Loading...
HomeMy WebLinkAboutR-2009-113 Public Defender Agreement with Dixon & Lee Law FirmRESOLUTION NO. R-2009-113 A RESOLUTION authorizing and directing the City. Manager and City Clerk to execute the Public Defender Agreement with Dixon and Lee. WHEREAS, the City of Yakima is mandated by the State to provide representation for indigent criminal defendants; and WHEREAS, the current Public Defender Agreement expires at midnight, December 31, 2009; and WHEREAS, the City Manager, under authority granted by the City Council, negotiated the Public Defender Agreement; and WHEREAS, as a result of these negotiations, the public defender agreed to perform public defender services in 2010 for $415,000.00; and WHEREAS, as a result of these negotiations, the public defender agreed to perform public defender services in 2011 for $423,300.00; and WHEREAS, as a result of these negotiations, the public defender agreed to perform public defender services in 2012 for $431,766.00; and WHEREAS, the City Council has determined that the proposed Public Defender Agreement for these years is in the best interests of the City of Yakima; now, therefore, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF YAKIMA: The City Manager and City Clerk are hereby authorized and directed to execute the attached and incorporated City of Yakima Public Defender Agreement with Dixon and Lee Law Offices. ADOPTED BY THE CITY COUNCIL this 18th day of A ust, 2009. ATTEST: (ke)reslpublic defender agent avid Ed e , Mayor CITY OF YAKIMA PUBLIC DEFENDER AGREEMENT THIS AGREEMENT, made and entered into this day of August, 2009, by and between Marty Dixon and Troy Lee, d/b/a Dixon & Lee Law Firm, of Yakima, Washington, hereinafter the "Public Defender," and the CITY' OF YAKIMA, a municipal corporation, hereinafter referred to as the "City " WHEREAS, the Public Defender is an attorney, or attorneys, licensed to practice law in the State of Washington, with offices at 402 E Yakima Ave., Ste 1090, Yakima, WA 98901; and WHEREAS, the parties hereto are desirous of effectuating an agreement whereby the Public Defender will provide legal services for indigents and other eligible persons in the Yakima Municipal Court and its various departments; now, therefore, IT IS HEREBY mutually agreed as follows: 1. Duties. The Public Defender shall provide quality defense attorney services for indigent defendants charged with misdemeanor and gross misdemeanor allegations occurring within the City of Yakima and processed by the City of Yakima Municipal Court. Such services shall include legal representations at all stages of the proceedings including, but not limited to, representation at the time of arraignment or other initial court appearance for all indigent in -custody defendants, plea, change of plea, pre-trial motions, pre-trial conferences at court, jury and non -jury trials, post -trial motions, sentencings, probation revocation hearings, all proceedings in connection with deferred prosecutions, and competency hearings, all of which shall be the responsibility of the Public Defender. 2 Public Defender Availability Public Defender services must be performed on all court dockets, and a defense attorney must be available by telephone 24 hours a day, seven (7) days a week, for each week of the year in order to give legal advice to persons who are in custody on such charges. 3 Minimum Staffing; Subcontracts.The Public Defender must provide a sufficient number of defense attorneys to provide the services generally described in this Agreement so that all indigent defendants for whom defense counsel is appointed by the Court will be adequately represented Such attorneys shall be admitted to practice in Washington At a minimum, the Public Defender shall provide five full-time public defenders by not later than January 1, 2010 Two attorneys working half time shall equal one full-time attorney. In addition, the Public Defender must provide adequate staffing to monitor and administer the duties of this Agreement so that potential and actual conflicts of Public Defendant Agreement Page 1 of 12 interest are identified and, as may be appropriate or required, promptly identified and designated for assignment to the Alternate Public Defender. The Public Defender may provide a portion of the requisite minimum staffing by subcontract, subject to prior approval of the City as set forth below. The Public Defender agrees to furnish the City with a list of names of subcontractors to whom the Public Defender proposes to award any portion of the work to be subcontracted Any subcontractor must be a person with whom the Public Defender has a direct written contract for indigent defense legal services, which contract shall be submitted to the City for review and approval prior to execution by the Public Defender and the proposed subcontractor. No indigent defense legal services work will be performed by any subcontractor prior to express written approval of the City to such subcontract, which approval will not be unreasonably withheld. All contracts between the Public Defender and any subcontractor shall A. Require that all work be performed in accordance with the requirements of this Agreement and all applicable laws, regulations, Rules of Professional Conduct, or other legal requirements governing the work; B. Require the subcontractor to carry and maintain insurance in strict accordance with this Agreement; C Ensure that the subcontractor receive adequate compensation for work assigned, consistent