Chapter 2.124
STANDARDS FOR INDIGENT DEFENSE
Sections:
2.124.020 Indigent Defense Legal Representation Plan.
2.124.010 Authority.
The standards contained in this chapter are adopted pursuant to RCW Chapter 10.101, Indigent Defense Services, for the purpose of providing fair, effective, reasonable, and professional indigent defenses services as required by law. These standards are based in substantial part on the indigent standards approved by the Washington State Bar Association and Washington State Defender Association.
(Ord. 10-2007 § 1, 2007).
2.124.020 Indigent Defense Legal Representation Plan.
The standards adopted by the ordinance codified in this chapter together with the provisions of Yakima County Board of County Commissioners Resolution #415-1989 establishing the Yakima County Department of Assigned Counsel and providing for its authority and responsibility shall constitute Yakima County’s legal representation plan for the provision of indigent defense services.
(Ord. 10-2007 § 2, 2007).
2.124.030 Definitions.
Yakima County has created and maintains a centrally administered system for indigent defense through its Yakima County Department of Assigned Counsel and provides indigent defense services through a “mixed” system of three components: (1) a public defender office operating within the Department; (2) contracts with attorneys within the private bar to provide independent legal services for indigents; and (3) panels (lists) of attorneys in the private bar appointed to provide legal services in individual cases. For the purpose of this chapter, the following terms, phrases, words, and their derivations shall have the meaning given in this section:
(1) “Board” means the Board of Commissioners of Yakima County.
(2) “Yakima County Department of Assigned Counsel” or “Department” means the county department created under Board of Yakima County Commissioners Resolution #415-1989 to deliver indigent defense services and which is organized pursuant to Chapter 36.26 RCW and whose director serves the county public defender.
(3) “Director” or “Administrator” is the duly appointed and serving director of the Yakima County Department of Assigned Counsel, who serves as the administrator of Yakima County’s program of indigent defense and as the county public defender.
(4) “Public Defense Staff Attorneys” means staff attorneys employed in the Department’s public defender’s office.
(5) “Public Defense Contract Attorneys” or “Public Defense Contractors” means attorneys who are not employees of Yakima County but who have contracted to provide indigent defense services on a regular basis and who can either be full- or part-time.
(6) “Public Defense Attorneys” includes both “public defense staff attorneys” and “public defense contract attorneys.”
(7) “Assigned Counsel” means attorneys who are appointed to individual cases on a case-by-case basis by court order that includes terms of compensation for that particular case. Attorneys are appointed by the court under authority of RCW Chapter 36.26.
(Ord. 10-2007 § 3, 2007).
2.124.040 Application.
The standards adopted by this chapter are for the guidance of Yakima County and its officers in fulfilling the county’s obligation to provide mandated indigent defense services. No civil or criminal penalties are intended. These standards shall be administered on the part of the County by the Director of the Yakima County Department of Assigned Counsel, or his designees, and shall not give rise to rights or powers of administration or enforcement by other parties or agencies. These standards are not intended to, do not and may not be relied upon to create a right or benefit, substantive or procedural, enforceable at law by a party in litigation with the county or its officers.
It is recognized at the time of adoption of these standards that actual caseloads in Yakima County exceed the adopted caseload standards by approximately 20 percent in each category notwithstanding approximately $270,000 in annual State funding for this purpose during the 2007-2009 biennium. Further improvement to meet these standards is subject to available funds and the expectation that additional funds will be provided by the State of Washington as part of its responsibility to fund the trial court system of the State, which includes the provision of indigent defense in county courts. In the event that State funding is withdrawn or reduced, these standards may be reviewed and amended.
(Ord. 10-2007 § 4, 2007).
2.124.050 Standards.
The following standards are adopted for delivery of indigent defense by Yakima County:
(1) Standard One: Compensation.
(a) Public defense attorneys and staff should be compensated at a rate commensurate with their training and experience. To attract and retain qualified personnel, compensation and benefit levels should be comparable to those of attorneys and staff in the prosecuting attorney’s office.
(b) Contracts for public defense services shall specify the types of cases for which representation shall be provided and the maximum number of cases which each attorney shall be expected to handle. Contracts should provide for extraordinary compensation over and above the normal contract terms for cases which require an extraordinary amount of time and preparation. Services which require extraordinary fees should be defined in the contract.
