HomeMy WebLinkAbout10/18/2011 17 Proposed Standards for Indigent Defense Services Affecting Washington Cities •
? A F T
October , 2011
(Representative /Senator )
Re: Comments to Washington Supreme Court re Proposed Standards for Indigent
Defense Services Affecting Washington Cities
Dear •
This letter is sent to advise you of a significant issue presently before the Washington
Supreme Court for consideration and potential action that could have significant adverse
effects on many municipalities in the State, including the City of Yakima ( "Yakima "). The
Washington Supreme Court is presently receiving comments on proposed court rule
changes that would affect the provision of indigent defense services to indigent criminal
defendants by municipalities. Enclosed is a letter sent by Mayor Cawley to the Supreme
Court dated October 19, as well as a letter to Justice Johnson signed by the Presidents of
AWC and WSAMA dated October 14, 2011, which provides background on the issue.
If approved by the Court, the effect of the proposed changes, as well as some associated
defense case load limitations that may be considered by the Court in the near future, would
be a very significant increase in the cost of providing public defense on the already
strained budget in Yakima. While local governments are committed to providing effective
public defense counsel, it is not clear that the new proposed standards will achieve the
desired goal of improving the quality of public defense.
Opinions expressed by many include concerns that the proposed case limitations would
(1) be difficult to implement due to lack of clarity, (2) would not result in more effective
representation, and (3) would be prohibitively costly. RCW 10.101.030 entitled
"Standards" already requires local governments to adopt standards for the provision of
adequate public defense. There are several significant concerns raised by the proposed
revised standards, including:
• The establishment of caseload limits for public defenders. The current proposal
does not yet contain specific caseload limits for gross misdemeanor and
misdemeanor cases, but a subsequent WSBA recommendation does include a limit
of 300 to 400 cases depending on the local adoption of a case weighting system.
There is no established basis for setting this limit. The proposed caseload limits,
along with the weighting system, in the opinion of many attorneys, will have no
practical positive impact on the quality of legal counsel provided to indigent
defendants. Indeed, many skilled attorneys can easily manage a much heavier
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Letter to (Representative /Senator )
October , 2011
Page 2
caseload while still providing effective assistance of counsel (the legal term . of art
for quality representation). Conversely less competent and/or experienced
attorneys may be unable to provide effective counsel with an even lighter caseload.
• Phrases used in the proposed rule change such as "quality representation" and
"average complexity and effort" are vague and poorly defined or undefined, making .
it impossible for any attorney to accurately certify compliance.
• A requirement that attorneys have an office and telephone services does not
recognize modern communication practices such as email, as well as the practical
reality that many qualified public defenders travel to multiple jurisdictions to •
represent and meet with clients and consequently do not maintain a traditional
office.
• Specified attorney caseload limitations restricting any outside legal practice beyond
the specific limits set by the proposed rule could be expected to drive many of the
most qualified practitioners out of the field, resulting in fewer experienced
attorneys serving as public defenders, and conversely, resulting in many
inexperienced attorneys filling the public defender roles.
The proposed rule will also result in unmanageable cost increases to the City if the
caseload limits are imposed. The City presently contracts for the service of five full -time
and experienced public defenders for the municipal court, at a significant financial cost to
the City. Were the proposed rule change approved, it is possible a literal reading of the
rule under the current case levels may result in contracting with approximately eleven
more defenders to meet the proposed standard. This caseload limitation does not have a
justified factual basis to support the proposed unfunded mandate.
This is an important matter facing all Washington cities behalf of the City of Yakima, we
hope that you will assist us by contacting the Supreme Court on our behalf. Thank you in
advance of any assistance you can provide, and please let me know if you have any
questions regarding this request.
Sincerely,
Micah Cawley
Mayor
Address for comments:
Clerk of the Washington Supreme Court
P.O. Box 40929
Olympia, WA 98504 -0929
E - Mail: Camilla.Faulk@courts.wa.gov (limit 1500 words)
'47 FT
October 19, 2011'
Chief Justice Barbara A. Madsen
Washington State Supreme. Court
415 12 Ave SW.