with the fundamental purpose of assuring at all times the adequate representation of indigent defendants 4. Duty in Case of Conflict. In the event that representation of a defendant creates a conflict of interest, such that the assigned Public Defender cannot represent the defendant,' the Public Defender shall immediately inform the court so that the case may be transferred to another Public Defender. In addition, and notwithstanding the generality of the foregoing, the Public Defender shall identify fifty (50) cases per month, or pro -rated portion thereof, for designation and assignment to an alternate public defender selected by the City of Yakima. At present, the parties mutually acknowledge that the primary alternate public defender is Gillihan Law Office, of Yakima, Washington (the "Alternate Public Defender.") It shall be a primary duty of the Public Defender to confirm that all cases in which the Public Defender has a professional conflict of interest under the applicable Rules of Professional Conduct shall be included within said cases designated for assignment and that the remainder of the cases designated for assignment shall be cases of typical expected expense, complexity, and difficulty in comparison to the cases retained by the Public Defender. Public Defendant Agreement Page 2 of 12 It is further agreed and acknowledged by the parties that past history of conflicts experience with the Public Defender demonstrates virtually no likelihood that the Public Defender will identify and be required to designate for assignment more than fifty (50) cases per month to the Alternate Public Defender in order to avoid conflicts of interest. In the event that the Public Defender experiences more than said number of conflict cases in a given month, assignment of conflict cases will be performed by the Public Defender as may be directed by the City of Yakima. The City of Yakima reserves the right to periodically review the cases designated for assignment by the Public Defender to the Alternate Public Defender for the purpose of assuring that said cases are typical of cases assigned to the Public Defender and are not designated for assignment to the Alternate Public Defender on the basis of perceived expense, complexity, difficulty, or other such consideration. 5. Insurance. Without limiting the Public Defender's indemnification, it is agreed that the Public Defender shall maintain in force, at all times during the term of this Agreement, a policy or policies of insurance covering its operation as described below. A. General Liability Insurance The Public Defender shall maintain continuously public liability insurance with limits of liability not Tess than One Million Dollars ($1,000,000) for each occurrence, personal injury, and/or property damage liability The Public Defender shall provide a certificate of insurance or, upon written request of the City of Yakima, a duplicate of the policy as evidence of insurance protection The Public Defender shall immediately notify the City of any communication with their insurance provider canceling or threatening to cancel insurance coverage under this provision B. Professional Liability Insurance The Public Defender shall maintain or ensure that its professional employees maintain professional liability insurance for any and all acts which occur during the course of their employment with the Public Defender which constitute professional services in the performance of this Agreement For purposes of this Agreement, professional services shall mean any services provided by a licensed professional. Such professional liability insurance shall be maintained in an amount not Tess than One Million Dollars ($1,000,000) combined single limit per claim/aggregate. The Public Defender further agrees that it shall have sole and full responsibility for the payment of any funds where such payments are occasioned solely by the professional negligence of its professional Public Defendant Agreement Page 3 of 12 employees and where such payments are not covered by any professional liability insurance, including but not limited to the amount of the deductible under the insurance policy The Public Defender shall not be required to make any payments for professional liability, if such liability is occasioned by the sole negligence of the City. The Public Defender shall not be required to make payments other than its judicially determined percentage, for any professional liability which is determined by a court of competent jurisdiction to be the result of the comparative negligence of the Public Defender and the City Such insurance shall not be reduced or canceled without thirty (30) days' prior written notice to the City. If such insurance is obtained on a "claims made" basis, the Public Defender will continue to carry coverage for not less than three (3) years after expiration of this Agreement, and will provide a certificate in form and content satisfactory to the City demonstrating such continuing coverage. The Public Defender shall provide certificates of insurance or, upon written request of the City, duplicates of the policies as evidence of insurance protection. C. Automobile Insurance The Public Defender shall maintain in force at all times during the term of this Agreement a policy or policies of insurance covering any automobiles owned, leased, hired, borrowed or used by any employee, agent, subcontractor or designee of the Public Defender to transport clients of the City. Such