Chapter 2.128
PUBLIC DEFENSE SERVICES
Sections:
2.128.010 Policy, authority and purpose.
2.128.040 Duties and responsibilities of public defense contractors.
2.128.050 Caseload limits and types of cases.
2.128.070 Administrative costs.
2.128.100 Reports of attorney activity and vouchers.
2.128.120 Monitoring and evaluation of attorneys.
2.128.130 Substitution of attorneys or assignment of contract.
2.128.140 Limitation on private practice of contract attorneys.
2.128.150 Qualification of attorneys.
2.128.160 Disposition of client complaints.
2.128.170 Cause for termination or removal of attorney.
2.128.190 Guideline for awarding defense contracts.
2.128.010 Policy, authority and purpose.
A. Pursuant to the provisions of RCW 10.101.030, San Juan County hereby adopts standards for the delivery of public defense services to indigent persons and persons who are indigent and able to contribute. Public defense services are herein provided by contract or assigned counsel. The standards endorsed by the Washington State Bar Association for the provision of public defense services serve as guidelines for interpreting the below standards.
B. The council delegates to the administrator the authority to implement and oversee the contracts and management for public defense services. The administrator shall submit to the council an annual report at the end of each fiscal year summarizing the annual budget for the public defense services; the annual case load; and an assessment of the quality of the program. (Ord. 40-2009 § 1)
2.128.020 Definitions.
For the purpose of this chapter the following terms, phrases, words, and their derivations shall have the meanings given in this section:
“Administrator” means the County administrator or the person to whom the administrator has delegated the authority to administer the County’s public defense contracts.
“Case” means one order appointing the public defense contractors to one client in a single action, resulting in one “file” opened and assigned to a specific attorney. A single appointment and, thus, a case may contain more than one count, and more than one court file number. Actions involving violations of judgments and sentences, probation and parole, extraditions and detainers, initial probable cause determinations, and all other such matters not involving representation from initial charging through adjudication are counted as follows: three actions equaling one case in the respective court in which the action is heard.
“Council” means the San Juan County council.
“Indigent defendant” means an indigent person as defined under RCW 10.101.010. As referred to in this chapter, the term includes a “client” of public defense contractors.
“Public defense contractors” mean attorneys who have entered into a contract with the council or subcontract with the council’s approval to represent indigent defendants.
“Public defense services” means legal representation for indigent defendants at no charge to the indigent defendant in criminal, juvenile, involuntary commitment, and dependency cases, and any other case where the right to counsel attaches, consistent with the statutory and constitutional requirements of state and federal law. (Ord. 40-2009 § 2)
2.128.030 Compensation.
Public defense contractors should be compensated commensurate with the complexity of the case assigned and time required for the case. There should be provisions for extra compensation in cases that require an unusual measure of time or expertise. (Ord. 40-2009 § 3)
2.128.040 Duties and responsibilities of public defense contractors.
A public defense contractor’s primary and most fundamental responsibility is to promote and protect the best interests of the client.
Representation shall be provided to all indigent defendants in a professional, skilled manner consistent with minimum standards set forth by the American Bar Association, applicable Washington State Bar Association Standards, and the Rules of Professional Conduct for attorneys, case law, and applicable court rules defining the duties of counsel and the rights of defendants in criminal cases. (Ord. 40-2009 § 4)
2.128.050 Caseload limits and types of cases.
Caseload limits and types of cases for public defense contractors should allow each attorney to give each client the time and effort necessary to ensure effective representation. No attorney or firm rendering indigent defense services shall accept workloads that, by reason of their excessive size, interfere with the rendering of reasonable and quality representation.
A public defense contractor shall not allow his or her private law practice to interfere with the representation of indigent defendants.
