Chapter 2.40
PUBLIC DEFENSE SERVICES

Sections:

2.40.010    Statement of intent and interpretation.

2.40.020    Duties and responsibilities.

2.40.030    Qualifications and training.

2.40.040    Administration, support services and infrastructure.

2.40.050    Evaluation and monitoring.

2.40.060    Caseload limits.

2.40.070    Compensation.

2.40.080    Experts, investigation, and other costs.

2.40.090    Termination and removal.

2.40.100    Subcontractors, substitution conflict counsel.

2.40.110    Supervision, monitoring and evaluation of attorneys.

2.40.120    Update and evaluation.

2.40.010 Statement of intent and interpretation.

These standards are adopted in order to meet the obligations of Washington statute and the rules established by the Washington State Supreme Court. The provisions of these standards shall be broadly and liberally construed to achieve their stated purpose, which is to provide standards which afford “quality representation” in the provision of public defense to indigent criminal defendants. “Quality representation” describes the minimum level of attention, care, and skill that Washington citizens would expect of their state’s criminal justice system and as the United States Constitution requires. These standards may be amended from time to time to reflect changes in the rules established by the Washington State Supreme Court, guidance offered by the Washington State Bar Association, or interpretations of the rules and standards by the Washington State and federal courts. (Ord. 1998 § 2, 2017)

2.40.020 Duties and responsibilities.

A.    Public defense services shall be provided to all clients in a professional, skilled manner consistent with at least 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. To that end, the Washington State Bar Association’s Standards for Indigent Defense Services are adopted by reference and are supplemented by the provisions of this chapter. The public defender’s primary and most fundamental responsibility it to promote and protect the interest of the client.

B.    Public defense shall be provided to indigent clients whose eligibility has been determined by the Ferndale Municipal Court.

C.    All public defenders including conflict counsel (herein “public defender” unless specifically noted) 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, CrRU 3.1, and JuCR 9.2. Such forms shall be filed with the Ferndale Municipal Court. Copies of each public defender’s certification shall be provided to the City’s designee, the City Administrator.

D.    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. 1998 § 2(1), 2017)

2.40.030 Qualifications and training.

A.    Every public defender performing services under 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.

B.    Public defenders and Rule 9 interns (herein “intern” or “interns”) performing services under contract shall:

1.    Be familiar with the statutes, court rules, constitutional provisions, and case law relevant to the practice area; and

2.    Be familiar with the Washington Rules of Professional Conduct (WRPC); and

3.    Be familiar with the Performance Guidelines for Criminal Defense Representation approved by the Washington State Bar Association and these standards; and

4.    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

5.    Be familiar with mental health issues and be able to identify the need to obtain expert services; and

6.    Complete seven hours of continuing legal education within each calendar year and courses related to public defense practice.

C.    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. Nothing herein shall be interpreted to prohibit the City Attorney, City Prosecutor or Chief of Police from performing the normal functions of his/her office, including, by way of illustration, the drafting of contracts, ordinances and resolutions. (Ord. 1998 § 2(2), 2017)

2.40.040 Administration, support services and infrastructure.

A.    Contracts for services and proposals submitted in pursuit of such contracts shall require the public defender to provide for or include adequate administrative support, including but not limited to:

1.    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 evaluated to address the training of attorney and staff (see FMC 2.40.030(B)(6)) and provide for adequate staffing and other costs associated with the day-to-day management of a law office.

2.    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 the public defender.

3.    The public defender shall provide adequate staffing. An adequate staff includes provision for legal assistance, accounting services, case management services and/or programs. The contract shall provide access through application to the Municipal Court to the services of a social worker, mental health professional, expert witness, interpreter and translation services outside of the courtroom and any other resources approved by the Court. Investigation services are a necessary part of an adequate defense and may be provided by a staff member or by application to the Municipal Court.

4.    The request for qualifications process for selection of a public defender and conflict counsel shall strive to obtain a public defender and conflict counsel whose experience and training are sufficient to comport with the caseload assumptions and credits assigned. Attorneys assigned to RAU appeals shall have a minimum of one year’s experience in RAU appeals or, in the event multiple attorneys perform services under a contract, a minimum of one attorney assigned to or supervising RAU appeals shall have such experience.

