HomeMy WebLinkAbout04 0323 09
STATE OF WASHINGTON
County of Jefferson
In the Matter of:
ES1ablishment of Standards for
the Delivery of Public Defense
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04-0323-09
ORDINANCE NO.
WHEREAS, the Jefferson County Commissioners approved Resolution No. 31-91 in the
matter of adoption of standards for Public Defense services for the Superior and Dis1rict Courts
on April 15, 1991; and
WHEREAS, RCW 10.101.060 requires adoption by ordinance of a legal represen1ation
plan that addresses the factors in RCW 10.101.030 in order 10 be eligible to receive appropriated
funds from the Office of Public Defense; and
WHEREAS, on September 20,2007, the Board of Governors of the Washington S1ate
Bar Association endorsed upda1ed Standards for Public Defense Services.
NOW, THEREFORE, BE IT ORDAINED as follows:
Section One: The "Standards for Indigent Defense Services" attached hereto as Exhibit A are
incorporated herein by reference, as guidelines for the delivery of Public Defense services.
Sec1ion Two: This ordinance REPEALS AND REPLACES Resolution No. 31-91 adopted by the
Jefferson County Commissioners on April 15, 1991.
Section Three: This ordinance shall become effective on the date it is adopted.
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David Alvarez
Deputy Prosecuting Attorney
1Ylo../lPj ,2009.
JEFFERSON COUNTY
BOAR~F C~~MISSIONERS
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Dav! @'cl!ivan, li.air
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Phil Johnson, Member
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ORDINANCE NO. 04-0323-09
"Exhibit A"
Washington State Bar Association
Standards for Indigent Defense Services
On September 20, 2007, the Washington State Bar Association Board of
Govemors adopted updated Standards for indigent defense services as
proposed by the WSBA Committee on Public Defense.
STANDARD ONE: Compensation
Standard:
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
attomeys and staff in prosecutorial offices in the area.
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.
Contracts should provide for extraordinary compensation over and above the
normal contract terms for cases which require an extraordinary amount of time
and preparation, including, but not limited to, death penalty cases. Services
which require extraordinary fees should be defined in the contract.
Attorneys who have a conflict of interest should not have to compensate the new,
substituted attorney out of their own funds.
ORDINANCE NO. 04-0323-09
Flat fees, caps on compensation, and lump-sum contracts for trial attorneys are
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. Under no circumstances
should the hourly rate for lead counsel, whether private or public defender,
appointed in a death penalty case be less than $125 per hour (in 2006 dollars).
Related Standards:
American Bar Association, Standards for Criminal Justice, 5-2.4 and 5-3.1.
American Bar Association, Guidelines for the Appointment and Performance
in Death Penalty Cases, 1988, Standard 10-1.
National Advisory Commission on Criminal Justice Standards and Goals, Task
Force on Courts, 1973, Standards 13.7 and 13.11.
National Legal Aid and Defender Association, Standards for Defender
Services, Standard IV-4.
National Legal Aid and Defender Association, Guidelines for Negotiating and
Awarding Indigent Legal Defense Contracts, 1984, Standard 111-10 and 111-11.
1
Seattle-King County Bar Association Indigent Defense Services Task Force,
Guidelines for Accreditation of Defender Agencies, 1982, Guideline No.6.
ORDINANCE NO. 04-0323-09
STANDARD TWO: Duties and Responsibilities of Counsel
Standard:
The legal representation plan shall require that defense services be provided to all
clients in a professional, skilled manner consistent with minimum standards set forth
by the American Bar Association, 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 best interests of
the client.
Related Standards:
American Bar Association, Standards for Criminal Justice, 4-1.1, 5-5.1 and 5-1.1.
National Advisory Commission on Criminal Justice Standards and Goals, Task
Force on Courts, 1973, Standards 13.1.
National Legal Aid and Defender Association, Standards for Defender Services,
Standard 11-2.