P.O: Box 40929
Olympia, WA 98504 -0929
RE: Adoption of Standards for Indigent Defense Services
Chief Justice Madsen:
The Yakima City Council appreciates the opportunity to comment on the proposed
statewide court rule CrRLJ 3.1 adopting standards for public defense services. We
understand that the Washington State Bar Association Board of Governors has
recommended that the rule include specific caseload limits for misdemeanors. As
representatives of the citizens of the City of Yakima, we are committed to providing
effective legal representation to indigent defendants. However, we are concerned that
the proposed standards will not achieve the desired goal of improving the quality of
public defense and will limit our ability to allocate scarce resources.
We respectfully request that the court consider a certification that addresses the
hallmarks of quality representation. Focusing on the caseload numbers does not ensure
that an attorney is providing quality counsel. We fear that the regulation contained in
the proposed rule will have the unintended effect of reducing the pool of experienced
defense attorneys willing to accept public defense cases, resulting in less experienced
representation, and high turnover.
Despite the fact that the City of Yakima has made a conscious effort to increase the
opportunities for representation and reduce public defender caseloads, the proposed
standards represent a significant change for the City of Yakima. Such a change may be
easier to accomplish for wealthier cities and counties, but for the City of Yakima, a city
withovery limited resources, the implications of the current standards will be far reaching
and unfortunately may not have the intended impact.
Thank you very much for your consideration.
Sincerely,
Micah Cawley
Mayor
a �F WASHINGTON .
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_SrAT
. ' ° SSOCIATION
iszo La ASSOCIATION IINICIPA
Of + ASPDXIG ON NEYS
CITIES
October 14, 2011
Justice Charles. Johnson - '
Rules Committee.Chair
Supreme Court of Washington •
• P.O. Box 40929.
Olympia, WA 98504 -0929
Re: Comments. to Proposed Standards-for Indigent Defense Services Amending CrR 3.1, CrRU 3.1
and JuCR 9.2
Dear Supreme Court Justices:
Thank you for the opportunity, to comment regarding the proposed adoption of Standards for Indigent
Defense Services pursuant to CrR3:1, CrRU 3:1, and JuCR 9'.2. This letter shall serve as the comments of
the Washington State Municipal Attorney's Association (WSAMA) as well as the Association of
Washington Cities (AWC). WSAMA is the official association of city and town attorneys. of the state of
Washington with over 500 WSBA members, and AWC represents each -of the 281 cities and towns of
Washington.
The WSBA Board of Governors (BOG) has provided the Supreme Court with recommendations regarding
the Standards for Indigent Defense Services (Standards). As you are• aware, the Standards were
recommended to the BOG by the Council on Public Defense (CPD). It is important to understand that
while a representative of WSAMA and AWC attended meetings of the CPD during the development of
the Standards, WSAMA and AWC representatives had no voting authority when the CPD's
recommendations were finalized.
As Chief Justice Madsen observed in her February 14, 2011 letter to AWC President Kathy Turner and
Washington State Association of Counties President John Koster, the issues concerning public defense
are widespread, and have many consequences. With this background in mind, we offer alternative
standards for the Court's consideration, as well as comments to the Standards provided by the BOG.
These Proposed Standards Should Not be Adopted
It is not necessary that the Standards currently under consideration be incorporated into court rule.
These Standards already serve as guidelines for municipal agencies pursuant to RCW 10.101.030.
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The Rules of Professional Conduct, and' years of case decisions based upon well established
constitutional principles guide the professionals who provide public defense services in the state of
Washington. These are professionals who took an oath to follow the rules of their profession, and in all
but'a.few exceptional cases, do. The factthat these Standards are being considered necessarily assumes
that public defenders are not capable of following the RPCs, the federal and state Constitutions, and the
oath of attorney.
Moreover, it is inappropriate for the Supreme Court to adopt these Standards. According to GR 9,
"[t]he purpose of rules of:court is•to provide necessary governance of court procedure. and practice and
to. promote justice by ensuring, alair and expeditious - process." GR 9 makes it clear that court rules are
to relate to the functioning of' the court, system, and -not to matters such as attorney qualifications, the
amount of work an.attorney should be permitted-to perform, or the types of communication devices
that an attorney's office shouldlbe equipped-with. The stated goal of these Standards is to improve the
quality of• indigent representation. They do not address. "court-procedure and practice" and they do
nothing to promote a. fair and expeditious court process. While -some of the Standards may be an
appropriate subject of amendments to the Rules of Professional Conduct, they are beyond the scope of
the Court's•rule- making authority as provided by GR 9.