(c) For assigned counsel, reasonable compensation should be provided. Compensation should reflect the time and labor required to be spent by the attorney and the degree of professional experience demanded by the case. Assigned counsel should be compensated for out-of-pocket expenses.
(d) Attorneys who have a conflict of interest shall not have to compensate the new, substituted attorney out of their own funds.
(e) Flat fees, caps on compensation, and lump-sum contracts for trial attorneys are recognized as presumptively improper in death penalty cases. Private practice attorneys appointed in death penalty cases should be fully compensated for actual time and service performed at a reasonable hourly rate with no distinction between rates for services performed in court and out of court. Periodic billing and payment should be available. The hourly rate established for lead counsel in a particular case should be based on the circumstances of the case and the attorney being appointed, including the following factors: the anticipated time and labor required in the case, the complexity of the case, the skill and experience required to provide adequate legal representation, the attorney’s overhead expenses, and the exclusion of other work by the attorney during the case. The rate of compensation for private lawyers appointed as lead defense counsel in death penalty cases should not be less than $100 per hour (in 2006 dollars).
(2) Standard Two: Duties and Responsibilities of Counsel. Defense services will be provided to all clients in a professional, skilled manner consistent with these standards, applicable state bar association standards, the Rules of Professional Conduct, case law and applicable court rules defining the duties of counsel and the rights of defendants in criminal cases. Counsel’s primary and most fundamental responsibility is to promote and protect the interests of the client.
(3) Standard Three: Caseload Limits and Types of Cases.
(a) The caseload of public defense attorneys should allow each lawyer to give each client the time and effort necessary to ensure effective representation. Neither defender organizations, county offices, contract attorneys nor assigned counsel should accept workloads that, by reason of their excessive size, interfere with the rendering of quality representation.
(b) Except as provided, the caseload of a full-time public defense attorney or assigned counsel shall not exceed the following:
(i) 150 Felonies per attorney per year; or
(ii) 400 Misdemeanor cases per attorney per year; or
(iii) 250 Juvenile Offender cases per attorney per year; or
(iv) 80 Open Juvenile Dependency cases per attorney; or
(v) 250 Civil Commitment cases per attorney per year; or
(vi) 1 Active Death Penalty case at a time; or
(vii) 36 Appeals to an appellate court hearing a case on the record and briefs per attorney per year.
(c) A case is defined as the filing of a document with the court naming a person as defendant or respondent, to which a public defense attorney is appointed in order to provide representation. The Department may establish a system of case weighting for purposes of administering caseloads to take into account case complexity, multiple cause numbers for the same client, and sentence and probation violations.
(d) The caseload limits adopted for Yakima County reflect cases of average complexity and effort in each case type specified. Factors affecting the time and effort of counsel may justify somewhat lower or higher actual caseloads for attorneys. Such factors include, but are not limited to, concentrations of cases of a lower or higher complexity, timing of assignments, specialty courts, access to clients in custody, docket congestion, mandatory minimum sentences, local prosecution charging and plea bargaining practices, local judicial policies and procedures, and the incidence of trials. The Department may administer caseloads generally and individually within such factors within a reasonable variance; provided, that the ability to provide effective representation is not impaired.
(e) If a defender or assigned counsel is carrying a mixed caseload including cases from more than one category of cases, these standards should be applied proportionally to determine a full caseload. In situations where assigned counselor contract attorneys also maintain private law practices, the contracting agency should ensure that attorneys not accept more cases than they can reasonably discharge. In these situations, the caseload should be based on the percentage of time the lawyer devotes to public defense.
(4) Standard Four: Responsibility for Expert Witnesses. Reasonable compensation for expert witnesses necessary to preparation and presentation of the defense case shall be provided through the courts. Expert witness fees should be maintained and allocated from funds separate from those provided for defender services. Requests for expert witness fees should be made through an ex parte motion. The defense should be free to request or retain the expert of its choosing and in no case should be forced to select experts from a list pre-approved by either the court or the prosecution.