National Legal Aid and Defender Association, Guidelines for Negotiating and
Awarding Indigent Defense Contracts, 1984, Guideline 11I-18.
American Bar Association Guidelines for the Appointment and Performance of
Defense Counsel in Death Penalty Cases
hlto:/Iwww.abanet.ora/deathoenaltv/auidelines.odf
ORDINANCE NO. 04-0323-09
STANDARD THREE: Caseload Limits and Types of Cases
Standard:
The contract or other employment agreement or govemmenl budget 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. 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.
The caseload of a full-time public defense attorney or assigned counsel shall not
exceed the following:
150 Felonies per attorney per year; or
300 misdemeanor cases per attorney per year; or in certain circumstances
described below the case load may be adjusted to no more than 400 cases,
depending upon:
· The caseload distribution between simple misdemeanors and complex
misdemeanors; or
· Jurisdictional policies such as post-filing diversion and opportunity to
negotiate resolution of large number of cases as non-criminal violations;
. Other court administrative procedures that permit a defense lawyer to
handle more cases
250 Juvenile Offender cases per attorney per year; or
80 open Juvenile dependency cases per attorney; or
250 Civil Commitment cases per attorney per year; or
200 Juvenile Status Offenses per attorney per year; or
1 Active Death Penalty cases at a time; or
36 Appeals to an appellate court hearing a case on the record and briefs per
attorney per year. (The 36 standard assumes experienced appel/ate attorneys
handling cases with transcripts of an average length of 350 pages. If attorneys do
not have significant appel/ate experience and/or the average transcript length is
greater than 350 pages, the caseload should be accordingly reduced.)
Definition of Case:
ORDINANCE NO. 04-0323-09
A case is defined as the tiling 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.
General Considerations:
Caseload limits should be determined by the number of cases being accepted
and on the local prosecutor's charging and plea bargaining practices. If a
defender or assigned counsel is carrying a mixed case load including cases from
more than one category of cases, these standards should be applied
proportionately to determine a full caseload. In jurisdictions where assigned
counselor contract attomeys 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.
Related and Source Standards
American Bar Association, Standards for Criminal Justice, 4-1.2, 5-4.3.
ABA Guidelines for the Appointment and Performance of Defense Counsel in
Death Penalty Cases. httD:/twww.abanet.ora/deathDenaltv/auidelines.Ddf
National Advisory Commission on Criminal Standards and Goals, Task Force on
Courts, 1973, Standard 13.12.
American Bar Association Disciplinary Rule 6-101.
American Bar Association Ten Principles of a Public Defense Delivery System.
See,
httD:/www.abanet.oralleaalservices/downloads/sclaid/indiaentdefenseltenorinciDI
esbooklet.odf (2002).
ABA Standards of Practice for Lawyers who Represent Children in Abuse &
Neglect Cases, (1996) American Bar Association, Chicago, IL
The American Council of Chief Defenders Ethical Opinion 03-01 (2003).
National Legal Aid and Defender Association, Standards for Defender
Services, Standards IV-I.
National Legal Aid and Defender Association, Model Contract for Public Defense
Services (2002), available on line at
www.nlada.ora/DMS/Documents/1025702469/Full%20volume.doc
NACC Recommendations for Representation of Children in Abuse and Neglect
Cases.(2001, available online at httD:/Inaccchildlaw.ora/trainina/standards.html)
ORDINANCE NO. 04-0323-09
City of Seattle Ordinance Number: 12501 (2004).
Seattle-King County Bar Association Indigent Defense Services Task Force,
Guideline Number 1.
Washington State Office of Public Defense, Proposed Standards for Dependency
and Termination Defense Attorneys (1999), available online at
httO:/IWWW.oDd.wa.aov/Publications/DeDendencv%20&%20T ermination%20ReDo
rts/1999%20Cost%20of"fi>20Defense%20DeD%20&%20Ter.Ddf
ORDINANCE NO. 04-0323-09
STANDARD FOUR: Responsibility for Expert Witnesses
Standard:
Reasonable compensation for expert witnesses necessary to preparation and
presentation of the defense case shall be provided. Expert wRness 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 retain the expert of Rs choosing and in no
cases should be forced to select experts from a list pre-approved by either the court
or the prosecution.
