HomeMy WebLinkAboutR-2363 - Adopting New Standards for the delivery of Public Defender Services puruant to RCW 10.101.030RESOLUTION N0.2. ~ 3
A RESOLUTION OF THE CITY OF MARYSVILLE, WASHINGTON
ADOPTING NEW ST AND ARDS FOR THE DELIVERY OF PUBLIC
DEFENDER SERVICES PURSUANT TO RCW 10.101.030
WHEREAS, RCW 10 .101.030 requires the City of Marysville ("City") to adopt standards
for the delivery of public defense services, specifies the topics to be addressed in such standards ,
and urges local legislative bodies to use the standards endorsed by the Washington State Bar
Association for indigent defense as guidelines; and
WHEREAS, the Washington State Bar Association Board of Governors approved
standards for indigent defense services on June 11 , 2011; and
WHEREAS , the Washington State Supreme Court issued New Standards for Indigent
Defense by Order dated June 15 , 2012, which were effective upon adoption except Standard 3.4 ,
mandated caseload limits; and
WHEREAS , the Memorandum Decision dated December 4, 2013, in Wilbur v. City of
Mount Vernon , United States District Court for the Western District of Washington Case No .
Cl 1-1 lOlRSL, provides additional guidance on the delivery of public defense services ,
including municipal responsibilities for funding , administering and monitoring a constitutionally
adequate public defense program under the Sixth Amendment to the U.S. Constitution and
Gideon v. Wainwright , 372 U.S. 335 (1963); and
WHEREAS , the City Council of Marysville deems it to be in the public interest to proceed
with the adoption and implementation of the standards for the delivery of public defense services
as provided herein;
NOW, THEREFORE
THE CITY COUNCIL OF THE CITY OF MARYSVILLE, WASHINGTON, H EREBY
RESOLVES AS FOLLOWS:
Section 1. The following public defense standards are hereby adopted :
STATEMENT OF INTENT AND INTERPRETATION: These standards are adopted in
order to comply with the requirements of RCW 10.101.030, the rules established by the
Washington State Supreme Court, and the requirements of the Sixth Amendment to the U .S .
Constitution. The provisions of these standards shall be construed to effectuate their stated
purpose , which is to provide standards that 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 meeting all legal requirements for the provision of public defense services. 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 decisions of Washington State and federal courts.
1. DUTIES AND RESPONSIBILITIES OF COUNSEL.
1.1 Public defense services ("the 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 and decisions 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.
1.2 Services shall be provided to indigent clients whose eligibility has
been determined by the City of Marysville through an established screening process.
1.3 All Public Defenders providing services by contract shall certify
their compliance with the standards for indigent defense by filing a Certification of Compliance
quarterly, as required by CrR 3.1, CrRLJ 3.1 , and JuCR 9.2. Such forms shall be filed with the
Marysville Municipal Court. Copies of each Public Defender's certification shall be provided to
the City.
2. QUALIFICATIONS OF ATTORNEYS.
2.1 Every Public Defender performing services under contract with
theCity (herein "Public Defense" or "Public Defender") or appointed by the Marysville
Municipal Court in a particular case 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 .
2.2 In a firm providing public defense services , one attorney shall be
designated at the lead attorney. The designated Public Defender or the designated lead attorney
in a firm providing public defense services by contract shall have a minimum of five years of
experience in a practice emphasizing criminal defense.
2 .3 Attorneys and Rule 9 interns performing services under contract
shall :
2.2.1 be familiar with the statutes, court rules, constitutional
provisions, and case law relevant to the practice area ;
2.2.2 be familiar with the Washington Rules of Professional
Conduct (WRPC);
2.2.3 be familiar with the Performance Guidelines for Criminal
Defense Representation approved by the Washington State Bar Association;
2.2.4 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
2.2.5 be familiar with mental health issues and be able to identify
the need to obtain expert services; and
2.3 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. 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.
3. TRAINING, SUPERVISION, AND EVALUATION OF
ATTORNEYS.
3.1 The designated lead attorney in a firm providing public defender
services shall be responsible for training , supervising , and evaluating all attorneys in the firm providing
public defender services.
3.2 No attorney in a firm providing public defender services shall be
assigned sole or primary responsibility for a case unless the lead attorney determines that attorney has the
required training, experience, knowledge and skill.