(5) Standard Five: Administrative Costs. Administrative costs for public defense services will be provided for all public defense attorneys. Contracts for public defense services shall provide for or include administrative costs associated with providing legal representation. These costs should include but are not limited to travel, telephones, law library, including electronic legal research, financial accounting, case management systems, computers and software, office space and supplies, training, meeting the reporting requirements imposed by these standards, and other costs necessarily incurred in the day-to-day management of the Department or contract. Public defense attorneys should have an office that accommodates confidential meetings with clients and receipt of mail, and adequate telephone services to ensure prompt response to client contact.
(6) Standard Six: Investigators. Public defender offices, assigned counsel, and private law firms holding public defense contracts should employ or retain investigators with investigation training and experience. The optimum number of investigators is one investigator for every four attorneys.
(7) Standard Seven: Support Services.
(a) An adequate number of investigators, secretaries, word processing staff, paralegals, interpreters, social work staff, mental health professionals and other support services, including computer system staff and network administrators, will be provided for all public defense attorneys. Contracts for defense services should include or provide for such support services. These professionals are essential to ensure the effective performance of defense counsel.
(i) Legal Assistants. The optimum number of legal assistants is one full-time legal assistant for every four attorneys. Fewer legal assistants may be necessary, however, if the agency or attorney has access to word processing staff, or other additional staff performing clerical work. Defenders should have a combination of technology and personnel that will meet their needs.
(ii) Social Work Staff. Social work staff should be available to assist in developing release, treatment, and dispositional alternatives.
(iii) Mental Health Professionals. Each agency should have access to mental health professionals to perform mental health evaluations.
(iv) Investigation staff should be available as provided in this chapter.
(v) Each attorney providing public defense services should have access to adequate and competent interpreters to facilitate communication with non-English speaking and hearing-impaired clients for attorneys, investigators, social workers, and administrative staff.
(b) Mental health professionals and social workers shall be provided through the courts as experts, unless otherwise authorized and funded through the Department.
(c) The Department may, within available funds, administer a limited program for out of court interpreters, deposition and transcription services, and panel or contract investigators. In the event the Director declines a request for authorization of such services, a request may be made to the applicable court as provided by law.
(8) Standard Eight: Reports of Attorney Activity. The Department will maintain a case-reporting and management information system which includes number and type of cases, opening and closing dates, and case disposition. This information shall be provided regularly to the Board and shall also be made available to the Office of the Administrator of the Courts. Any such system shall be maintained independently from client files and no privileged information will be disclosed.
(9) Standard Nine: Training.
(a) Attorneys providing public defense services should participate in regular training programs on criminal defense law, including a minimum of seven hours of continuing legal education annually in areas relating to their public defense practice.
(b) In offices of more than seven attorneys, an orientation and training program for new attorneys and legal interns should be held to inform them of office procedure and policy. All attorneys should be required to attend regular in-house training programs on developments in criminal law, criminal procedure and the forensic sciences.
(c) Attorneys in civil commitment and dependency practices should attend training programs in these areas. Offices should also develop manuals to inform new attorneys of the rules and procedures of the courts within their jurisdiction.
(d) Every attorney providing counsel to indigent accused should have the opportunity to attend courses that foster trial advocacy skills and to review professional publications and other media.
(10) Standard Ten: Supervision. Each agency or firm providing public defense services should provide one full-time supervisor for every ten staff lawyers or one half-time supervisor for every five lawyers. Supervisors should be chosen from among those lawyers in the office qualified under these guidelines to try Class A felonies. Supervisors, except when supervising fewer than ten lawyers, should not carry caseloads.
(11) Standard Eleven: Monitoring and Evaluation of Attorneys.
(a) A procedure for systematic monitoring and evaluation of attorney performance based upon publicized criteria should be established. Monitoring and evaluation efforts should include review of time and caseload records, review and inspection of transcripts where possible, in-court observations, and periodic conferences.
(b) Performance evaluations should be supplemented by comments from judges, prosecutors, other defense lawyers and clients. Attorneys should be evaluated on their skill and effectiveness as lawyers, their organizational ability, and their interpersonal skills.
(12) Standard Twelve: Substitution of Counsel. Attorneys engaged to provide public defense services shall not sub-contract with another firm or attorney to provide representation and should remain directly involved in the provision of representation. If a contract is with a firm or office, the contracting authority should request the names and experience levels of those attorneys who will actually be providing the services, to ensure they meet minimum qualifications. The contract shall address the procedures for continuing representation of clients upon the conclusion of the agreement. Alternate or conflict counsel shall be available for substitution in conflict situations at no cost to the counsel declaring the conflict.