Related Standards:
American Bar Association, Standards for Criminal Justice, 5-1.4.
National Legal Aid and Defender Association, Standards for Defender Services,
Standard IV 2d, 3.
National Legal Aid and Defender Association, Guidelines for Negotiating and
Awarding Indigent Defense Contracts, 1983, Standard 111-8d.
National Advisory Commission, Task Force on Courts, 1973, Standard 13.14.
ORDINANCE NO. 04-0323-09
STANDARD FIVE: Administrative costs
Standard:
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 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.
Related Standards:
American Bar Association, Standards for Criminal Justice, Providing Defense
Services.
National Study Commission on Defense Services, Guidelines for Legal
Defense Systems in the United States, (1976), Guideline 3.4.
National Legal Aid and Defender Association, Standards for Defender
Services, 1976 1-3, IV 2a-e, IV 5.
ORDINANCE NO. 04-0323-09
STANDARD SIX: Investigators
Standard:
Public defender offices, assigned counsel, and private law firms holding public
defense contracts should employ investigators wRh investigation training and
experience. A minimum of one investigator should be employed for every four
attorneys.
Related Standards:
American Bar Association, Standards for Criminal Justice, 4-4.1 and 5-1.14.
National Advisory Commission on Criminal Justice Standards and Goals, Task
Force on Courts, 1973, Standard 13.14.
National Legal Aid and Defender Association, Standards for Defender Services,
Standard IV-3.
National Legal Aid and Defender Association, Guidelines for Negotiating and
Awarding Indigent Defense Contracts, 1984, Standard 11I-9.
Seattle-King County Bar Association Indigent Defense Services Task Force,
Guidelines for Accreditation of Defender Agencies, 1982, Guideline Number 8.
ORDINANCE NO. 04-0323-09
STANDARD SEVEN: Support Services
Standard:
The legal representation plan should provide for adequate numbers of investigators,
secretaries, word processing staff, paralegals, social work staff, mental health
professionals and other support services, including computer system_staff and
network administrators. These professionals are essential to .ensure the effective
performance of defense counsel during trial preparation, in the preparation of
dispositional plans, and at sentencing.
1. Legal Assistants - At least one full-time legal assistant should be employed for
every four attorneys. Fewer legal assistants may be necessary, however, if
the agency 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.
2. Social Work Staff - Social work staff should be available to assist in
developing release, treatment, and dispositional altematives.
3. Mental Health Professionals - Each agency should have access to mental
health professionals to perform mental health evaluations.
4. Investigation staff should be available as provided in Standard Six.
5. Each agency or 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 attomeys,
investigators, social workers, and administrative staff.
Related Standards:
American Bar Association, Standards for Criminal Justice, 4-8.1 and 5-1.4.
National Advisory Committee on Criminal Justice Standards and Goals, Task Force
on Courts, Standard 13.14.
National Legal Aid and Defender Association, StandardS for Defender Services,
Standard IV-3.
National Legal Aid and Defender Association, Guidelines for Negotiating and
Awarding Indigent Defense Contracts, 1984, Standard 111-8.
Seattle-King County Bar Association Indigent Defense Services Task Force,
Guidelines for Accreditation of Defender Agencies, 1982, Guideline Number 7.
ORDINANCE NO. 04-0323-09
STANDARD EIGHT: Reports of Attorney Activity
Standard:
The legal representation plan shall require that the defense attorney or office
maintain a case-reporting and management information system which includes
number and type of cases, attomey hours and disposition. This information shall
be provided regularly to the Contracting Authority 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 so as to disclose no privileged
information.
A standardized voucher form shall be used by assigned counsel attorneys
seeking payment upon completion of a case. For attorneys under contract,
payment should be made monthly, or at times agreed to by the parties, without
regard to the number of cases closed in the period.
