023-14 - Ordinance - New Chapter 9.09 Public Defense ServicesIntroduced by: Interim City Attorney
Drafted by: Interim City Attorney
Introduced: December 9, 2014
Adopted: December 9, 2014
ORDINANCE NO.023-14
AN ORDINANCE OF THE CITY OF PORT ORCHARD,
WASHINGTON RELATING TO INDIGENT DEFENSE
STANDARDS, ADDING A NEW CHAPTER 9.09 TO THE
PORT ORCHARD MUNICIPAL CODE, SETTING
STANDARDS FOR THE DELIVERY OF PUBLIC
DEFENDER SERVICES AS REQUIRED BY RCW
10.101.030, WHICH STANDARDS SHALL INCLUDE
COMPENSATION OF COUNSEL, DUTIES AND
RESPONSIBILITIES OF COUNSEL, CASE LOAD LIMITS
AND TYPES OF CASES, RESPONSIBILITY FOR EXPERT
WITNESS FEES AND OTHER COSTS, REPORTS OF
ATTORNEY ACTIVITY AND VOUCHERS, TRAINING,
SUPERVISION, MONITORING AND EVALUATION OF
ATTORNEYS, AND A NUMBER OF OTHER STANDARDS,
SETTING AN EFFECTIVE DATE.
WHEREAS, it is a constitutional requirement, a requirement of Chapter 10.101 RCW and
a public purpose that each person charged with a crime punishable by incarceration or involved in
certain other proceedings that may result in loss of liberty or loss of fundamental rights, be
provided with effective legal representation in order to ensure equal justice under law without
regard to ability to pay; and
WHEREAS, it is the intention of the City Council, consistent with Chapter 10.101 RCW
and other applicable law, to make such services available in an efficient manner that provides
effective representation at reasonable cost to the City; and
WHEREAS, RCW 10.101.030 requires the City to adopt standards for the delivery of
Public Defense Services, whether those services are provided by contract, assigned counsel or a
public defender office; and
WHEREAS, the Washington State Bar Association has developed standards for Public
Defense Services (2011); and
WHEREAS, the Washington Supreme Court by Order No. 25700-A-1004, as amended,
has adopted new Standards for Indigent Defense and a certificate of compliance, including
misdemeanor case load limits, effective January 1, 2015;
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF PORT ORCHARD,
WASHINGTON, DO ORDAIN AS FOLLOWS:
Ordinance No. 023-14
Page 2 of 8
Section 1. New Chapter. That the Port Orchard Municipal Code shall be, and is hereby,
amended to add Chapter 9.09, to read as follows; provided manifest and numbering errors shall be
corrected prior to publication:
Chapter 9.09
PUBLIC DEFENSE SERVICES
Sections:
9.09.010
Statement of Intent and Interpretation.
9.09.020
Compensation.
9.09.030
Duties and Responsibilities of Counsel.
9.09.040
Caseload Limits, Private Practice Limits and Reporting.
9.09.050
Experts and Investigators.
9.09.060
Administration and Support Services.
9.09.070
Qualifications and Training.
9.09.080
Supervision, Monitoring and Evaluation of Attorneys.
9.09.090
Substitution Conflict Counsel.
9.09.100
Disposition of Client Complaints.
9.09.110
Termination and Removal of Defender Services.
9.09.120
Non -Discrimination.
9.09.130
Guidelines for Awarding Public Defense Contracts.
9.09.140 Update and Evaluation.
9.09.010 Statement of Intent and Interpretation.
These standards for Public Defense Services are adopted in order to comply with the
requirements of RCW 10.101 and the Washington State Supreme Court Standards for Indigent
Defense (CrRLJ 3.1 Standards). The provisions of these standards shall be broadly and liberally
construed to achieve their stated purpose, which is to provide standards which afford "quality
representation" in the provision of public defense to indigent criminal defendants. "Quality
representation" describes the minimum level of attention, care, and skill that Washington
citizens would expect of their State's criminal justice system. These standards may be amended
from time to time to reflect changes in the rules established by the Washington State Supreme
Court, the Washington State Bar Association Standard for Indigent Defense Services (WSBA
Indigent Defense Standards), or interpretations of the rules and standards by the Washington
courts.
9.09.020 Compensation.
The City's public defender(s) compensation shall be established through negotiation of a
contract for defender services. The compensation package should reflect the customary
Ordinance No. 023-14
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compensation of the community for similar services rendered by other publicly paid attorneys to a
public client. The City shall consider training, experience, and the nature and extent of services
requested and the time and labor required of the attorney undertaking defender services. Services
which require extraordinary fees should be defined in the contract. Among the reasonable
expenses to be covered by the contract include expert witnesses, investigative costs, and the
administrative overhead costs of paraprofessionals, including, as needed, mental health
professionals, social workers, and translators.
9.09.030 Duties and Responsibilities of Counsel.
A. Public Defense 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 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.
B. Public Defense shall be provided to indigent clients whose eligibility has been
determined by court appointment.