3.3 All attorneys providing public defense services shall participate in a
minimum of seven hours of continuing legal education per year in areas relating to criminal defense law
and practice .
3.4 In addition to required continuing legal education (CLE) training ,
in the event that seven (7) or more attorneys perform services to the City by the same contract
and in the same entity, the contract for services shall provide for in-house training. Proposals
made in response to requests for proposals for pursuit of a contract for Public Defense Services
shall provide information regarding in-house training, the development of manuals to inform
new attorneys of the rules and procedures of the Marysville Municipal Court and encourage the
opportunity to attend courses that foster trial advocacy skills. The Public Defender is encouraged
to obtain and review professional publications and other media relating to criminal defense.
4. COMPENSATION OF COUNSEL.
The City has a constitutional obligation to provide Public Defense Services that
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. 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. Contracted and assigned counsel shall be compensated for reasonable out
of pocket expenses.
4.1 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 extraordinary fees may be charged will be defined within any contract.
4 .2 Attorneys with a conflict of interest shall not be required to
compensate the new , substituted attorney under the contract.
5. ADMINISTRATIVE EXPENSES AND SUPPORT SERVICES.
5 .1 All contracts for Public Defense shall provide sufficient
amounts , in addition to reasonable co mpensation for attorneys, for adequate
administrative expenses and supports services to provide for adequate staffing and other
costs associated with the day to day management of a law office. Administrative expenses
include travel , telephones , law library including electronic legal research , financial
accounting, case management systems, computers and software, office space and
supplies, training. Support services include secretaries, word processing staff, paralegals ,
and access to translators, social work staff, mental health professionals, and immigration
law advice , as appropriate ,
5 .2 Private offices and /or conference rooms shall be available which
are convenient to defendants charged in the Marysville Municipal Court and allow the
maintenance of confidentiality. Public Defenders shall maintain a telephone system, internet
access and postal address to enable convenient communications by clients.
6. RESPONSIBILITY FOR EXPERT WITNESS FEES AND
OTHER COSTS AS SOCIA TED WITH REPRESENTATION
The expenses of expert witnesses and investigative costs in appropriate cases
s hall be borne by the City .
6.1 The 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 .
6.2 The services of expert witnesses will be paid directly by the City
when approved by the Court through ex parte motion .
6.3 Investigative services shall be employed as appropriate. The
investigator shall have appropriate training and experience in the area of criminal defen se and
investigations relating to criminal matters. Contracts for Public Defense Services may include
investigative services as a part of reimbursed overhead included in the contract compensation
for investigators employed by a firm .
7. CASELOAD LIMITS AND TYPES OF CASES.
7.1 The Public Defender shall provide Services to all eligible person
charged in the Marysville Municipal Court with violation of the City's ordinances defining
misdemeanor and gross misdemeanor crimes for which incarceration is a possible consequence
upon conviction , and RALJ appeals of convictions 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.
7 .2 The caseload of a full time public defender or assigned counsel
shall not exceed four hundred cases per year.
7 .3 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 Jaw practice, the caseload shall be based upon the percentage of time
that the lawyer devotes to public defense with the City.
7.4 The caseload of a Public Defender who al s o maintains a private
practice shall not shall not exceed the number of cases resulting from multiplying 400 cases by
the percentage of his or her time the public defender devotes to providing public defense services
under all contracts for public defense services.
7 .5 A case credit is a unit of work computed as follows:
7.5.1 The Public Defender will receive no credit for a
misdemeanor case when the court dismisses the case upon the motion of the prosecuting
attorney before any legal service has been performed. Any case in which the Public Defender's
duty is limited to explaining to the individual defendant the implication of any acti o n by the
City Attorney to reduce a criminal matter to a civil infraction , bail forfeiture or dismissal , shall
not be counted as a case assignment to the Public Defender's office. The Public Defender shall
receive no work for credit on cases which are substantively identified as conflicts, with the
exception of cases in which (after work has been performed) the client obtains a new attorney at
his own expense or through a request to the court, or for other extraordinary circumstances
approved by the City, including but not limited to, information or evidence which the Public
Defender could not have reasonably known or discovered at the time of the initial conflicts
check.
