under circumstances where counsel formerly retained is appointed as provided above.
V. CONTINUATION OF APPOINTMENT
A. Duration of Appointment –
Counsel appointed by a judicial officer of this court shall, unless excused by order of court, continue to act for the party for whom appointed throughout all proceedings in this court and in the Court of Appeals for the Eleventh Circuit. In the event of the conviction of a party following trial or of an adverse ruling against a party, counsel appointed under this plan shall promptly advise the party of his right of appeal and of his right to continued representation on appeal by legal counsel. If requested to do so by the party, counsel shall file a timely notice of appeal.
B. Substitution of Counsel –
In the interest of justice, a judicial officer of this court may substitute one appointed counsel for another at any stage of any proceeding in this court for cause shown.
C. Termination of Appointment –
If, at any time after his appointment, counsel should have reason to believe that his client is or has become financially able to obtain counsel or to make partial payment of an attorney’s fee, he shall promptly advise the court. The court will then make inquiry and will determine whether the order of appointment ought to be vacated or modified. If a judicial officer independently determines at any time after appointment that a party is or has become financially able to employ his own attorney, he may vacate the appointment previously made.
VI. INVESTIGATIVE, EXPERT AND OTHER SERVICES
A. Services Provided Upon Request –
Counsel (whether or not appointed under the Criminal Justice Act) for any person who is financially unable to obtain investigative, expert or other services necessary for adequate representation may request the court to provide such services in an ex parte application directed to a judicial officer, as provided in 18 U.S.C. §3006A(e)(1). Upon a finding by the judicial officer, after appropriate inquiry, that such services are necessary and that the person for whom they are sought is financially unable to obtain them, the court shall authorize counsel to obtain such services.
B. Services Provided Without Prior Request –
Pursuant to 18 U.S.C. §3006A(e)(2), counsel appointed under the Criminal Justice Act may obtain, subject to late review, investigative, expert or other services without prior authorization if necessary for the adequate representation of his client. The total cost of services obtained without prior authorization may not exceed $300.00 and expenses reasonably incurred. However, the court may, in the interest of justice and upon finding that timely procurement of necessary services could not await prior authorization, approve payment for such services after they have been obtained, even if the cost of such services exceeds $300.00. Such expenditures without prior court authorization are not favored, and any application for court approval of such prior expenditures must clearly show why prior authorization could not have been obtained, in addition to demonstrating the necessity of such expenditures for adequate representation and financial inability on the part of the party for whom the services were obtained.
C. Submission of Requests –
Requests for investigative, expert, or other services shall be submitted to the court by counsel (or by a pro se party) upon such forms designated and provided by the clerk of court, and the signing of said forms by counsel and by claimants shall affirm and certify as to the truth of the representations made therein. Said requests shall include the hourly or daily rate of the investigator, expert, etc. and an estimate of the total expenditure for services rendered. The judicial officer considering such requests may impose a limit on the amount which may be expended or promised for such services within the maximum prescribed by 18 U.S.C. §3006A(e)(3).
D. Notification of Withdrawal of Authorization to Render Services –
It shall be the responsibility of counsel appointed under the Criminal Justice Act or of any person proceeding pro se for whom services have been authorized and/or provided to promptly advise those rendering services of the limits of compensation and of the vacation or withdrawal of any authorization for the rendering of such services.
VII. HOW TO SUBPOENA WITNESSES
Counsel appointed under the Criminal Justice Act shall not cause the issuance of subpoenas for witnesses without prior approval of a judicial officer of this court in accordance with the following procedures:
A. Counsel shall submit to the judicial officer a written, ex parte request identifying the name and location of each witness to be subpoenaed and providing a summary of the testimony expected to be provided by each witness;
B. Upon approval by the judicial officer, counsel shall prepare a criminal subpoena form for each witness approved and shall promptly deliver said form to the clerk of court; and,
C. The clerk of court shall promptly deliver such subpoena to the U.S. Marshal for service.
At the conclusion of the trial or hearing for which the witness is subpoenaed, the witness shall complete a voucher itemizing travel and subsistence expenses incurred in connection with the trial or hearing. Upon approval of the voucher, the U.S. Marshal shall remit the amount of reimbursement to the witness as directed by the court.
VIII. COMPENSATION
Payment of fees and expenses to counsel appointed under the Criminal Justice Act and pursuant to this plan, as well as payment for investigative, expert, and other services necessary for adequate representation of any party, shall be made in accordance with provisions of the Criminal Justice Act, as it may from time to time be amended; in accordance with applicable rules, regulations, and guidelines of the Judicial Conference of the United States; and, in accordance with the fiscal policies of the Administrative Office of the United States Courts. Claims for compensation and reimbursement of expenses shall be submitted to the judicial officer presiding over the termination of said case on the prescribed forms provided by the clerk’s office.
IX. REIMBURSEMENT BY PARTY FOR FEES AND EXPENSES
PAID UNDER THE CRIMINAL JUSTICE ACT
If it appears at the conclusion of any proceeding in this court wherein legal counsel and/or other services were provided by the court under provisions of the Criminal Justice Act that the party provided with representation and services has the ability to pay for all or a portion thereof, the court may require reimbursement by that party of all or any part of the fees and expenses so paid.
X. DUTY OF THE CLERK OF COURT
It shall be the duty of the clerk of court to implement the provisions of this plan by processing all requests for appointment of counsel and requests for services other than counsel. The clerk shall issue orders and vouchers as directed by the judges of this court. In addition, the clerk shall be responsible for processing all requests for payment submitted by counsel, parties, investigators, experts, and other providers of services.
XI. DUTY OF THE U.S. PROBATION OFFICE
It shall be the duty of the U.S. Probation Office, as part of its pretrial services responsibilities, to make inquiry of each person taken into custody or otherwise directed to appear in this court as a defendant, probationer, releasee, juvenile, witness, or otherwise, as to the need for legal representation. In the course of interviewing such persons, that office shall cause a CJA Form 23 (or such other form as may hereafter supersede it) to be filled out by any person requesting appointment of counsel and shall cause said completed form to be presented to a judicial officer of this court for consideration.
XII. USE OF FORMS
Standard forms approved by the Judicial Conference of the United States or an appropriate committee thereof and provided by the Administrative Office of the United States Courts, or such other forms prepared in conformity thereto, shall be used by the court, the clerk of court, the U.S. Probation Office, counsel, and all parties in carrying out the provisions of this plan and the Criminal Justice Act.
XIII. EFFECTIVE DATE OF PLAN
This plan was executed on the 6th day of May, 1997, by Chief United States District Judge Duross Fitzpatrick and has been approved by the Judicial Council of the Eleventh Circuit.