C. All Public Defenders providing services by contract shall quarterly certify their
compliance with the standards for indigent defense by filing a Certification of Compliance
as required by CrRLJ 3.1. Such forms shall be filed with the City of Port Orchard
Municipal Court.
9.09.040 Caseload Limits, Private Practice Limits and Reporting.
A. The caseload of the Public Defender shall consist of misdemeanors and RAU appeals
to Superior Court. A case is defined as the filing of a document with the Court naming a
person as a defendant or respondent, to which an attorney is appointed in order to provide
representation.
B. No Public Defender performing services by contract shall exceed four hundred (400)
cases in any calendar period. Contracts for Services shall prohibit the Public Defender
from performing services under any other similar contract which, taken in conjunction
with the services to be performed under the contract, would exceed the case count in any
calendar year. The case count for a Public Defender who maintains a private practice
shall be adjusted to reflect the relative percentage which criminal defense relates to the
Public Defender's total practice. For example, based on an attorney whose practice
consists of fifty percent (50%) services provided under contract to the City (adjusted for
any other Public Defense Services performed for another entity) and fifty percent (50%)
private practice, the total case count for such an attorney shall not exceed two hundred
(200) cases.
C. 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
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assigned to RAU appeals shall have a minimum of one year's experience in RAU appeals
or in the event multiple attorneys perform services in the contract, a minimum of
one attorney assigned to or supervising RAU appeals shall have such experience.
D. The standards provided herein for caseloads may be adjusted up or down depending
upon the complexity of any particular case. A Public Defender may request to have the
weighting for an unusually complex case not addressed adequately by these standards
increased depending upon the complexity and requirements of 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 experts, and/or social
workers or other expenditure of time and resources.
E. 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 law practice, the caseload shall be based upon the
percentage of time that the lawyer devotes to public defense with the City.
F. Monthly reports shall be provided by the Public Defender to the Court
Administrator. The report shall identify the number and type of cases assigned,
attorney hours, case disposition, the case count year-to-date, and cases which the
Public Defender has been assigned a higher case count. The Public Defender case tracking
and reporting system shall be maintained independently from client files so as to disclose
no privileged information.
9.09.050 Experts and Investigators.
A. A 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. The services
of expert witnesses will be provided under contract when approved by the Court
through ex parte motion. The expert will be paid directly by the City.
B. Public defense attorneys shall use investigation services as appropriate. The investigator
shall have appropriate training and experience in the area of criminal defense and
investigations relating to criminal matters. Normally, a ratio of one investigator to four
attorneys shall be provided as necessary. Contracts for Public Defense Services shall
include investigative services as a part of reimbursed overhead.
9.09.060 Administration and Support Services.
A. Contracts for public defense services and proposals submitted in pursuit of such contracts
shall provide for or include adequate administrative costs and support, including but not
limited to travel, telephones, law library and/or electronic research capabilities,
Ordinance No. 023-14
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financial accounting, case management systems, computers, word processing equipment
and software, office space and supplies. The Public defense attorney shall have access to
an office that accommodates confidential meetings with clients and a telephone system,
internet access and postal address to ensure prompt response to client contact.
B. Public defense attorneys shall have adequate support staff to ensure the effective
performance of defense counsel.
9.09.070 Qualifications and Training.
A. Every Public Defender performing services under contract with the City shall satisfy the
minimum requirements for practicing law in the State of Washington as determined by the
Washington State Supreme Court and possess a license to practice law in the State.
B. Public Defenders performing services under contract shall:
1. Be familiar with the statutes, court rules, constitutional provisions, and case law
relevant to the practice area; and
2. Be familiar with the Washington Rules of Professional Conduct (WRPC); and
3. Be familiar with the Performance Guidelines for Criminal Defense Representation
approved by the Washington State Bar Association; and
4. Be familiar with the consequences of a conviction or adjudication, including
possible immigration consequences and the possibility of civil
commitment proceedings based upon a criminal conviction; and
5. Be familiar with mental health issues and be able to identify the need to obtain
expert services; and
6. Complete seven (7) hours of continuing legal education within each calendar year
and courses related to public defense practice; and
7. Have the opportunity to attend courses that foster trial advocacy skills and to
review professional publications and other media; and
8. Complete and sign the Certification Form included in the Public Defense contract.
Ordinance No. 023-14
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9.09.080 Supervision, Monitoring and Evaluation of Attorneys.
The City recognizes that smaller firms providing Public Defense Services may provide
quality service through experienced practitioners. When applicable, public defenders should make
provision for supervision, monitoring and evaluation in accordance with Bar Association
standards or provide alternative methods for the supervision, monitoring and evaluation of
attorneys which achieve substantially the same goals shall be given for effective supervision,
monitoring and evaluation. Supervision and evaluation efforts should include review of time and
caseload records, review and inspection of transcripts, in -court observations, and periodic
conferences. Performance evaluations made by a supervising attorney should be supplemented by
comments from judges, prosecutors, other defense lawyers and clients. Attorneys should be
evaluated on their skill and effectiveness as criminal lawyers or as dependency or civil
commitment advocates.