7.5.2 Each pre-trial case is counted only once, irrespective of
any subsequent reappointment pursuant to when a client fails to appear (FTA). The case will be
counted at the time of first appointment. In the event a defendant has been previously represented
by a Public Defender and that case was previously counted when the case was in pre-trial status ,
it will not be counted again unless the defendant FTA's at a post-conviction hearing. Post-
conviction cases where defendants FTA and are subsequently reappointed to the Public Defender
will be counted again; however, this will occur only once, no matter how many times a defendant
FT A's and the Public Defender is reappointed when the case is in post-conviction status , the case
will be counted only once .
7 .5. 3 A criminal matter shall be defined as one (1) 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.
7.5.4 If the Public Defender is required to attend an
appearance calendar, the Public Defender shall count such attendance at a minimum, as a case ,
regardless of whether he or she is actually appointed to represent a client. If appointed, a case
count shall be determined as provided above .
7.6 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.
7.7 The standards provided herein for caseloads may be adjusted
upward depending upon the complexity of a particular case. A Public Defender may request to
have the weighting for an unusually complex case not addressed adequately by these
standards may be increased depending upon the complexity and requirements o f 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 expe rts , and /or social workers or other
expenditure of time and resources .
8. LIMITATIONS ON PRIVATE PRACTICE.
Subject to the provisions of Standard Six on Caseload Limits, there is no
prohibition on a public defender engaging in private practice , provided , such private practice
does not interfere with performance of Public Defense Services and complies with all
requirements of the Rules of Professional Condut.
9. REPORTS OF ATTORNEY ACTIVITY AND VOUCHERS.
9.1 Public Defense Services shall maintain a case reporting system and
information management system. The Public Defender or firm providing public defense services
shall provide monthly reports to the City regarding the caseloads generated under the contract for
each attorney and intern providing services under the contract,
9.2 The monthly caseload reports to be provided by the Public
Defender shall identify the number of cases assigned , the case count year-to -date , and records of
the time expended on each case. The monthly caseload report shall also include information
relating to calculation of caseload under public defense contracts with other jurisdictions and
private
practice caseload to permit the City to monitor and evaluate compliance with these Standards.
The City may require supplementation of reports if the information provided does not allow
evalu at ion of the Public Defender's compliance with caseload limits.
9.3 Requests for payment shall be made by voucher on a form
approved by the City Administrator and supported by the monthly caseload report.
10. DISPOSITION OF CLIENT COMPLAINTS.
10.1 The Chief Administrative Officer shall identify a procedure for
complaints regarding the provision of services by the Public Defender.
10.2 Public Defender Service Providers shall first be afforded an
opportunity to resolve any complaint.
10.3 Complaints regarding the provision of services under the contract,
or regarding a volation of any of these standards sha ll be investigated by the Chief
Administrative Officer provided, however, that any complaint regarding trial strategy or any
other matter which could breach confidentiality shall be referred to the Washington State Bar
Association or the presiding judge of the Marysville Municipal 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
11. CAUSE FOR TERMINATION OR CONTRACT OR REMOVAL
OF ATTORNEY.
11.1 The City may terminate the contract for Public Defense Services
either "fo r cause," after such notice and opportunity to cure as is warranted in the circumstances,
or "for convenience," on 90 days notice of termination.
11.2 Removal by the Court of counsel from representation normally
should not occur over the objection of the attorney and the client.
12. SUBSTITUTION OF ATTORNEYS OR ASSIGNMENT OF
CONTRACTS.
12 .1 The contract for Public Defense Services shall not be assignable
without the express written consent of the City.
12.2 In the event of conflict or removal of the Public Defender,
Conflict Counsel shall be assigned, either 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.
12.3 Conflict Counsel shall adhere to the standards established by this
resolution, including but not limited to, an evaluation of the overall case count annually by
Conflict Counsel under the procedures set forth in this agreement.
13. NON-DISCRIMINATION.
Non-Discrimination. The Public Defender shall comply with all federal, state and
local non-discrimination 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.
Section 3. The City Clerk is directed to provide a certified copy of the
Standards to the Presiding Judge of the Marysvi ll e Municipal Court.
Section 4. EFFECTIVE DATE.
The provisions of this resolution shall be effective upon adoption.
RESOLVED:
CITY OF MARYSVILLE
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APPROVED AS TO FORM:
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· Grant K. Weed, City Attorney