B.    The public defender shall keep detailed contemporaneous records of the work performed in tenth-of-an-hour increments, and provide all files, documents, records and reports requested or required by the City to the full extent consistent with the maintenance of the attorney-client privilege. (Ord. 1998 § 2(3), 2017)

2.40.050 Evaluation and monitoring.

A.    Contracts and proposals to contract with the City for public defense services shall include a provision for a case reporting system and information management system. 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. Monthly reports provided by the public defender shall identify the number of cases assigned, the case count year-to-date, cases which the public defender has been assigned a higher case count, and other data points identified by the City as required to assess the quality of services provided.

B.    Complaints.

1.    A complaint procedure shall be developed by the public defender to respond promptly to client complaints. The complaint procedure shall be available to all persons represented by the public defender under the City contract.

2.    The public defender shall first be afforded an opportunity to resolve any complaint.

3.    The attorney shall maintain client complaints received in a log as well as in the client’s file and shall follow up on complaints within three court days. Copies of the complaint log shall be provided to the City on a quarterly basis or upon its request on the form developed by the City and its Contract Administrator. The Attorney shall cooperate, to the full extent consistent with preservation of the attorney-client privilege.

4.    The City Administrator shall also designate a contact point for complaints regarding the provision of services by the public defender. The City Administrator will oversee unsolved resolution of any complaints.

5.    The City states its intent to seek the services of an independent and duly qualified resource to periodically assess the performance of the public defender. Assessment shall occur during the contract term, and prior to any contract term. These services will supplement the duties of the City Administrator and be insulated from any inappropriate influence of the police and prosecutorial functions of the City. (Ord. 1998 § 2(4), 2017)

2.40.060 Caseload limits.

A.    The caseload of the public defender shall consist of misdemeanors and RAU 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. RAU appeals are counted as a separate case. When the Municipal Court reviews certification by a public defender, the City respectfully requests that the following standards be employed. If the Court, in its discretion, determines that a different standard should apply, the City requests that it be notified so that these standards may, when appropriate, be revised.

B.    The caseload for each individual public defender should not exceed 400 unweighted misdemeanor and gross misdemeanor cases per year, determined in accordance with the case count methodology established by Standard 3.3, Washington Supreme Court CrRU 3.1 (“Standard 3.3”). The public defender is referred to resources such as the Washington Office of Public Defense for guidance on how to calculate cases and make proportional adjustments for outside practice and attendance at calendars and other docket appearances. The methodology referenced below shall apply to determining contract payment for assigned cases.

1.    Contracts for service by the public defender shall assure that counsel are compensated at a rate commensurate with their training and experience. The contracts will provide for compensation for service rendered based either upon hourly rate or upon reasonable estimates of the number of cases assigned annually. In accord with WSBA Standard Five, adequate provision for compensation shall be made for administrative tasks required under the contract, for initial work done or cases dismissed by the prosecutor, and for legal services and administrative tasks performed after the termination of a contract. Contracts shall contain a provision allowing a public defender paid on the basis of anticipated caseload to request additional payment for cases of unusual complexity or length as well as adjustments in the event of significant increases or decreases in caseloads. Approval of such additional payment shall not be unreasonably withheld.

2.    A “criminal matter” shall be defined as one case for billing purposes no matter how many charges are filed against the individual, so long as all the charges arise out of the same incident. Any additional charges filed against the same defendant, arising out of a separate incident, shall be counted by the public defender as a new case.

3.    When the public defender is assigned to represent groups of clients at a first appearance or arraignment calendar without an expectation of further continuing representation for cases, the contract shall provide for payment equal to 0.22 case credit for each hour spent preparing for and appearing at such calendars. Assignments to represent groups of clients in routine review hearing calendars in which there is no potential for the imposition of sanctions shall similarly result in payment in compensation for the work performed and the reduction of the attorney’s caseloads on a proportionate basis for the time spent in preparation and appearance at such calendars. This provision shall not apply to conflict counsel when the contract does not require such routine calendar coverage.