Related Standards:
American Bar Association, Standards for Criminal Justice, 5-3.3. (b) xii, The
Report to the Criminal Justice Section Council from the Criminal Justice
Standards Committee, 1989.
National Legal Aid and Defender Association, Guidelines for Negotiating and
Awarding Indigent Defense Contracts, 1984 Standard 11I-22.
National Study Commission on Defense Services, Guidelines for Legal
Defense Systems in the United States, 1976, Guideline 3.4, 4.1, and 5.2.
ORDINANCE NO. 04-0323-09
STANDARD NINE: Training
Standard:
The legal representation plan shall require that attorneys providing public defense
services 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.
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.
Attorneys in civil commitment and dependency practices should attend training
programs in these areas. Offices should also develop manuals to inform new
attomeys of the rules and procedures of the courts within their jurisdiction.
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.
Related Standards:
American Bar Association, Standards for Criminal Justice, 5-1.4.
National Advisory Commission on Criminal Justice Standards and Goals, Task
Force on Courts, 1973, Standard 13.16.
National Legal Aid and Defender Association, Standards for Defender Services,
Standard V.
National Legal Aid and Defender Association, Guidelines for Negotiating and
Awarding Indigent Legal Defense Contracts, 1984, Standard 111-17.
Seattle-King County Bar Association Indigent Defense Services Task Force,
Guidelines for Accreditation of Defender Agencies, 1982, Guideline Number 3.
National Legal Aid and Defender Association, Guidelines for the Appointment and
Performance of Counsel in Death Penalty Cases, 1988, Standard 9.1.
ORDINANCE NO. 04-0323-09
STANDARD TEN: Supervision
Standard:
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 should serve on
a rotating basis, and except when supervising fewer than ten lawyers, should not
carry caseloads.
Related Standards:
National Advisory Commission on Criminal Justice Standards and Goals, Task
Force on Courts, 1973, Standard 13.9.
National Legal Aid and Defender Association, Guidelines for Negotiating and
Awarding indigent Legal Defense Contract, 1984, Standard 111-16.
Seattle-King County Bar Association Indigent Defense Services Task Force,
Guidelines for Accreditation of Defender Agencies, 1982, Guideline Number 4.
ORDINANCE NO. 04-0323-09
STANDARD ELEVEN: Monitoring and Evaluation of Attorneys
Standard:
The legal representation plan for provIsion of public defense services should
establish a procedure for systematic monitoring and evaluation of attorney
perfonnance based upon publicized criteria. Supervision and evaluation efforts
should include review of time and caseload records, review and inspection of
transcripts, in-court observations, and periodic conferences.
Perfonnance evaluations made by a supervising attomey should be supplemented
by comments from judges, prosecutors, other defense lawyers and clients. Attomeys
should be evaluated on their skill and effectiveness as criminal lawyers or as
dependency or civil commitment advocates.
Related Standards:
National Legal Aid and Defender Association, Guidelines for Negotiating and
Awarding Indigent Defense Contracts, 1984, Standard 111-16.
National Study Commission on Defense Services, Guidelines for Legal Defense
Systems in the United States, 1976, Recommendations 5.4 and 5.5.
National Advisory Commission on Criminal Justice Standards and Goals, Task
Force on Courts, 1973, Standard 13.9.
ORDINANCE NO. 04-0323-09
STANDARD TWELVE: Substitution of Counsel
Standard:
The attorney engaged by local government to provide public defense services
should not sub-contract with another firm or attorney to provide representation
and should remain directly involved in the provision of representation. If the
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 employment
agreement shall address the procedures for continuing representation of clients
upon the conclusion of the agreement. Alternate or conflict counsel should be
available for substitution in conflict situations at no cost to the counsel declaring
the conflict.
Related Standards:
American Bar Association, Standards for Criminal Justice, Standard 5-5.2.
