Chapter 2.74
PUBLIC DEFENDER SERVICES
Sections:
2.74.010 Duties and responsibilities.
2.74.020 Qualifications and training.
2.74.030 Administration, support services and infrastructure.
2.74.040 Evaluation and monitoring.
2.74.070 Experts, investigation, and other costs.
2.74.080 Termination and removal.
2.74.090 Substitution conflict counsel.
2.74.100 Supervision, monitoring and evaluation of attorneys.
2.74.110 Update and evaluation.
2.74.010 Duties and responsibilities.
(1) Public defense services shall be provided to all clients in a professional, skilled manner consistent with the minimum standards set forth by the American Bar Association, the Washington State Bar Association, the rules of professional conduct, case law and applicable court rules defining the duties of counsel and the rights of defendants in criminal cases. The public defender’s primary and most fundamental responsibility is to promote and protect the interests of the client.
(2) Public defense shall be provided to indigent clients whose eligibility has been determined by court appointment.
(3) All public defenders providing services by contract shall quarterly certify their compliance with the standards for indigent defense by filing a certification of compliance as required by CrR 3.1, CrRLJ 3.1, and JuCR 9.2. Such forms shall be filed with the Asotin County district court.
(4) Nondiscrimination. The public defender shall comply with all federal, state and local nondiscrimination laws or ordinances. The duty of nondiscrimination relates not only to the provision of services by the public defender to the clients, but also with respect to the hiring and employment practices of the public defender contractor. [Ord. 1541, 2015.]
2.74.020 Qualifications and training.
(1) Every public defender performing services under the contract with the city shall satisfy the minimum requirements for practicing law in the state of Washington as determined by the Washington State Supreme Court and possess a license to practice law in the state. (Interns may assist in the provision of services so long as such interns comply with APR 9, and are trained and supervised by contract public defenders.)
(2) Public defenders (and interns) performing services under contract shall:
(a) Be familiar with the statutes, court rules, constitutional provisions, and case law relevant to the practice area; and
(b) Be familiar with the Washington Rules of Professional Conduct (WRPC); and
(c) Be familiar with the Performance Guidelines for Criminal Defense Representation approved by the Washington State Bar Association; and
(d) Be familiar with the consequences of a conviction or adjudication, including possible immigration consequences and the possibility of civil commitment proceedings based upon a criminal conviction; and
(e) Be familiar with mental health issues and be able to identify the need to obtain expert services; and
(f) Complete seven hours of continuing legal education within each calendar year and courses related to public defense practice.
(3) The city attorney, city prosecutor, chief of police and law enforcement personnel shall not participate in the selection and evaluation process leading to the recommendation of a contract for public defense services. [Ord. 1541, 2015.]
2.74.030 Administration, support services and infrastructure.
(1) Contracts for services and proposals submitted in pursuit of such contracts shall provide for or include adequate administrative support, including but not limited to:
(a) Travel, telephones, law library and/or electronic research capabilities, financial accounting, case management systems, computers, word processing equipment and software, office space and supplies. Proposals for contracts shall be elevated to address the training of attorneys and staff (see CMC 2.74.020) and provide for adequate staffing and other costs associated with the day to day management of a law office.
(b) Private offices and/or conference rooms shall be available which allow the maintenance of confidentiality. A telephone system, Internet access and postal address shall be provided by public defender.
(2) Contracts for and proposals to contract shall provide for adequate staffing. An adequate staff includes provision for legal assistance, accounting services, case management services and/or programs, and access, when needed, to the services of a social worker, mental health professional and translating service. [Ord. 1541, 2015.]
2.74.040 Evaluation and monitoring.
(1) Contracts and proposals to contract with the city for public defense services shall include provision for case reporting systems and information management systems. Such systems shall have the capability to provide monthly reports to the city and to the office of court administration regarding the caseloads generated under the contract for each attorney (and intern) providing services under the contract.
(2) Complaints.
(a) The city mayor shall designate a contact point for complaints regarding the provision of services by the public defender.
(b) Public defender service providers shall first be afforded an opportunity to resolve any complaint.