A. Subject only to the consideration of subsection (B) of this section, in a one-year period the appointed attorney should not be expected to handle more than:
1. One hundred fifty felony cases; or
2. Three hundred misdemeanor cases, provided in the following circumstances, the caseload may be adjusted up to no more than 400 cases depending upon:
a. The caseload distribution between simple misdemeanors and complex misdemeanors, or
b. Jurisdictional policies such as post-filing diversion and opportunity to negotiate resolution of large number of cases as noncriminal violations, or
c. Other court administrative procedures that permit a defense lawyer to handle more cases; or
3. Two hundred fifty juvenile offender cases; or
4. Dependency Cases. The number of dependency cases per attorney per year, or the number of open dependency cases at a given time per attorney, shall be determined by a contract between the attorneys and the administrator, with oversight by the Washington State Office of Public Defense.
B. Certain factors not accounted for by RCW 10.101.030 or Standard Three: Caseload Limits and Types of Cases found in the Washington Public Defense Association Standards for Public Defense Services received from the Washington Defense Association as Adopted/Amended by the Committee on Public Defense (September 2007) also bear upon the number of cases a public defense contractor can effectively handle, including but not limited to the severity and complexity of the cases, the prosecutor’s resources and practices, the location of the jail and courts relative to the attorney’s office, the availability of diversionary disposition programs, the docketing practices of the local courts, the definition of a “case,” and the availability of support staff and limited practice personnel.
If the total number of cases handled by the attorney under the public defense contract exceeds 110 percent of the caseloads specified in this section in a given calendar year, or is less than 90 percent of the caseloads specified in this section in a given calendar year, the administrator and the public defense contractor will confer to address an increase or decrease in case load. (Ord. 40-2009 § 5)
2.128.060 Expert expenses.
Public defense contractors shall have reasonable resources for expert witnesses or services in matters where such services are both material and necessary to the defense of the case. A public defense contractor’s request for expert witness or services fees under Court Rule 3.1(f) should be made through an ex parte motion. The defense should be free to choose the expert of its choosing and in no case should be forced to select experts from a list preapproved by either the court or the prosecution; provided, that the court determines that such services are both material and necessary to the defense of the case. (Ord. 40-2009 § 6)
2.128.070 Administrative costs.
Attorneys shall be responsible for paying all administrative and overhead expenses of their office or firm not otherwise provided for in these standards or in a contract. Such costs may include law libraries, financial accounting, professional liability insurance, case management systems and other costs incurred in the day-to-day management of the contract. Attorneys shall maintain an office in San Juan County for meetings with clients, when necessary. (Ord. 40-2009 § 7)
2.128.080 Investigators.
The Washington Public Defense Association Standards for Public Defense Services published by the Washington Defense Association as Adopted/Amended by the Committee on Public Defense (September 2007) includes a standard addressing the number of investigators (Standard Six: Investigators). It provides that a minimum of one investigator should be employed for every four attorneys. This standard may be given due consideration in providing investigators for public defense contractors. (Ord. 40-2009 § 8)
2.128.090 Support services.
Public defense contractors should ensure that they are adequately staffed with support staff, including access to mental health professionals and interpreters, depending on the types of cases being assigned. (Ord. 40-2009 § 9)
2.128.100 Reports of attorney activity and vouchers.
Public defense contractors shall maintain a case-reporting and management information system that tracks the number and type of cases and the disposition of each case under an existing contract, and the number and nature of other cases outside of the county by private representation or contract. This information shall be provided on a quarterly basis to the administrator, or on a more frequent basis, if requested by the administrator; provided, that such information does not compromise client confidentiality. (Ord. 40-2009 § 10)
2.128.110 Training.
Public defense contractors shall attend legal training as required by the Washington State Bar Association, and shall document at least seven hours of required training annually in the areas of criminal defense. (Ord. 40-2009 § 11)
2.128.120 Monitoring and evaluation of attorneys.
The administrator may conduct an annual written evaluation of each public defense contractor, which evaluation may include, but is not limited to, review of time and caseload records, in-court observations, review of files, and comments of judges, prosecutors, other defense attorneys, and clients. Attorneys should be evaluated based on their skill and effectiveness in client representation, including the client’s communication and satisfaction with the public defense contractor’s representation.