insurance policy or policies shall specifically name the City, their elected and appointed officials, employees, volunteers, and agents as additional insureds. Said insurance coverage shall be primary insurance with respect to the City, and any insurance, regardless of the form, maintained by the City shall be in excess of any insurance coverage which the Public Defender is required to maintain pursuant to this Agreement Automobile liability coverage as stated herein shall be maintained at One Million Dollars ($1,000,000) combined single limit per accident for bodily injury and property damage D. Workers' Compensation The Public Defender shall maintain Workers' Compensation coverage as required by law. The Public Defender shall provide a certificate of insurance or, upon written request of the City, a certified copy of the policy as evidence of insurance protection. Public Defendant Agreement Page 4 of 12 6 Specific Duties. The Public Defender shall provide services necessary or incidental to the performance of the work set forth in the PUBLIC DEFENDER - STATEMENT OF WORK - EXHIBIT B and consistent with CLIENT REPRESENTATION PRACTICE GUIDELINES- Exhibit C The Public Defender acknowledges and agrees that the City may make changes to the specific duties of the Public Defender as necessary to maintain conformity with the Washington State Rules of Professional Conduct as well as case law and applicable court rules defining the duties of counsel and the rights of defendants in criminal cases. No such changes will be grounds for additional or revised compensation under this Agreement, unless the Public Defender demonstrates to the City's reasonable satisfaction that the change imposes an undue burden on the Public Defender's ability to provide the services required under this Agreement. 7. Term and Renegotiation. This Agreement shall commence on August 1, 2009, and terminate on December 31, 2012, unless extended or sooner terminated as provided herein. Should the Public Defender elect to re- negotiate this Agreement for an additional term beyond 2012, he shall submit a proposal for compensation for additional service on or before June 1, 2012 8. Compensation. In return for the above -enumerated services, the Public Defender shall receive compensation in a total fixed -fee amount as follows: For 2009 - thirty-two thousand two hundred fifty dollars ($32,250.00).per month (provided that payment for the first month of this Agreement shall be prorated depending upon the actual date of final mutual acceptance) For 2010 — a total of four hundred fifteen thousand dollars ($415,000 00), payable in equal monthly (15th to 14th) installments For 2011 — a total of four hundred twenty-three thousand three hundred dollars ($423,300 00), payable in equal monthly (15th to 14th) installments For 2012 — a total of four hundred thirty-one thousand seven hundred sixty-six dollars ($431,766.00), payable in equal monthly (15th to 14th) installments Payments shall be made upon proper voucher for the same, submitted by the Public Defender and received by the Director of Finance and Budget at City Hall, Yakima, Washington. All payments shall be made to Dixon & Lee Law Firm 402 E Yakima Ave. Ste. 1090 Yakima, WA 98901 Public Defendant Agreement Page 5 of 12 9 Expert Witnesses The City shall, in addition, compensate the Public Defender for all expert witness fees incurred by the Public Defender on behalf of indigent clients covered by this Agreement upon application and approval of the court. 10. Assignment. The Public Defender shall not assign or transfer this Agreement without obtaining prior written approval from the City. 11. Successors Bound Subject to the provisions of Section 10, this Agreement shall be binding upon and inure to the benefit of the parties hereto, their successors, and assigns. 12. Ethics Compliance, Reports, and Training The Public Defender will provide the aforementioned services in conformity with the rules of Professional Conduct and will provide the Municipal Court and the City with any reports, fiscal or otherwise, which are reasonably required in the performance of the Municipal Court's and the City's responsibilities. An annual report shall be provided by the Public Defender on a form approved by the City Manager on or before August 1 of each year. The report must include a statement of hours billed for nonpublic defense legal services in the previous calendar year, including number and types of private cases, as the same may be required by RCW 10.101.050, as now exists or may be subsequently amended. The Public Defender agrees to attend training approved by the Washington Office of Public Defense at least once per calendar year, as the same may be required by RCW 10.101.050 and 10 101.060, as now exist or may be subsequently amended. 