(13) Standard Thirteen: Limitations on Private Practice of Contract Attorneys. Contracts for public defense representation with private attorneys or firms shall set limits on the amount of privately retained work which can be accepted by the contracting attorney. These limits shall be based on the percentage of a full-time caseload which the public defense cases represent.
(14) Standard Fourteen: Qualifications of Attorneys.
(a) Minimum Qualifications. In order to assure that indigent accused receive the effective assistance of counsel to which they are constitutionally entitled, attorneys providing defense services should meet the following minimum professional qualifications:
(i) Satisfy the minimum requirements for practicing law in Washington as determined by the Washington Supreme Court; and
(ii) Be familiar with the statutes, court rules, constitutional provisions, and case law relevant to their practice area; and
(iii) Be familiar with the collateral consequences of a conviction, including possible immigration consequences and the possibility of civil commitment proceedings based on a criminal conviction; and
(iv) Be familiar with mental health issues and be able to identify the need to obtain expert services; and
(v) Complete seven hours of continuing legal education within each calendar year in courses relating to their public defense practice.
(b) Trial Attorneys’ Qualifications According to Severity or Type of Case.
(i) Death Penalty Representation. Each attorney acting as lead counsel in a death penalty case or an aggravated homicide case in which the decision to seek the death penalty has not yet been made shall meet the following requirements:
(A) The minimum requirements set forth in subsection (14)(a) of this section; and
(B) Have at least five (5) years criminal trial experience; and
(C) Have prior experience as lead counsel in no fewer than nine jury trials of serious and complex cases which were tried to completion; and
(D) Have served as lead or co-counsel in at least one jury trial in which the death penalty was sought; and
(E) Have experience in preparation of mitigation packages in aggravated homicide or persistent offender cases; and
(F) Have completed at least one death penalty defense seminar within the previous two years; and
(G) Meet the requirements of SPRC 2.
The defense team in a death penalty case should include, at a minimum, the two attorneys appointed pursuant to SPRC 2, a mitigation specialist and an investigator. Psychiatrists, psychologists and other experts and support personnel should be added as needed.
(ii) Adult Felony Cases – Class A. Each staff attorney representing a defendant accused of a Class A felony as defined in RCW 9A.20.020 shall meet the following requirements:
(A) Minimum requirements set forth in subsection (14)(a) of this section; and
(B) Either: has served two years as a prosecutor; or
1. Has served two years as a public defender; or two years in a private criminal practice; and
2. Has been trial counsel alone or with other trial counsel and handled a significant portion of the trial in three felony cases that have been submitted to a jury.
(iii) Adult Felony Cases – Class B – Violent Offense or Sexual Offense. Each attorney representing a defendant accused of a Class B violent offense or sexual offense as defined in RCW 9A.20.020 should meet the following requirements:
(A) Minimum requirements set forth in subsection (14)(a) of this section; and
(B) Either:
1. Has served one year as prosecutor; or
2. Has served one year as public defender; or one year in a private criminal practice; and
(C) Has been trial counsel alone or with other counsel and handled a significant portion of the trial in two Class C felony cases that have been submitted to a jury.
(iv) Adult Felony Cases – All Other Class B Felonies, Class C Felonies, Probation or Parole Revocation. Each attorney representing a defendant accused of a Class B felony not defined in subsection (14)(b)(iii) above or a Class C felony, as defined in RCW 9A.20.020, or involved in a probation or parole revocation hearing should meet the following requirements:
(A) Minimum requirements set forth in subsection (14)(a) of this section; and
(B) Either:
1. Has served one year as a prosecutor; or
2. Has served one year as a public defender; or one year in a private criminal practice; and
(C) Has been trial counsel alone or with other trial counsel and handled a significant portion of the trial in two criminal cases that have been submitted to a jury; and
(D) Each attorney should be accompanied at his or her first felony trial by a supervisor if available.