National Advisory Commission on Criminal Justice Standards and Goals, Task
Force on Courts, 1973, Standard 13.1.
National Legal Aid and Defender Association, Guidelines for Negotiating and
Awarding Indigent Defense Contracts, 1984, Guideline 11I-23.
ORDINANCE NO. 04-0323-09
STANDARD THIRTEEN: Limitations on Private Practice of Contract Attorneys
Standard:
Contracts for public defense representation with private attomeys 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
case load which the public defense cases represent.
Related Standards:
American Bar Association, Standards for Criminal Justice, 4-1.2(d), 5-3.2.
American Bar Association, Ethical Obligations of Lawyers Who Represent
Indigent Criminal Defendants When Excessive Caseloads Interfere With
Competent and Diligent Representation, May 13, 2006, Formal Opinion 06-441.
http://www.abanet.org/cpr/pubs/ethicopinions.html
National Advisory Commission on Criminal Justice Standards and Goals, Task
Force on Courts, 1973, Standard 13.7.
National Legal Aid and Defender Association, Standards for Defender' Services,
standard 111-3 and IV-1.
National Legal Aid and Defender Association, Guidelines for Negotiating and
Awarding Indigent Legal Defense Contracts, 1984, Guideline 111-6.
ORDINANCE NO. 04-0323-09
STANDARD FOURTEEN:
QUALIFICATIONS OF ATTORNEYS
1. In order to assure that indigent accused receive the effective assistance of
counsel to which they are constitutionally entitled, attomeys providing
defense services should meet the following minimum professional
qualifications:
A. Satisfy the minimum requirements for practicing law in Washington as
determined by the Washington Supreme Court;
B. and be familiar with the statutes, court rules, constitutional provisions, and
case law relevant to their practice area; and
C. be familiar with the collateral consequences of a conviction, inclUding
possible immigration consequences and the possibility of civil commRment
proceedings based on a criminal conviction; and
D. Be familiar with mental health issues and be able to identify the need to
obtain expert services; and
E. Complete seven hours of continuing legal education within each calendar
year in courses relating to their public defense practice.
2. Trial attomeys' qualifications according to severity or type of case:
A. Death Penaltv 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:
i. The minimum requirements set forth in Section 1; and
Ii. at least fIVe years criminal trial experience; and
iii. have prior experience as lead counsel in no fewer than nine jury trials
of serious and complex cases which were tried to completion; and
iv. have served as lead or co-counsel in at least one jury trial in which the
death penalty was sought; and
v. have experience in preparation of mitigation packages in aggravated
homicide or persistent offender cases; and
vi. have completed at least one death penalty defense seminar within the
previous two years; and
vii. meet the requirements of SPRC 2.1
SPRC 2
APPOINTMENT OF COUNSEL
At least two lawyers shall be appointed for the trial
and also for the direct appeal. The trial court shall retain
ORDINANCE NO. 04-0323-09
The defense team in a death penalty case should include, at a minimum, the two
attomeys appointed pursuant to SPRC 2, a mitigation specialist and an
investigator. Psychiatrists, psychologists and other experts and support personnel
should be added as needed.
B. Adult Felonv 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:
i. Minimum requirements set forth in Section 1, and
responsibility for appointing counsel for trial. The Supreme
Court shall appoint counsel for the direct appeal.
Notwithstanding RAP 15.2(1) and (h), the Supreme Court will
determine all motions to withdraw as counsel on appeal.
A list of attorneys who meet the requirements of
proficiency and experience, and who have demonstrated that
they are learned in the law of capital punishment by virtue
of training or experience, and thus are qualified for
appointment in death penalty trials and for appeals will be
recruited and maintained by a panel created by the Supreme
Court. All counsel for trial and appeal must have
demonstrated the proficiency and commitment to quality
representation which is appropriate to a capital case. Both
counsel at trial must have five years' experience in the
practice of criminal law be familiar with and experienced in
the utilization of expert witnesses and evidence, and not be
presently serving as appointed counsel in another active
trial level death penalty case. One counsel must be, and
both may be, qualified for appointment in capital trials on
the list, unless circumstances exist such that it is in the
defendant's interest to appoint otherwise qualified counsel
leamed in the law of capital punishment by virtue of
training or experience. The trial court shall make findings
of fact if good cause is found for not appointing list
counsel.