In addition, and perhaps more importantly, the Standards constitute- legislation and are therefore
inappropriate for Supreme Court consideration. The caseload limitations in particular- dictate the
manner in which independent branches of government are to structure -their criminal justice systems by
dictating how many casesits attorneys, whether•employed or contracted, may handle.
It has been stressed repeatedly by the CPD that government agencies can comply with the caseload
limitations by refusing.to file certain cases, including-.traffic misdemeanors such as Driving -While License
Suspended, or by offering diversion programs. Court rules- should not force the . hand of local
government determinations regarding resource allocation or influence a legislative determination
regarding which cases should be. prosecuted. This is an area into which -the Supreme Court has never
crossed because it is an area better fit for the legislative- process. This is evident by RCW 10.101.030
which requires that government agencies adopt standards of public defense. If it has been determined
that the public defense system of this state is in disarray, then the. legislative process is the appropriate
forum to rectify it.
Court rules are required to be. "clear and definite in application." GR 9(a)(6). The Standards under
consideration are not. They are replete with undefined terms and phrases, are vague, and in some
cases, go beyond court - defined principles -of sound public defense (see comments in next section). The
proposed Standards were approved by the BOG without the benefit of review by the - WSBA's Court
Rules and Procedures Committee. At a minimum, prior to the - Supreme- Court's further consideration of
the Standards, it is recommended they be returned to the WSBA for review by the Court Rules and
Procedures Committee.
1 Also, while it is the individual public defender who must submit a certification, the caseload limitations, in large
part, deal with the establishment of the local government's criminal justice system, which the defense attorney
may have little control over. Therefore, certification is inappropriate.
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Any Standards Adopted.Shouldbe Included:Directly in the Court Rules,
CrR3.1, CrRU!'3:1, and JuCR 9.2 are all written such that the Standards will be adopted by reference and
not included' in the court rules. - Based upon a review of other court rules, existing court rules only
reference other court , rules or sections of the Revised Code of Washington. The court rules and the
RCWs are easily accessible. However, the Standards for Indigent Defense Services are not easily
accessible or retained in an official manner. If the goal is more effective representation of the indigent,
the Standards should be readily accessible by both attorneys and indigent defendants alike, and
therefore, should be written directly into the court rules.
Proposed Alternative Standards
WSAMA presented the CPD and the BOG with an alternative to the proposal of the CPD. Unfortunately,
neither the CPD nor the BOG openly considered the alternative. Below is the alternative rule for the
Court's consideration: It is clear and concise, meets mostof :the goals of the -BOG'S proposal, and is
prepared such that it_ would , be written directly into the court rules: In addition, the below alternative
calls for a certification that an attorney can make about conduct- orservices within his or her personal
control, as opposed to the Standard's requirement that an attorney certify to issues that he or she has
no control over.
Rule CrR-3:1(d)(4), JuCR and CrRU 3.1(d)(4)
(d) Assignment of Lawyer:
(4) Before appointing .a lawyer for the indigent person or at the first appearance of the
lawyer in the case, the court shall require the, lawyer to certify to the court orally or in
writing that he or she complic:, meets or will comply with the following applicable
Standards for Indigent Defense Services to be approved by the Supreme Court.:
(i) That he or she has a• caseload such that he or she can provide - to the-defendant
effective assistance of- counsel as guaranteed by the Constitution: In making this
certification, the defense attorney shall consider the number of open cases for which he
or she is counsel of record; the type or complexity of those cases as well as the new
case;l'his or her experience; any local standards; and . the manner in which the
jurisdiction processes_cases:
(11) That -he or she has access to a, location that will accommodate confidential meetings
with the defendant and the receipt of mail; and maintains adequate communications
services to ensure accessibility to the defendant and prompt response to defendant
contact:
(iii) That he or she will arrange to meet with thedefendant prior to the.entry of a plea,
settlement, or -the commencement of trial.
(iv) That he or she.will evaluate theevidence against the defendant and the likelihood of
conviction at- trial -- and will consider the use of additional investigation services and
necessary experts, if any, and that the lawyer will advise the defendant such that the
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defendant may make a meaningful decision as to how to proceed with his or her
defense.
(v) That he or she will inform the defendant of the specific elements required to prove
the commission of the charged crime(s); possible defenses; possible consequences; and
the standard range sentences, any mandatory sentences and the maximum terms of
incarceration and supervision that could result from a conviction for the charged
crime(s).
Comments to WSBA's Proposed Standards for Indigent Defense
The following are comments to the Standards for Criminal Defense Services proposed by the WSBA BOG.