(v) Persistent Offender (Life without Possibility of Release) Representation. Each attorney acting as lead counsel in a “two strikes” or “three strikes” case in which a conviction will result in a mandatory sentence of life in prison without parole shall meet the following requirements:
(A) The minimum requirements set forth in subsection (14)(a) of this section; and
(B) Have at least:
1. Four years criminal trial experience; and
2. One year experience as a felony defense attorney; and
3. Experience as lead counsel in at least one Class A felony trial; and
4. Experience as counsel in cases involving each of the following:
a. Mental health issues; and
b. Sexual offenses, if the current offense or a prior conviction that is one of the predicate cases resulting in the possibility of life in prison without parole is a sex offense; and
c. Expert witnesses; and
d. One year of appellate experience or demonstrated legal writing ability.
(vi) Juvenile Cases – Class A. Each attorney representing a juvenile accused of a Class A felony shall meet the following requirements:
(A) Minimum requirements set forth in subsection (14)(a) of this section; and
(B) Either:
1. Has served one year as a prosecutor; or
2. Has served one year as a public defender; one year in a private criminal practice; and
(C) Has been trial counsel alone of record in five Class B and C felony trials; and
(D) Each attorney should be accompanied at his or her first juvenile trial by a supervisor, if available.
(vii) Juvenile Cases – Classes B and C. Each attorney representing a juvenile accused of a Class B or C felony should meet the following requirements:
(A) Minimum requirements set forth in subsection (14)(a) of this section; and
(B) Either:
1. Has served one year as a prosecutor; or
2. Has served one year as a public defender; or one year in a private criminal practice; and
3. Has been trial counsel alone in five misdemeanor cases brought to a final resolution; and
(C) Each attorney should be accompanied at his or her first juvenile trial by a supervisor if available.
(viii) Juvenile Status Offenses Cases. Each attorney representing a client in a “Becca” matter should meet the following requirements:
(A) The minimum requirements as outlined in subsection (14)(a) of this section; and
(B) Either:
1. Has represented clients in at least two similar cases under the supervision of a more experienced attorney or completed at least three hours of CLE training specific to “status offense” cases; or
2. Has participated in at least one consultation per case with a more experienced attorney who is qualified under this section.
(ix) Misdemeanor Cases. Each attorney representing a defendant involved in a matter concerning a gross misdemeanor or condition of confinement should meet the requirements as outlined in subsection (14)(a) of this section.
(x) Dependency Cases. Each attorney representing a client in a dependency matter should meet the following requirements:
(A) The minimum requirements as outlined in subsection (14)(a) of this section.
(B) Attorneys handling termination hearings should have six months dependency experience or have significant experience in handling complex litigation.
(C) Attorneys in dependency matters should be familiar with expert services and treatment resources for substance abuse.
(D) Attorneys representing children in dependency matters should have knowledge, training, experience, and ability in communicating effectively with children, or have participated in at least one consultation per case either with a state Office of Public Defense resource attorney or other attorney qualified under this section.
(xi) Civil Commitment Cases. Each attorney representing a respondent shall meet the following requirements:
(A) Minimum requirements set forth in subsection (14)(a) of this section; and
(B) Each staff attorney should be accompanied at his or her first 90 or 180 day commitment hearing by a supervisor; and
(C) Should not represent a respondent in a 90 or 180 day commitment hearing unless he or she has either:
1. Served one year as a prosecutor; or
2. Served one year as a public defender, or one year in a private civil commitment practice; and
3. Been trial counsel in five civil commitment initial hearings; and
(D) Should not represent a respondent in a jury trial unless he or she has conducted a felony jury trial as lead counsel; or been co-counsel with a more experienced attorney in a 90 or 180 day commitment hearing.
(xii) Sex Offender “Predator” Commitment Cases. Generally, there should be two counsel on each sex offender commitment case. The lead counsel shall meet the following requirements:
(A) The minimum requirements set forth in subsection (14)(a) of this section; and
(B) Have at least:
1. Three years criminal trial experience; and
2. One year experience as a felony defense attorney or one year experience as a criminal appeals attorney; and
3. Experience as lead counsel in at least one felony trial; and
4. Experience as counsel in cases involving each of the following:
a. Mental health issues; and
b. Sexual offenses; and
c. Expert witnesses; and
5. Familiarity with the Civil Rules; and
6. One year of appellate experience or demonstrated legal writing ability.
Other counsel working on a sex offender commitment case should meet the Minimum Requirements in subsection (14)(a) of this section and have either one year experience as a public defender or significant experience in the preparation of criminal cases, including legal research and writing and training in trial advocacy.