At least one counsel on appeal must have three years'
experience in the field of criminal appellate law and be
learned in the law of capital punishment by virtue of
training or experience. In appOinting counsel on appeal,
the Supreme Court will consider the list, but will have the
final discretion in the appointment of counsel.
Available at
hto:llvfmJ.courts.wa.aavlcourt rulesl?fa=court rules.disclav&arouc=suc&set--SPRC&ruleid=sucscr
c2. .
ORDINANCE NO. 04-0323-09
ii. Either: has served two years as a prosecutor; or
a. has served two years as a public defender; or two years in a
private criminal practice, and
b. 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.
C. Adult Felonv Cases - Class B. Violent Offense or Sexual Offense. Each
attomey 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:
i. Minimum requirements set forth in section 1, and
ii. Either:
a. has served one year as prosecutor; or
b. has served one year as public defender; or one year in a private
criminal practice; and
iii. 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.
D. Adult Felonv Cases - All other Class B Felonies. Class C Felonies. Probation
or Parole Revocation. Each staff attomey representing a defendant accused of a
Class B felony not defined in c above 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:
i. Minimum requirements set forth in section 1, and
ii. Either:
a. has served one year as a prosecutor; or
b. has served one year as a public defender; or one year in a
private criminal practice; and
iii. 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
iv. Each attorney shall be accompanied at his or her first felony trial by a
supervisor if available.
E. Persistent Offender (Life Without Possibilitv of Release) ReDresentation.
. 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:
i. The minimum requirements set forth in Section 1; 2 and
2 RCW 10.01.060 provides that counties receiving funding from the state Office of
Public Defense under that statute must require "attorneys who handle the most serious
cases to meet specified qualifications as set forth in the Washington state bar
ORDINANCE NO. 04-0323-09
ii. Have at least:
a. four years criminal trial experience; and
b. one year experience as a felony defense attorney; and
c. experience as lead counsel in at least one Class A felony
trial; and
d. experience as counsel in cases involving each of the
following:
1) Mental health issues; and
2) Sexual offenses, if the current offense or a prior
conviction that is one of the predicate cases
resulting in the possibility of lite in prison without
parole is a sex offense; and
3) Expert witnesses; and
4) One year of appellate experience or demonstrated
legal writing ability.
F. Juvenile Cases - Class A - Each attorney representing a juvenile accused of
a Class A felony shall meet the following requirements:
i. Minimum requirements set forth in section 1, and
ii. Either:
a. has served one year as a prosecutor; or
b. has served one year as a pUblic defender; one year in a
private criminal practice and
iii. Has been trial counsel alone of record in five Class Band C felony
trials; and
iv. Each attorney shall be accompanied at his or her first juvenile trial by
a supervisor, if available.
G. Juvenile Cases - Classes Band C - Each attomey representing a
juvenile accused of a Class B or C felony shall meet the following
requirements:
i. Minimum requirements set forth in Section 1; and
ii. Either:
a. has served one year as a prosecutor; or
b. has served one year as a pUblic defender; or one year in a
private criminal practice, and
association endorsed standards for public defense services or participate in at least one
case consultation per case with office of public defense resource allomeys who are so
qualified. The most serious cases include all cases of murder in the first or second
degree, persistent offender cases, and class A felonies.
ORDINANCE NO. 04-0323-09
c. as been trial counsel alone in five misdemeanor cases brought
to a final resolution; and
iii. Each attomey shall be accompanied at his or her first juvenile trial by
a supervisor if available.
H. Juvenile Status Offenses Cases. Each attorney representing a client in a
"Becca" matter shall meet the following requirements:
i. The minimum requirements as outlined in Section 1; and
ii. Either:
a. 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
b. have participated in at least one consultation per case with a
more experienced attorney who is qualified under this
section.