(c) Complaints regarding the provision of services under the contract, or regarding a violation of any of these standards shall be investigated by the mayor or his/her designee; provided, however, that any complaint regarding trial strategy or any other matter which could breach confidentiality shall be referred to the Washington Bar Association or the presiding judge of the district court. Nothing in this section or in these standards should be interpreted to require the public defender or any indigent defendant to breach any duty of confidentiality, including, but not limited to, trial strategy. [Ord. 1541, 2015.]
2.74.050 Caseload limits.
(1) The caseload of the public defender shall consist of misdemeanors and RALJ appeals to superior court. A “case” is defined as the filing of a document with the court naming a person as a defendant or respondent, to which an attorney is appointed in order to provide representation.
(2) No public defender performing services by contract shall exceed 400 cases in any calendar period. Contracts for services shall prohibit the public defender from performing services under any other similar contract which, taken in conjunction with the services to be performed under the contract, would exceed the case count in any calendar year. The case count for a public defender who maintains a private practice shall be adjusted to reflect the relative percentage which criminal defense relates to the public defender’s total practice. For example, an attorney whose practice consists of 50 percent services provided under contract to the city (adjusted for any other public defense services performed for another entity) and 50 percent private practice, the total case count for such an attorney shall not exceed 200 cases.
(3) The caseload limit for approved interns shall be 25 percent of those established by these policies.
(4) The request for qualifications process for selection of a public defender and public defender counsel shall strive to obtain a public defender whose experience and training is sufficient to comport with the caseload assumptions and credits assigned. Attorneys assigned to RALJ appeals shall have a minimum of one year’s experience in RALJ appeals or in the event multiple attorneys perform services in the contract, a minimum of one attorney assigned to or supervising RALJ appeals shall have such experience.
(5) The standards provided herein for caseloads may be adjusted up or down depending upon the complexity of any particular case. A public defender may request to have the weighting for an unusually complex case increased depending upon the complexity and requirements of the case, and such adjustment shall not be unreasonably refused by the city. The maximum caseload for a particular attorney shall be adjusted downward when the mix of case assignments becomes weighted toward an unanticipated number of more serious offenses or case types that demand more investigation, legal research and writing, use of experts, and/or social workers or other expenditure of time and resources.
(6) If a public defender or assigned counsel is carrying a caseload consisting of cases performed under contract with the city, as well as other criminal cases from other jurisdictions, including a mixed caseload of felonies and misdemeanors, these standards shall be adjusted proportionally to determine a full caseload. If the contract or assigned counsel also maintains a private law practice, the caseload shall be based upon the percentage of time that the lawyer devotes to public defense with the city.
(7) The monthly reports to be provided by the public defender shall identify the number of cases assigned, the case count year-to-date, and cases which the public defender has been assigned a higher case count. [Ord. 1541, 2015.]
2.74.060 Compensation.
(1) The city of Clarkston is a public agency whose revenues and resources are limited by statute, the constitution, and our local economy. The city has an obligation to obtain the quality representation to indigent defendants at a reasonable price that takes into consideration the resources of the city, and the needs of its citizens. Within those inherent limitations, the public defense services afforded by contract shall ensure that public defense attorneys and staff are compensated at a rate commensurate with their training and experience. For conflict and other assigned counsel, reasonable compensation shall also be provided. In each case, compensation shall reflect the time and labor required to be spent by the attorney and the degree of professional experience demanded by the assigned caseload. Due to the limited jurisdiction of the municipal/district court, misdemeanors and RALJ misdemeanor appeals pursuant to superior court constitute the assigned caseload under contract. Contracted and assigned counsel shall be compensated for reasonable out of pocket expenses.
(2) The contract shall provide for extraordinary compensation in the event that a particular case requires an extraordinary amount of time and preparation. The conditions under which extraordinary fees may be charged will be defined within any contract.
(3) Attorneys with a conflict of interest shall not be required to compensate the new, substituted attorney under the contract. Such arrangements are prohibited by ethical considerations.