(xiii) Contempt of Court Cases. Each attorney representing a respondent should meet the following requirements:
(A) Minimum requirements set forth in subsection (14)(a) of this section; and
(B) Each staff attorney should be accompanied at his or her first three contempt of court hearings by a supervisor or more experienced attorney, or participate in at least one consultation per case with a state Office of Public Defense resource attorney or other attorney qualified in this area of practice.
(xiv) Specialty Courts. Each attorney representing a client in a specialty court (e.g., mental health court, drug diversion court, homelessness court) should meet the following requirements:
(A) Minimum requirements set forth in subsection (14)(a) of this section; and
(B) The requirements set forth above for representation in the type of practice involved in the specialty court (e.g., felony, misdemeanor, juvenile); and
(C) Be familiar with mental health and substance abuse issues and treatment alternatives.
(c) Appellate Representation. Each attorney who is counsel for a case on appeal to the Washington Supreme Court or to the Washington Court of Appeals shall meet the following requirements:
(i) The minimum requirements as outlined in subsection (14)(a) of this section; and
(ii) Either:
(A) Has filed a brief with the Washington Supreme Court or any Washington Court of Appeals in at least one criminal case within the past two years; or
(B) Has equivalent appellate experience, including filing appellate briefs in other jurisdictions, at least one year as an appellate court or federal court clerk, extensive trial level briefing or other comparable work;
(C) Attorneys with primary responsibility for handling a death penalty appeal shall have at least five years’ criminal experience, preferably including at least one homicide trial and at least six appeals from felony convictions.
RALJ Misdemeanor Appeals to Superior Court: Each attorney who is counsel alone for a case on appeal to the Superior Court from a Court of Limited Jurisdiction should meet the minimum requirements as outlined in subsection (14)(a) of this section, and have had significant training or experience in either criminal appeals, criminal motions practice, extensive trial level briefing, clerking for an appellate judge, or assisting a more experienced attorney in preparing and arguing an RALJ appeal.
(d) Legal Interns.
(i) Legal interns must meet the requirements set out in APR 9.
(ii) Legal interns shall receive training pursuant to APR 9 and these standards.
(15) Standard Fifteen: Disposition of Client Complaints. The Department will establish and administer a method to respond promptly to client complaints. Complaints should first be directed to the attorney, firm or agency which provided representation. If the client feels that he or she has not received an adequate response, the public defense administrator should evaluate or designate a person or agency to evaluate the legitimacy of complaints and to follow up meritorious ones. The complaining client should be informed as to the disposition of his or her complaint within one week.
(16) Standard Sixteen: Cause for Termination of Defender Services and Removal of Attorney.
(a) Contracts for indigent defense services shall include the grounds for termination of the contract by the parties. Termination of a provider’s contract should only be for good cause as determined by the Director of the Department or on prior notice as provided in the contract. Termination for good cause shall include the lack of funds, material or significant breach of contract, failure of the attorney to render adequate representation to clients, the willful disregard of the rights and interests of the client; and the willful disregard of applicable standards.
(b) Removal by the court of counsel from representation in individual cases normally should not occur over the objection of the attorney and the client.
(17) Standard Seventeen: Non-Discrimination. Neither Yakima County nor the Department, in the selection of an attorney, firm or agency to provide public defense representation, nor the attorneys selected, in their hiring practices or in their representation of clients, shall discriminate on the grounds of race, color, religion, national origin, age, marital status, gender, sexual orientation or disability. Both the county and the contractor shall comply with all federal, state, and local non-discrimination requirements.
(18) Standard Eighteen: Guidelines for Awarding Defense Contracts.
(a) Contracts for public defense services should be awarded or entered into only after determining that the attorney or firm chosen can meet accepted professional standards. Under no circumstances should a contract be awarded on the basis of cost alone. Attorneys or firms bidding for or requesting contracts must demonstrate their ability to meet these standards.
(b) Contracts should only be awarded to or entered into with (i) attorneys who have at least one year of criminal trial experience in the court and case type(s) covered by the contract or (ii) to a firm where at least one attorney has one year of trial experience.
(c) City attorneys, county prosecutors, and law enforcement officers should not select the attorneys who will provide indigent defense services.
(Ord. 10-2007 § 5, 2007).