They appear. in the orderthat the Standards appear in the Court's July 13, 2011 order.
Standard -3 2; Proposed Standard 3:2 uses the phrases "effective representation" and "quality
representation "; while the term "effective representation" is left undefined, the. phrase "quality
representation" is defined as. "the minimum level of attention, care, and skill that Washington citizens
would expect of their state's criminal justice system." This definition is vague at best as there is no
measure of what "Washington citizens-would expect of their state's criminal justice system." It would
be impossible for an attorney to certify compliance with this part of the Standard.
In addition, the phrase "quality representation" would be new to criminal justice jurisprudence. There
are only eight appellate level cases in Washington and the Ninth Circuit that have used the phrase (most
of them being cases challenging court ordered attorney's fees), and none of them have defined it.
The courts have consistently referred to "effective assistance of counsel" as the constitutional
requirement of any attorney serving a defendant, and it would be appropriate for this court to utilize
the phrase to take advantage of the over 2000 Washington appellate level cases that have considered
what "effective assistance of counsel" means. To do otherwise would imply that the Supreme Court
intends the court rule to establish a standard different from that set by the Sixth and Fourteenth
Amendments to the United States Constitution, and Article I of the Washington State Constitution. This
the Court should not do. '
Moreover, the standard applies to "defender organizations, county offices, contract attorneys [and]
assigned counsel." It is thus unclear if a lawyer who certifies to a court that he or she is in compliance
with theStandards is only making-that certification on the lawyer's own behalf, or if the.certification is
intended to apply to the entire organization that employs the lawyer. To complicate matters, we
observe that RPC 1.8 (m)(2) establishes a bright line rule, that a lawyer may not knowingly accept
compensation from another lawyer who has entered into an agreement to provide defense services and
pay the costs of providing conflict counsel, investigatory services, or expert services. It is therefore
imperative that the lawyer making such certification to the Court understand the extent of the lawyer's
obligation to investigate any agreement entered by a third -party through which the lawyer is
compensated to ascertain if a violation of RPC 1.8 (m)(2) has occurred.
The following proposed changes to Standard 3.2, which rely on established expectations regarding the
effectiveness of representation, are submitted for your consideration:
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- - _ _ - ,Workload Limits: Public defense attorneys shall allow
each, lawyer to give each client the time and effort necessary to ensure - effective
pFeseata• ion assistance of counsel. Neither dcfcndcr organizations, county. offices;
contract attorncy's nor assigned' counsel: Public defense attorneys should not accept
. workloads that, by reason.oftheir- excessive size, interfere with the rendering of quality
representation effective assistance of counsel. As used in this Standard, "quality
representation" is intended to describe the minimum level of 'attention, care, and 'skill
Standard 5.2 +' Standard-5.2 is entitled; "Administrative Costs." However, the.standard has nothing to
do with administrative costs. The title should accurately reflect the - subject contained within the body of
the standard!
The standard' itself requires an' attorney. to. maintain an office and telephone services. Unfortunately,
the standard fails to acknowledge various alternative communication methods of today's modern
offices. In this day and age, as modes of rapidly evolve, the incorporation of a. particular
technology into a court rule should be critically assessed. Similarly, the- proposed standard implicitly
requires each lawyer who provides public defense services to establish an office, presumably in close
proximity to the population of potential clients expected to be served by the lawyer. However, many
lawyers in all fields of practice do not adhere to the formality of establishing an office in each
jurisdiction in which they practice. Presumably, the. goal of this standard is to ensure-that lawyers have
access to a private space in which they may confer with their client. Office- sharing arrangements and
similar flexible options will better meet this goal. This is particularly true in more rural areas of the
state, where defense attorneys must frequently travel significant distances to meet with their clients.
The following proposed changes to Standard 5.2 are submitted for your consideration:
Accessibility to Client: Public defense - attorneys shall have access to
a location have an office that accommodates confidential meetings with clients and the
receipt of mail, and shall maintain adequate telephene- communication services to
ensure accessibility to the client and prompt response to client contact.
Standard 13 Many public defenders maintain a private practice. Standard 13 puts a limit on the
amount of private work a court appointed attorney can perform. The caseload limits set forth in
Standard 3.41discussed below), provide that an attorney can only handle a set number of cases per year
(e.g "150 Felonies'per attorney per year ").