Public defense contractors who are the named person or entity in a contract with the County shall also conduct annual written evaluations of the performance of junior or subordinate attorneys, working with or under the public defense contractor, who provide public defense services to the County. Such supervisory public defense contractors shall consult on a periodic basis, not to exceed one year, with the administrator concerning the performance of junior or subordinate attorneys. (Ord. 40-2009 § 12)
2.128.130 Substitution of attorneys or assignment of contract.
Public defense contractors should not subcontract with another attorney or firm to provide representation without the prior written consent of the administrator. (Ord. 40-2009 § 13)
2.128.140 Limitation on private practice of contract attorneys.
Public defense contractors shall be limited in the amount of privately retained work which they may accept. In a one-year period, a public defense contractor shall not be assigned more than a pro rata share of public defense cases in relation to that attorney’s additional private practice cases. For example, an attorney with a public defense contract of 75 felonies per year shall not have more than a half-time private practice case load. (Ord. 40-2009 § 14)
2.128.150 Qualification of attorneys.
A. Public defense contractors shall meet the following minimum qualifications:
1. Satisfy the minimum requirements for practicing law in the state of Washington;
2. Be familiar with the statutes, court rules, constitutional provisions, and case law relevant to their practice area;
3. Be familiar with the collateral consequence of a conviction, including possible immigration consequences and the possibility of civil commitment proceedings based on a criminal conviction;
4. Be familiar with mental health issues and be able to identify the need to obtain expert services; and
5. Complete at least 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.
1. 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 (A) of this section;
b. At least five years’ criminal trial experience;
c. Have prior experience as lead counsel in no fewer than nine jury trials of serious and complex cases which were tried to completion;
d. Have served as lead or co-counsel in at least one jury trial in which the death penalty was sought;
e. Have experience in preparation of mitigation packages in aggravated homicide or persistent offender cases;
f. Have completed at least one death penalty defense seminar within the previous two years; and
g. Meet the requirements of Superior Court Special Proceeding Rules – Criminal Rule 2 (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.
2. Adult Felony Cases – Class A. Each 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 (A) of this section; and
b. Either:
i. Has served two years as a prosecutor; or
ii. Has served two years as a public defender; or two years in 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 B felony cases that have been submitted to a jury.
3. 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 shall meet the following requirements:
a. Minimum requirements set forth in subsection (A) of this section; and
b. Either:
i. Has served one year as prosecutor; or
ii. 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.
4. Adult Felony Cases – All Other Class B Felonies, Class C Felonies, Probation or Parole Revocation. Each staff attorney representing a defendant accused of a Class B felony not defined in subsection (B)(3) of this section or a Class C felony, as defined in RCW 9A.20.020, or involved in a probation or parole revocation hearing shall meet the following requirements:
a. Minimum requirements set forth in subsection (A) of this section; and
b. Either:
i. Has served one year as a prosecutor; or
ii. 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 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 shall be accompanied at his or her first felony trial by a supervisor, if available.
5. 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 (A) of this section; and
b. Have at least:
i. Four years’ criminal trial experience; and
ii. One year’s experience as a felony defense attorney; and
iii. Experience as lead counsel in at least one Class A felony trial; and
iv. 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.
6. 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 (A) of this section; and
b. Either has served one year as a prosecutor, one year as a public defender, or 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 shall be accompanied at his or her first juvenile trial by a supervisor, if available.
7. Juvenile Cases – Classes B and C. Each attorney representing a juvenile accused of a Class B or C felony shall meet the following requirements:
a. Minimum requirements set forth in subsection (A) of this section; and
b. Either has served one year as a prosecutor, one year as a public defender, or one year in a private criminal practice; and
c. Has been trial counsel alone in five misdemeanor cases brought to a final resolution; and
d. Each attorney shall be accompanied at his or her first juvenile trial by a supervisor, if available.
8. Juvenile Status Offenses Cases. Each attorney representing a client in a “Becca” matter shall meet the following requirements:
a. Minimum requirements as outlined in subsection (A) of this section; and
b. Either:
i. Have 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
ii. Has participated in at least one consultation per case with a more experienced attorney who is qualified under this section.