(4) Among the reasonable expenses to be covered by the contract include expert witnesses, investigative costs, and the administrative overhead costs of paraprofessionals, including, as needed, mental health professionals, social workers, and translators.
(5) The city’s contract with assigned or conflict counsel may provide for payment by voucher. Assigned or conflict counsel shall be paid by the case upon completion. Contract counsel shall be paid monthly without regard to the number of cases closed based upon the contract’s estimation of cases to be assigned during any calendar period. In the event that the case limits are exceeded, the contract shall provide for additional compensation to the contractor, including, but not limited to, the additional cases assigned as well as any impact which the additional case assignments may have upon administrative and attorney overhead of the public defender. For example, if the assignment of additional cases requires the public defender to add staff or increase training, administrative and other overhead charges, the city and public defender shall enter into negotiation to provide for reasonable compensation that assures the provision of quality representation to indigent defendants. [Ord. 1541, 2015.]
2.74.070 Experts, investigation, and other costs.
(1) Public defense contract shall provide reasonable compensation for an expert of the public defender’s choosing. No appointment shall be from a pre-approved list designated by the city attorney, the city prosecutor, or other city officials.
(2) The services of expert witnesses will be provided under contract when approved by the court through ex parte motion. The expert will be paid directly by the city.
(3) Investigative services shall be employed as appropriate. The investigator shall have appropriate training and experience in the area of criminal defense and investigation relating to criminal matters. Normally, a ratio of one investigator to four attorneys shall be provided. Contracts for public defense services shall include investigative services as a part of reimbursed overhead. [Ord. 1541, 2015.]
2.74.080 Termination and removal.
(1) Termination of the contract shall occur only for “good cause.” Good cause shall include the failure of the contract public defender to render adequate representation to clients, the willful disregard of the rights and best interests of the client, and the willful disregard of these standards. Termination may also occur for violation of the express terms of the contract, and these standards; provided, however, that the public defender shall be provided reasonable opportunity, following notice, to cure any technical contract violations that do not impair the provision of quality representation to the indigent client.
(2) Removal by the court of counsel from representation normally should not occur over the objection of the attorney and the client. [Ord. 1541, 2015.]
2.74.090 Substitution conflict counsel.
(1) The selection process for a public defender shall be by review of names and experience levels of the attorneys who will actually provide services, to ensure that they meet minimum qualifications. The contract shall prohibit sub-contracting without the express written consent of the city. The city will endeavor to contract directly with the service providers.
(2) In the event of conflict or removal of the public defender, conflict counsel shall be available, either through a joint contract with the public defender and conflict counsel, by separate contract with conflict counsel or by court appointment. In the event that alternative or conflict counsel is required to be assigned, the public defender shall bear no part of the costs associated with the appointment of alternative or sub-conflict counsel. The contract should address the procedures for continuing representation of clients upon conclusion of the agreement.
(3) Conflict counsel shall adhere to the standards established by this chapter, including, but not limited to, an evaluation of the overall case count annually by conflict counsel under the procedures set forth in this agreement.
(4) Conflict counsel may be assigned:
(a) By the district court upon the request of the public defender;
(b) In accordance with the terms of a joint contract with the public defender and conflict counsel; or
(c) Pursuant to a separate contract. [Ord. 1541, 2015.]
2.74.100 Supervision, monitoring and evaluation of attorneys.
Candidates for public defender services are encouraged, but not required, to comply with the provisions of Standards 10 and 11 as established by the Washington Bar Association, Standards for Indigent Defense Services, approved June 2, 2011. The city recognizes that smaller firms providing public defense services may provide quality service through experienced practitioners. Wherever possible, larger contracting agencies should make provision for supervision, monitoring and evaluation in accordance with Bar Association standards or provide alternative methods for the supervision, monitoring and evaluation of attorneys which achieve substantially the same goals. [Ord. 1541, 2015.]
2.74.110 Update and evaluation.
As the rules established by the Washington State Supreme Court are applied and interpreted by the courts and, when appropriate, the Bar Association and other administrative agencies, the city states its intent to review and modify these standards. [Ord. 1541, 2015.]