Rules of Professional Conduct 1.1, 1.2(a), 1.3, and 1.4 require lawyers to provide competent
representation, abide by certain client decisions, exercise diligence, and communicate with the client
concerning the subject of representation. The comments to these rules point out that lawyers are
obligated to maintain proficiency (comment 6 to RPC 1.1); properly investigate and prepare cases
(comment 5 to RPC 1.1); act promptly in pursuit of client goals (comment 3 to RPC 1.3); engage in
reasonable communication with the client (comment 1 to RPC 1.4); and control workload so each matter
can be handled competently (comment 2 to RPC 1.3). These rules are universal, apply to all lawyers, and
provide no exception for lawyers who represent indigent persons charged with crimes.
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In no other practice area in the state of Washington•is there a limit on the amount of business that an
attorney canengage in. Indeed, as in all other learned professions, each practitioner must be granted
personal discretion and appropriate leeway as to the number of hours that practitioner will dedicate to
his or her practice. Simply stated, the amount of work that an attorney can undertake requires the
application of professional judgment as to the attorney's skills and the kinds of cases the attorney
handles in light of the attorney's duties ofcompetence and diligence, and other factors-that may impact
a; lawyer's workload. Arguably, it is inappropriate for the Supreme Court to-dictate how much private
business a hardworking attorney-may perform. The limit set forth in Standard 13 has the potential to
reduce the pool of qualified - public defenders who either -do not wanttheir business restricted, or may,
• at the beginning of the year, refuse court appointments in anticipation of being retained in future
private cases. This will necessarily result in a. degradation of indigent defense services, as skilled
practitioners refuse to perform public sector defense work.
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Moreover, the rule does not address how an attorney who maintains-a private - practice -is to determine
whether he or she has achieved limit if he or she maintains -a practice- representing .a mix of felony,
juvenile, or juvenile dependency cases per year.
Finally, there,';is no misdemeanor caseload limit being considered in these Standards. Therefore, for the
misdemeanor defense attorney, there is no "percentage of a full -time caseload which the - public defense
cases represent" for the attorney to compare his or her private work to. Therefore, the-second sentence
of Standard 13 cannot be applied to the misdemeanor public defender who maintains a private. practice.
We recommend that -the Supreme Court eliminate Standard 13-in its entirety. The current proposal is
unenforceable, and has little meaning. The better practice is to rely on the existing Rules of Professional
Conduct to ensure that all attorneys provide competent representation. In the. event the Supreme
Court elects to emphasize the need for private counsel to provide competent representation, then we
propose Standard 13 . be revised to read as-follows:
Limitations on Private Practice: Private attorneys who provide public defense
representation shall - . •- _ - _ _ _ ' - - - . - -
accepted: These limits shall be based - on the percentage of full timc caseload which
the public defense coSes. cnt give each public defense client the time-and effort
necessary to ensure effective assistance of counsel. Attorneys with a- private practice
should not accept public defense workloads that, by reason of their excessive- size,
interfere with the rendering of effective assistance-of counsel to public defense clients.
Standard 14. Standard 14 establishes minimum qualifications of attorneys providing services to
indigent defendants. We observe that while the majority of -this•proposed standard would seem to
apply equally to any attorney practicing law, and specifically criminal law, in Washington State, several
elements are "made applicable only to those attorneys who provide services to criminal defendants. By
way of example, Proposed Standard 1(A) requires lawyers to "satisfy the minimum requirements for
practicing law in Washington as determined by the Washington Supreme-Court." We•understand that
this Standard. would thus be co- extensive with APR 1 (b), which limits the - practice of law to those who
have passed the -state bar examination, and complied with other applicable provisions of the Admission
to Practice Rules. The provisions set out in Proposed Standards 14 (E) and (F), however, are different.
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Proposed Standard 14 (E) requires only those lawyers providing criminal defense- services to indigent
defendants to be familiar with the consequences of a conviction or adjudication. In addition, proposed
Standard 14 (F) requires only those lawyers providing criminal defense services to indigent defendants
to be familiar with mental health issues: In effect, these two standards elevate the scope of experience
and education of those lawyers who provide indigents with criminal. defense services above that
required of defense counsel who.are in private practice. Wholly ,apart from the surreal outcome of
imposing -two different standardson the .lawyer who provides criminal defense services to both indigent
defendants and defendants who pay for the lawyer's services with their own funds, the imposition of a
unique standard on those lawyers who provide legal services to indigent defendants would seem to
exceed the Constitutional standard of effective assistance of counsel.