4.    Post-conviction cases are subsequent reappointments of the public defender and post-conviction proceeding shall be credited as 0.22 of a case per hour of preparation and appearance. In the event of termination of a contract for public defense services, and to assist in the orderly transition of public defense services to a new contractor, the former public defender shall be paid by the hour at the hourly rate paid to conflict counsel for preparation and appearances in continuing representation of a client. This provision shall not apply to contracts terminated for cause and the terminated attorney’s caseload shall be reassigned to new counsel as a new case.

C.    The caseload limit for approved interns shall be 25 percent of those established by these policies.

D.    The maximum caseload for a particular attorney shall similarly 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 than routine investigation, legal research and writing, use of experts, and/or social workers or other expenditure of time and resources.

E.    If a public defender 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, the attorney’s caseload shall be adjusted proportionally to determine a full caseload. If the contract or assigned counsel also maintains a private law practice, the maximum caseload shall be adjusted proportionately based upon the percentage of time that the lawyer devotes to public defense with the City and other agencies. See subsection (B) of this section and OPD guidance. (Ord. 1998 § 2(5), 2017)

2.40.070 Compensation.

The City of Ferndale 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 at the typical rates paid in the Whatcom County legal community for similar services and comparable with the compensation provided to area prosecutors. 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 Ferndale Municipal Court, misdemeanors and RAU 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.

A.    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.

B.    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.

C.    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 disposition of the original charge(s). 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.

D.    In the event that the caseload assumptions in the contract 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. 1998 § 2(6), 2017)

2.40.080 Experts, investigation, and other costs.

A.    Public defense contract shall provide for the cost of an expert of the public defender’s choosing. No appointment shall be from a preapproved list designated by the City Attorney, the City Prosecutor, or other City officials.

B.    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.

C.    Investigative services are a necessary part of an adequate defense and shall be employed as appropriate. The investigator shall have appropriate training and experience in the area of criminal defense and investigations relating to criminal matters. Normally, a ratio of one investigator to four attorneys shall be provided. Contracts for public defense services may include routine investigative services as a part of reimbursed overhead in the contract compensation or provide for investigative expenses to be paid upon application to and approval by the Ferndale Municipal Court.

D.    The public defender may also apply to the Municipal Court for the following case expenses. The City shall pay expenses approved by the Court directly to the provider. Such expenses include, but are not limited to:

1.    Medical and psychiatric evaluations;

2.    Interpreters and translators (out-of-court usage);

3.    Polygraph, forensic and other scientific tests;

4.    Computerized or other legal research that is not typically maintained as a part of defense counsel legal libraries or research capabilities; and

5.    Any other expenses the Ferndale Municipal Court finds necessary and proper for the investigation, preparation and presentation of a case.

E.    The City will reimburse normal and ordinary expenses such as process service, copying, transcript preparation, the acquisition of records not provided by the prosecution, and expenses relating to witnesses. (Ord. 1998 § 2(7), 2017)

2.40.090 Termination and removal.

A.    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/or the willful disregard of these standards. Termination may also occur for violation of the express terms of the contract; 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.

B.    Removal by the court of counsel from representation normally should not occur over the objection of the attorney and the client. (Ord. 1998 § 2(8), 2017)

2.40.100 Subcontractors, substitution conflict counsel.

A.    The primary public defense contract shall prohibit subcontracting without the express written consent of the City. The City will endeavor to contract directly in the event of conflict with conflict counsel.

B.    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 an alternative or conflict counsel. The contract should address the procedures for continuing representation of clients upon conclusion of the agreement.

C.    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 guidance provided by the Washington Supreme Court and the resources referenced in this chapter. (Ord. 1998 § 2(9), 2017)

2.40.110 Supervision, monitoring and evaluation of attorneys.

Firms providing public defender services with four or fewer attorneys 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 3, 2011. The City recognizes that smaller firms providing public defense services may provide quality service through experienced practitioners. Larger contracting agencies should make provision for supervision, monitoring and evaluation in accordance with Bar Association Standards 10 and 11. Internal supervision and evaluation by the public defender is in addition to review of public defense service by the City. (Ord. 1998 § 2(10), 2017)

2.40.120 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. 1998 § 2(11), 2017)