I. Misdemeanor Cases. Each attorney representing a defendant involved in
a matter concerning a gross misdemeanor or condition of confinement, shall
meet the requirements as outlined in Section 1.
J. DeDendencv Cases. Each attorney representing a client in a dependency
matter shall meet the following requirements:
i. The minimum requirements as outlined in Section 1; and
ii. Attomeys handling termination hearings shall have six months
dependency experience or have signifICant experience in
handling complex litigation.
Iii.
Attomeys in dependency matters should be familiar with expert
services and treatment resources for substance abuse.
Attomeys representing children in dependency matters should have
knowledge, training, experience, and ability in communicating
effectively with children, or have participated in at least
consultation per case either with a state Office of
resource attorney or other attorney
iv.
one
Public Defense
qualified under this section.
K. Civil Commitment Cases. Each attorney representing a respondent shall
meet the following requirements:
i. Minimum requirements set forth in Section 1; and
ii. Each staff attomey shall be accompanied at his or her first 90 or 180
day commitment hearing by a supervisor; and
iii. Shall not represent a respondent in a 90 or 180 day commitment
hearing unless he or she has either:
ORDINANCE NO. 04-0323-09
a. served one year as a prosecutor, or
b. served one year as a public defender, or one year in a private
civil commitment practice, and
c. been trial counsel in five 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,
L. 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:
i. The minimum requirements set forth in Section 1; and
Ii. Have at least:
a. Three years criminal trial experience; and
.b. One year experience as a felony defense attorney or one
year experience as a criminal appeals attorney; and
c. Experience as lead counsel in at least one felony trial; and
d. Experience as counsel in cases involving each of the
following:
1) Mental health issues; and
2) Sexual offenses; and
3) Expert witnesses; and
e. Familiarity with the Civil Rules; and
f. One year of appellate experience or demonstrated legal
writing ability.
Other counsel working on a sex offender commitment cases should meet the
Minimum Requirements in Section 1 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.
M. Contemot of Court Cases
Each attorney representing a respondent shall meet the following
requirements:
i. Minimum requirements set forth in Section 1; and
ii. Each staff attorney shall 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 consuRation per case with a
state Office of Public Defense resource attomey or other attomey
qualified in this area of practice.
N. Soecialtv Courts
ORDINANCE NO. 04-0323-09
Each attorney representing a client in a specialty court (e.g., mental health
court, drug diversion court, homelessness court) shall meet the following
requirements:
i. Minimum requirements set forth in Section 1; and
il. The requirements set forth above for representation in the type of
practice involved in the specialty court (e.g., felony, misdemeanor,
juvenile); and
iii. Be familiar with mental health and substance abuse issues and
treatment alternatives.
3. Appellate Representation.
Each attomey 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:
A. The minimum requirements as outlined in Section 1; and
B. Either:
I. 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
il. 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.
iii. Attomeys 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.
RAW 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 Section 1, 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 attomey in preparing and arguing an RALJ appeal.
4. Legal Interns.
A. Legal interns must meet the requirements set out in APR 9.
B. Legal interns shall receive training pursuant to APR 9 and Standard Nine,
Training.
Related Standards:
ORDINANCE NO. 04-0323-09
National Advisory Commission on Criminal Justice Standards and Goals, Task
Force on Courts, Standard 13.15.
National Legal Aid and Defender Association, Guidelines for Negotiating and
Awarding Public Defense Contracts, 1984, Standard 111-7.
National Legal Aid and Defender Association, Standards for the Appointment and
Performance of Counsel in Deilt/:l Penalty Cases, 1987, Standard 5.1.
ORDINANCE NO. 04-0323-09
STANDARD FIFTEEN: Disposition of Client Complaints
Standard:
Each agency or firm or individual contract attorney providing public defense services
shall have a method to respond promptly to client complaints. Complaints should first
be directed to the attomey, firm or agency which provided representation. If the client
feels that he or she has not received an adequate response, the contracting authority
or public defense administrator should 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.