Because those lawyers who provide defense services and are in private practice must also meet a
minimum standard in order to provide effective assistance of counsel the standard currently
recognized by Washington state and federal courts as meeting constitutional requirements — the
proposed standard must either establish a different, higher standard, or the language must be
surplusage and redundant. Even though we observed above that portions of the standard would seem
to apply equally to any attorney_ practicing law in Washington state, we would suggest that, as in the
case of:statutory.construction, the better-rule of construction is to give effect to all of the language of a
rule and avoid an interpretation that renders portions of a rule moot or redundant. Following this
principle, if the proposed standard is meant to establish a higher bar than the standard observed by
private defense, counsel, then by enacting the proposed standard, the Supreme Court would be
exceeding the constitutional guarantee of effective assistance of counsel. On the other hand, if the
proposed standard is merely redundant, then the proposed standard introduces confusion to the
Washington Court Rules. In either case, the proposed standard is problematic.
Moreover, we observe that "familiarity" with the consequences of a conviction, including immigration
issues, as well as with mental health issues is a standard that is so vague as to be devoid of meaning.
Standards 3.3 and 3.4 Standards 3.3 and 3.4 are proposed to become effective on January 1, 2013.
While misdemeanor caseload limits are not proposed, there are still significant issues with Standards 3.3
and 3.4 that warrant the comments of the AWC and WSAMA.
Quality Not Considered With Caseload Limits
The fundamental problem with the caseload limits presented in the Standards is that they serve as a
crude instrument to address perceived attorney workload issues, but do not take into consideration
factors such as the experience (or lack of experience) of the public defender, which have a significant
impact on attorney workload. An attorney fresh out of law school will not have the same experience,
understanding of process, advocacy skills, negotiating skills, and trial skills as an attorney who has
practiced for many years. The caseload limits speak only to numbers, and have no bearing on the
eff the representation that a defendant may receive.
In some instances, caseloads below an arbitrarily - established maximum will be excessive, and therefore
unethical in accordance with the Rules of Professional Conduct, while in other instances, caseloads in
excess of the ,maximum will be well within an experienced attorney's capabilities; yet, this attorney will
be sidelined once he or she achieves the limit. The determination of whether an attorney must restrict
his or her workload requires the exercise of independent professional judgment, considering factors
such as case complexity, severity of punishment, availability of attorney and staff assistance, time
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commitments to extraneous matters, and others. See, e.g., comment 5 to RPC 1.1. When skilled
lawyers are sidelined; indigent defendants will be represented by a public defender with Tess experience
and fewer skills. Simply put, while the caseload limits may be intended to achieve better
representation for indigent defendants, the limits do not speak to the effectiveness of the
representation, and in some cases, may compromise a defendant's interests.
We observe as well that acceptable workloads, which are intertwined with the . ethical duties of
competence and diligence that are set out in RPC 1:1.and 1.3, may only be determined by an attorney.
We refer the reader to RPC 1.8' (f)(2) and 2.1 which requires a lawyer to exercise independent
professional judgment. See also c omment•29 RPC 1:8, which makes clear that RPC 1.8 (f) applies fully
to lawyers who provide indigent defense. This is: especially true when issues of client confidences are
implicated: A lawyer's determination that his or her workload adversely impacts the lawyer's obligation
to provide diligent, competent services should be- given due. consideration. Unfortunately, the
imposition of an arbitrary caseload limit based upon an artificial selection of "average" cases that an
"average" lawyer- can handle violates this fundamental tenet: In particular, larger public defense
agencies are ill- equipped•to vary an arbitrary caseload limit perversely leading inexperienced lawyers to
violate their ethical obligations of competence and diligence. To be clear, differences in the complexity
ofz assigned cases; difficulties communicating- with clients who do not speak English; unique legal
research issues, and differences in the skills possessed by every lawyer make it nearly impossible to
establish a caseload limit that has any rational meaning.
Caseload Limits May Circumvent the Legislative Budget Process
Caseload limits have the potential to impact the budgets of local government agencies. The state of
Washington is one the few states in the U.S. in which public defense costs (including trial and appellate
costs) are the responsibility of local government. Again, while misdemeanor caseloads are not
contained within these standards, the AWC and . WSAMA submit that the caseload limits carry the
prospect. of circumventing the local legislative budget making process. This arguably constitutes an
infringement of local government legislative authority.