9.09.090 Substitution Conflict Counsel.
A. The selection process for a Public Defender shall be by review of names and experience
levels of the attorneys who will actually provide services, to ensure that they meet
minimum qualifications. The Public Defender shall be prohibited from sub -contracting
defense services without the express written consent of the City.
B. In the event of conflict or removal of the Public Defender, Conflict Counsel shall
be available, either through a joint contract with the Public Defender and Conflict Counsel,
by separate contract with Conflict Counsel or by court appointment. In the event that
alternative or Conflict Counsel is required to be assigned, the Public Defender shall bear
no part of the costs associated with the appointment of alternative or sub -Conflict Counsel.
The Public Defender shall continue representation of clients as necessary upon conclusion
of the agreement for public defense services.
C. Conflict Counsel shall adhere to the standards established by this Chapter, including but
not limited to, an evaluation and reporting of the case count under the procedures set forth
in this ordinance.
D. Conflict Counsel may be assigned by the Municipal Court upon the request of the Public
Defender.
9.09.100 Disposition of Client Complaints.
The Public Defender shall provide 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 City shall 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. Nothing herein shall bar a client from also filing a complaint with the Washington State Bar
Association.
9.09.110 Termination and Removal of Defender Services.
Ordinance No. 023-14
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Termination of the contract shall occur for "good cause." Good cause shall include
the failure of the contract Public Defender to render adequate representation to clients, the willful
disregard of the rights and best interests of the client, and the willful disregard of the these
standards. Termination may also occur for violation of the express terms of the contract, and
these standards, provided, however, that the Public Defender shall be provided reasonable
opportunity, following notice, to cure any technical contract violations that do not impair the
provision of quality representation to the indigent client. Removal by the Court of counsel from
representation normally should not occur over the objection of the attorney and the client.
9.09.120 Non -Discrimination.
Neither the City, 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,
sex, sexual orientation or handicap. Both the City and the contractor shall comply with all federal,
state and local nondiscrimination requirements.
9.09.130 Guidelines for Awarding Public Defense Contracts.
City attorneys, county prosecutors, and law enforcement officers shall not select the
attorneys who will provide indigent defense services. The 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 attorneys who have at least one year's trial
experience.
9.09.140 Update and Evaluation.
The City will review and modify these standards as necessary when the rules established by
the Washington State Supreme Court are applied and interpreted by the courts and, when
appropriate, changes are adopted by the Bar Association and other administrative agencies.
Section 2. Severability. If any one or more section, subsections or sentences of this
chapter are held to be unconstitutional or invalid, such decision shall not affect the validity of the
remaining portion of this chapter and the same shall remain in full force and effect.
Section 3. Effective Date. This ordinance shall be in full force and effect from and
after five (5) days from the date of its passage and publication as provided by law.
PASSED by the City Council of the City of Port Orchard, APPROVED by the Mayor and attested
by the Clerk in authentication of such passage this 9th day of December, 2014.
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MAYOR TIM MATTHES
Ordinance No. 023-14
Page 8 of 8
ATTEST/AUTHENTICATED:
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BRANDY RINEARSON, City Clerk
SPONSORED BY:
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BEK AS BY, Councilmember
APPROVED A� TO FORM:
Office of thekitfAttomev
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NOTICE OF CITY OF PORT ORCHARD
ORDINANCE
The following is a summary of an Ordinance approved by the Port Orchard City Council at their regular
Council meeting held December 9, 2014.
ORDINANCE NO.023-14
AN ORDINANCE OF THE CITY OF PORT ORCHARD,
WASHINGTON RELATING TO INDIGENT DEFENSE
STANDARDS, ADDING A NEW CHAPTER 9.09 TO THE
PORT ORCHARD MUNICIPAL CODE, SETTING
STANDARDS FOR THE DELIVERY OF PUBLIC
DEFENDER SERVICES AS REQUIRED BY RCW
10.101.030, WHICH STANDARDS SHALL INCLUDE
COMPENSATION OF COUNSEL, DUTIES AND
RESPONSIBILITIES OF COUNSEL, CASE LOAD
LIMITS AND TYPES OF CASES, RESPONSIBILITY FOR
EXPERT WITNESS FEES AND OTHER COSTS,
REPORTS OF ATTORNEY ACTIVITY AND VOUCHERS,
TRAINING, SUPERVISION, MONITORING AND
EVALUATION OF ATTORNEYS, AND A NUMBER OF
OTHER STANDARDS, SETTING AN EFFECTIVE DATE.
Copies of Ordinance No. 023-14 are available for review at the office of the City Clerk of the City of Port
Orchard. Upon written request a statement of the full text of the Ordinance will be mailed to any
interested person without charge. Thirty days after publication, copies of Ordinance No. 023-14 will be
provided at a nominal charge.
City of Port Orchard
Brandy Rinearson
City Clerk
Publish: Port Orchard Independent
December 19, 2014