Appointment of Counsel

Utah Code tit. 78B, ch. 78B-22, pt. 78B-22-P2

in effect

Utah Code § 78B-22-201 Right to counsel.

78B-22-201. Right to counsel. (1) A court shall advise the following of the individual's right to counsel no later than the individual's first court appearance: (a) an adult charged with a criminal offense the penalty for which includes the possibility of incarceration regardless of whether actually imposed; (b) a parent or legal guardian facing an action initiated by the state under: (i) Title 78A, Chapter 6, Part 4a, Adult Criminal Proceedings; (ii) Title 80, Chapter 3, Abuse, Neglect, and Dependency Proceedings; or (iii) Title 80, Chapter 4, Termination and Restoration of Parental Rights; (c) a parent or legal guardian facing an action initiated by any party under: (i) Section 81-13-205; or (ii) Title 80, Chapter 4, Termination and Restoration of Parental Rights; or (d) an individual described in this Subsection (1), who is appealing a conviction or other final court action. (2) If an individual described in Subsection (1) does not knowingly and voluntarily waive the right to counsel, the court shall determine whether the individual is indigent under Section 78B-22-202. Amended by Chapter 426, 2025 General Session

Utah Code § 78B-22-201.5 Affidavit of indigency.

78B-22-201.5. Affidavit of indigency. (1) Except as provided in Subsection (5), on or after January 1, 2022, an individual, who is seeking appointment of an indigent defense service provider, shall submit an affidavit of indigency described in Subsection (2) to the court. (2) An affidavit of indigency shall include the following information: (a) the individual's identifying information, including: (i) the individual's legal name and any known aliases; (ii) the individual's mobile or residential phone number; (iii) the individual's residential address; and (iv) the individual's date of birth; and (b) the individual's financial information, including: (i) any financial support or benefit that the individual receives from a state or federal government; (ii) the individual's monthly income, including any alimony or child support that contributes to the individual's monthly income; (iii) the individual's monthly expenses, including any alimony or child support obligation that the individual is responsible for paying; (iv) the individual's ownership of, or any interest in, personal or real property, including any savings or checking accounts or cash; (v) the number, ages, and relationships of any dependents; and (vi) any extraordinary financial conditions that would prevent the individual from retaining private counsel. (3) The affidavit of indigency shall: (a) require the signature of the individual; and (b) include a statement that: (i) by signing the affidavit the individual confirms that, to the best of the individual's knowledge, the information in the affidavit is true; (ii) the individual may be subject to a criminal penalty for a written false statement under Section 76-8-504; (iii) the individual authorizes an indigent defense system to contact or request information from the individual or a third party to verify whether an individual is indigent; and (iv) the individual may be ordered to pay the cost of the individual's indigent defense services if a court determines that the individual is not indigent. (4) The Judicial Council or Supreme Court shall adopt an affidavit of indigency form described in Subsection (2) to be distributed to an individual seeking the appointment of an indigent defense service provider. (5) This section does not apply to a minor, who is appointed an indigent defense service provider, or the minor's parent or legal guardian. Enacted by Chapter 4, 2021 Special Session 2

Utah Code § 78B-22-202 Determining indigency.

78B-22-202. Determining indigency. (1) A court shall find an individual indigent if the individual: (a) has an income level at or below 150% of the United States poverty level as defined by the most recent poverty income guidelines published by the United States Department of Health and Human Services; or (b) has insufficient income or other means to pay for legal counsel and the necessary expenses of representation without depriving the individual or the individual's family of food, shelter, clothing, or other necessities, considering: (i) the individual's ownership of, or any interest in, personal or real property; (ii) the amount of debt owed by the individual or that might reasonably be incurred by the individual because of illness or other needs within the individual's family; (iii) the number, ages, and relationships of any dependents; (iv) the probable expense and burden of defending the case; (v) the reasonableness of fees and expenses charged by an attorney and the scope of representation undertaken when represented by privately retained defense counsel; and (vi) any other factor the court considers relevant. (2) Notwithstanding Subsection (1), a court may not find an individual indigent if the individual transferred or otherwise disposed of assets since the commission of the offense with the intent of becoming eligible to receive indigent defense services. (3) (a) The court may: (i) make a finding of indigency at any time; and (ii) rely on information contained in an affidavit of indigency described in Section 78B-22-201.5 in making a finding about whether an individual is an indigent individual. (b) An individual's inability to submit, or to provide the information required in, an affidavit of indigency under Section 78B-22-201.5 does not preclude a court from: (i) making a finding about whether an individual is an indigent individual under this section; or (ii) appointing an indigent defense service provider under Section 78B-22-203. Amended by Chapter 4, 2021 Special Session 2

Utah Code § 78B-22-203 Order for indigent defense services.