Related Standards:
The American Bar Association, Standards for Criminal Justice, 4-5.1 and 4-5.2.
ORDINANCE NO. 04-0323-09
STANDARD SIXTEEN: Cause for Termination of Defender Services and
Removal of Attorney
Standard:
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. Termination for good cause shall include the failure of the
attomey to render adequate representation to clients; the willful disregard of the
rights and best interests of the client; and the willful disregard of the standards
herein addressed.
Removal by the court of counsel from representation normally should not occur
over the objection of the attorney and the client.
Related Standards:
American Bar Association, Standards for Criminal Justice, Standard 5-1.3, 5-
5.3.
National Legal Aid and Defender Association, Guidelines for Negotiating and
Awarding Indigent Defense Contracts, 1984, Guideline 111-5.
National Study Commission on Defense Services, Guidelines for Legal
Defense Systems in the United States, 1976, Recommendations 2.12 and
2.14.
National Advisory Commission on Criminal Justice Standards and Goals, Task
Force on Courts, 1973, Standard 13.8.
ORDINANCE NO. 04-0323-09
STANDARD SEVENTEEN: Non-Discrimination
Standard:
Neither the Contracting Authority, in its 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 contracting authority and the contractor shall
comply with all federal, state, and local non-discrimination requirements.
Related Standards:
American Bar Association, Standards for Criminal Justice, Providing Defense
Services, Standard 5-3.1.
National Legal Aid and Defender Association, Standards for Defender
Services, 1976, Standard 11I-8.
ORDINANCE NO. 04-0323-09
STANDARD EIGHTEEN: Guidelines for Awarding Defense Contracts
Standard:
The county or city should award contracts for public defense services 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 contracts must demonstrate their ability
to meet these standards.
Contracts should only be awarded to a) attorneys who have at least one year's
criminal trial experience in the jurisdiction covered by the contract (Le., City and
District Courts, Superior Court or Juvenile Court), or b) to a firm where at least
one attorney has one year's trial experience.
City attorneys, county prosecutors, and law enforcement officers should not
select the attorneys who will provide indigent defense services.
Related Standards:
National Legal Aid and Defender Association, Guidelines for Negotiating and
Awarding Indigent Legal Defense Contracts, 1984, Standard IV-3.
King County Bar Association Indigent Defense Services Task Force, Guidelines
for Accreditation of Defender Agencies, 1982, Statement of Purpose.
Consent Agenda
JEFFERSON COUNTY
BOARD OF COUNTY COMMISSIONERS
AGENDA REQUEST
TO:
Board of County Commissioners
Philip Morley, County Administrator
DATE:
March 23, 2009
SUBJECT:
ORDINANCE NO.
Public Defense
re: Establishment of Standards for the Delivery of
STATEMENT OF ISSUE:
Each year the Courts and Jefferson Associated Counsel (JAC), the public defense fIrm that the County
contracts with, apply for a grant from 1he State OffIce of Public Defense (OPD) through the County
Administrator's OffIce. In 2009, the County received approximately $32,000 which is passed on to JAC per
their current contract and is used to supplement public defense services. The specifIc use for this funding is
"additional investigative services."
ANALYSIS:
Jefferson County has had a resolution in place since 1991 (Resolution No. 31-91) that adopted public defense
standards. OPD contacted the Courts in January to inform them that RCW 10.101.060 requires counties that
receive funding to adopt public defense ordinances. The agency providing indigent defense services for the
county is required to follow the Standards for Indigent Defense Services as adopted by the Washington State
Bar Association Board of Govemors in September, 2007.
RECOMMENDATION:
The Board approve and sign the ordinance regarding establishment of standards for the delivery of public
defense which repeals and replaces Resolution No. 31-91.
REVIEWED BY:
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ty Administrator
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Philip Morle ,