In addition, if caseload limits place local governments in the position of having to hire more public
defenders; local governments may be forced to seek Tess experienced defenders who are less costly
when compared to more experienced defenders in order to defray costs. This could reduce the overall
effectiveness of representation.
Standard 3.3 is Vague
Standard 3.3' provides that the caseload limits reflect the limits for cases of "average complexity and
effort." This phrase is left-undefined, and as a result, will leave attorneys guessing as to whether the
cases.they are handling are of'average.complexity and will require average effort.
The standard then goes on to require the adjustment of the caseload limits downward when more
serious or demanding cases are handled. Again, there is insufficient direction for the attorney regarding
whether to reduce the caseload limit. The Supreme Court should not adopt a caseload limit system that
will leave - attorneys wondering if they are satisfying the standard. Simply stated, Standard 3.3 is so vague
that attorneys will be required to certify their best guess as to whether they are working within the
requirements of the court rule.
In addition, Standard 3.3 assumes "a reasonably even distribution of cases throughout the year." The
reality is that an attorney may receive few appointments during the first half of the year, and numerous
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appointments during the second half: It is not clear in the rule the importance of this phrase, or the
consequence of there being an uneven distribution of cases throughout the year.
It is unreasonable to expect an attorney to make a certification to the court, under threat of contempt
findings or misconduct, that he or she complies with a rule that is so vague that compliance is
questionable. We recommend that Standard 3..3 be eliminated in its entirety.
The Definition of Case is Too Broad
Proposed.Standard 3.1 defines "case" 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." This
definitionis too. broad.
In some instances, an attorney is•appointedras standby counsel. Under this definition, this appointment
would constitute a case even though,the attorney would be required to perform only a minimal level of
work. In many courts in the state, attorneys,are provisionally appointed to assist defendants during the
arraignment or bail process, and are then excused as counsel. These appointments would constitute a
case under the standard as well. In other instances, an attorney is appointed for a defendant who
subsequently fails to contact the defense attorney, and fails to appear at the defendant's- next scheduled
courtappearance. These appointments, too, would constitute.a case under the standard.
The following proposed changes to the definition of "case" are submitted for your consideration:
Definition of Case: 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
the appointment, by the court, of attorney to represent a
defendant in a criminal case or other cause of action filed against the defendant. When
a group of cases against a defendant will be tracked by the -court contemporaneously,
the -group of cases will be considered one case. Provisional or temporary appointments,
or appointments in a- standby capacity, shall not constitute -a case.
The Year restriction in the•Caseload Limits is Overly Restrictive -
Many of•the caseload limits provide a predetermined number of cases on a per -year basis. For
example, Standard 3.4 would limit an attorney to "150 Felonies ... per year."
There are a number of- problems with attaching a caseload limit to a "per year" time period.
First: an attorney may be appointed to a case, and then remain the attorney of record for a
protracted period while a convicted defendant is in a probationary status or while his case is on
appeal. Even if there was little work for the attorney to perform during: the protracted period,
the matter would count as a case.
It appears that the "per year" language in Standard 3.4 is intended to be based on a calendar
year. Theoretically, a. public defender could obtain 150 felony assignments during the latter half
of the year, and another 150 felony during the beginning of the following year, and suddenly
have a caseload of 300 felonies.
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•
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If the intent of the standard is to allow a public defender to, for example, handle 150 felonies,
then the per -year language should be removed. The following are proposed changes to the
caseload limits:
150 open felony cases felonies per attorney per year; or
250 open juvenile offender cases; or
80 open juvenile dependency cases-per—atter-Rey; or
250 open civil commitment cases ; or . .
Conclusion
It is critical that standards that become court rule relate to court processes and procedures.
Standards must also be clear and concise, especially when attorneys will be required to certify
they comply with the standards. The Standards under consideration are not appropriate for
court rule. It is our hope that the Court will consider amending the court rules to remove the
requirement of standards, or consider the alternative rule that has been proposed. If the Court
intends to adopt some form of the Standards, it is our hope that the Court will refer the
standards back to the WSBA Court Rules and Procedures Committee, and consider our
comments. We thank you for the opportunity to comment.
Sincerely,
Joseph Svoboda, President
Washington State Association of Municipal Attorneys
Ve it Gi 'jl'
Nancy McLaughlin, President
Association of Washington Cities
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