78B-22-203. Order for indigent defense services. (1) (a) Except as provided in Subsection (6), a court shall appoint an indigent defense service provider who is employed by an indigent defense system or who has a contract with an indigent defense system to provide indigent defense services for an individual over whom the court has jurisdiction if: (i) the individual is an indigent individual; and (ii) the individual does not have private counsel. (b) An indigent defense service provider appointed by the court under Subsection (1)(a) shall provide indigent defense services for the indigent individual in all court proceedings in the matter for which the indigent defense service provider is appointed. (2) (a) Notwithstanding Subsection (1), the court may order that indigent defense services be provided by an indigent defense service provider who does not have a contract with an indigent defense system if the court finds by clear and convincing evidence that: (i) all the contracted indigent defense service providers: (A) have a conflict of interest; or (B) do not have sufficient expertise to provide indigent defense services for the indigent individual; or (ii) the indigent defense system does not have a contract with an indigent defense service provider for indigent defense services. (b) A court may not order indigent defense services under Subsection (2)(a) unless the court conducts a hearing with proper notice to the indigent defense system by sending notice of the hearing to the county clerk or municipal recorder. (3) (a) A court may order reasonable indigent defense resources for an individual who has retained private counsel only if the court finds by clear and convincing evidence that: (i) the individual is an indigent individual; (ii) the individual would be prejudiced by the substitution of a contracted indigent defense service provider and the prejudice cannot be remedied; (iii) at the time that private counsel was retained, the individual: (A) entered into a written contract with private counsel; and (B) had the ability to pay for indigent defense resources, but no longer has the ability to pay for the indigent defense resources in addition to the cost of private counsel; (iv) there has been an unforeseen change in circumstances that requires indigent defense resources beyond the individual's ability to pay; and (v) any representation under this Subsection (3)(a) is made in good faith and is not calculated to allow the individual or retained private counsel to avoid the requirements of this section. (b) A court may not order indigent defense resources under Subsection (3)(a) until the court conducts a hearing with proper notice to the indigent defense system by sending notice of the hearing to the county clerk or municipal recorder. (c) At the hearing, the court shall conduct an in camera review of: (i) the private counsel contract; (ii) the costs or anticipated costs of the indigent defense resources; and (iii) other relevant records. (4) A court may only order the representation of an indigent individual by an indigent defense service provider in accordance with this section. (5) A court may not order indigent defense resources be provided to an indigent individual, except as provided in Subsection (3). (6) (a) For an individual prosecuted for aggravated murder and found indigent, a court from a county participating in the Indigent Aggravated Murder Defense Fund created in Section 75E-10-402 shall notify the Office of Indigent Defense Services of the finding of indigency. (b) The office shall assign an indigent defense service provider qualified under Utah Rules of Criminal Procedure, Rule 8, with whom the office has a preliminary contract to provide indigent defense services for an assigned rate. Amended by Chapter 291, 2026 General Session

Utah Code § 78B-22-204 Waiver by a minor.

78B-22-204. Waiver by a minor. (1) A minor may not waive the right to be represented by counsel at all stages of court proceedings unless: (a) the minor has consulted with counsel; and (b) the court is satisfied that in light of the minor's unique circumstances and attributes: (i) the minor's waiver is knowing and voluntary; and (ii) the minor understands the consequences of the waiver. (2) A minor may not decline to enter into a nonjudicial adjustment without first being advised of their right to consult with counsel, consistent with the requirements of Section 80-6-304. Amended by Chapter 324, 2025 General Session

Source: Utah Office of Legislative Research and General Counsel (le.utah.gov)URL: https://le.utah.gov/xcode/Title78B/Chapter22/78B-22-P2.html?v=C78B-22-P2_2019051420190514Fetched: 10/26/2026