9. Misdemeanor Cases. Each attorney representing a defendant involved in a matter concerning a gross misdemeanor or condition of confinement shall meet with requirements as outlined in subsection (A) of this section.
10. Dependency Cases. Each attorney representing a client in a dependency matter shall meet the following requirements:
a. Minimum requirements as outlined in subsection (A) of this section; and
b. Attorneys handling termination hearings shall 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 either with a state office or public defense resource attorney or other attorney qualified under this section.
11. Civil Commitment Cases. Each attorney representing a respondent shall meet the following requirements:
a. Minimum requirements set forth in subsection (A) of this section; and
b. Shall not represent a respondent in a 90- or 180-day commitment hearing unless he or she has either:
i. Served one year as a prosecutor, or
ii. Served one year as a public defender, or one year in a private civil commitment practice, and
iii. Been trial counsel in two civil commitment initial hearings, and
iv. Shall 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.
12. 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. Minimum requirements set forth in subsection (A) of this section; and
b. Have at least:
i. Three years’ criminal trial experience; and
ii. One year’s experience as a felony defense attorney or one year’s experience as a criminal appeals attorney; and
iii. Experience as lead counsel in at least one felony trial; and
iv. Experience as counsel in cases involving each of the following:
(A) Mental health issues; and
(B) Sexual offenses; and
(C) Expert witnesses; and
v. Familiarity with the Civil Rules; and
vi. 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 (A) of this section and have either one year’s experience as a public defender or significant experience in the preparation of criminal cases, including legal research and writing and training in trial advocacy.
13. Contempt of Court Cases. Each attorney representing a respondent shall meet the following requirements:
a. Minimum requirements set forth in subsection (A) of this section; and
b. Each attorney shall participate in at least one consultation with a state office or public defense resource attorney or other attorney qualified in this area of practice.
C. RALJ Misdemeanor Appeals to Superior Court. Each attorney who is counsel alone for a case on appeal to the superior court from court of limited jurisdiction should meet the minimum requirements as outlined in subsection (A) of this section, and have had 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. (Ord. 40-2009 § 15)
2.128.160 Disposition of client complaints.
The attorneys who are principal to the public defense contract shall promptly respond to clients who make complaints and should keep a written record of the complaints and the response.
Complaints should be first directed to the attorney handling the case, then to the principal attorney, if not the same attorney. If the complaint cannot be resolved by the respective office, the complaint should be directed to other avenues including the courts or the bar association.
Agreements with public defense contractors who accept conflict cases should include a procedure to respond to client complaints. (Ord. 40-2009 § 16)
2.128.170 Cause for termination or removal of attorney.
Contracts with public defense contractors should only be terminated for cause prior to their expiration, which could include failure of the attorney to render adequate representation to the client, willful disregard of the rights and best interest of the client, violation of the Rules of Professional Conduct, willful disregard of the standards set forth herein, or any such other conduct detrimental to the administration of justice.
Representation in an individual case establishes an inviolable attorney-client relationship. Removing an attorney from a case should ordinarily not occur over the objection of the client. (Ord. 40-2009 § 17)
2.128.180 Nondiscrimination.
Neither the council, the public defense contractors in their hiring practices to provide public defense representation, nor the attorneys selected in their representation of the clients shall discriminate on the grounds of race, color, religion, national origin, age, marital status, sex, sexual orientation or disability.
The council and public defense contractors shall comply with all federal, state and local nondiscrimination requirements. (Ord. 40-2009 § 18)
2.128.190 Guideline for awarding defense contracts.
The administrator should award contracts for public defense services only after it determines that the attorney or firm chosen can meet accepted professional standards and comply with all standards as set forth herein.
The administrator may require, as a condition of awarding any contract, that attorneys selected to provide public defense services maintain office facilities within San Juan County if such shall be necessary for effective representation of clients.
County prosecutors and law enforcement officers shall not select the attorneys who will provide indigent defense services, nor shall they participate in negotiations of contracts for such services, except in the capacity as county civil counsel. (Ord. 40-2009 § 19)