13. Taxes and Assessments The Public Defender shall be solely responsible for compensating its employees and for paying all related taxes, deductions and assessments, including but not limited to, leasehold excise taxes, federal income tax, FICA, social security tax, assessments for unemployment and industrial injury, and other deductions from income which may be required by law or assessed against either party as a result of this Agreement. In the event the City is assessed a tax or assessment as a result of this Agreement, the Public Defender shall pay the same before it becomes due 14. Independent Contractor. The parties agree that the Public Defender is an independent contractor with the responsibility and authority to control and direct the performance of the details of the work described herein in accordance with the terms and conditions of this Agreement. The implementation of contracted activities and the results to be achieved are solely the responsibility of the Public Defender. No agent, employee, subcontractor, or representative of the Public Defender shall be deemed to be an employee, agent, servant, or representative of the City Municipal Court for any purpose, and the employees, agents, subcontractors, or representatives of the Public Defender are not entitled to any of the benefits the City provides for its employees. The Public Public Defendant Agreement Page 6 of 12 Defender will be solely and entirely responsible for his acts and for the acts of his agents, employees, subcontractors, or otherwise, during the performance of this Agreement. 15 Indemnity The Public Defender hereby agrees to release, indemnify, protect, defend and save harmless the City and their elected and appointed officials, employees, volunteers, and agents from all claims, actions, or damages of any kind and description which may occur to or be suffered by any person or persons, corporation, or property arising, directly or indirectly, out of the operation of this Agreement, caused or contributed thereto by the Public Defender or his employees or subcontractors. Provided, however, that nothing herein shall be deemed to require the Public Defender to indemnify the City or their elected or appointed officials, agents, volunteers, or employees for injury to persons, corporation, and/or property arising from the sole negligence of the City and their elected or appointed officials, employees, volunteers, and agents. In case of suit or action brought against the City and/or their elected or appointed officials, agents, volunteers, and employees for damages arising out of or by reason of any of the above-mentioned causes, the Public Defender agrees to pay all costs of defense, including reasonable attorney's fees and any judgment. 16. Non discrimination. The Public Defender shall not discriminate on the basis of race, creed, color, national origin, or physical, mental, or sensory handicap in the performance of this Agreement. 17. Termination. The City of Yakima may terminate this Agreement, with or without cause, upon ninety (90) days written notice sent by certified mail to the Public Defender at the address listed in this Agreement. The parties shall negotiate a reasonable fee for services to complete client representation which cannot be done through substituted counsel. 18. Governing Law. This Agreement has been and shall be construed as having been made and delivered within the State of Washington, and it is mutually understood and agreed to -by each party hereto that this Agreement shall be governed by the laws of the State of Washington both as to interpretation and performances. 19. Venue. Any action at law, suit in equity, or judicial proceeding for the enforcement of this Agreement or any provisions thereof, shall be instituted and maintained only in the Superior Court for Yakima County, Yakima, Washington 20. Integration. It is understood and agreed that all understandings and agreements, whether written or oral, heretofore had between the parties hereto are merged in this Agreement, which alone fully and completely expresses their agreement, that neither party is relying upon any statement or representation not embodied in this Agreement, made by the other, and that this Agreement may not be changed except by an instrument in writing signed by both parties Public Defendant Agreement Page 7 of 12 21 Waiver of Breach A waiver by either party hereto of a breach of the other party hereto of any covenant or condition of this Agreement shall not impair the right of the party not in default to avail itself of any subsequent breach thereof. Leniency, delay or failure of either party to insist upon strict performance of any agreement, covenant or condition of this Agreement, or to exercise any right herein given in any one or more instances, shall not be construed as a waiver or relinquishment of any such agreement, covenant, condition or right DATED this day of August, 2009. CITY OF YAKIMA By.\ R. A. ZAIS, City Manager 129 North 2nd Street Yakima, WA 98902 ATTEST: DIXON & LEE LAW FIRM i By: City Contract No. Resolution No. ,4-oZOD9-//3 Public Defendant Agreement Page 8 of 12 Publi 1: - d: ' Att• rney At aw 402 E Yakima Ave., Ste. 1090 Yakima, WA 98901 EXHIBIT B PUBLIC DEFENSE STATEMENT OF WORK 1. PUBLIC DEFENDER CONTRACTOR DUTIES AND RESPONSIBILITIES — The Public Defender shall provide high quality indigent defense representation in the cases assigned to it by the Yakima Municipal Court. The representation shall be consistent with EXHIBIT C, CLIENT REPRESENTATION PRACTICE GUIDELINES as set forth below, and with the City's adopted standards for the delivery of public defense services. The representation shall be provided in a professional and skilled manner and shall be in compliance with the Washington State Rules of Professional Conduct as well as 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 best interests of the client. 2 TASKS — The Public Defender shall perform the following tasks with regard to each case to which the Public Defender is appointed A. Maintain a law office with a suitable client interview facility. The Public Defender will provide adequate phone lines, computers, postage, office equipment, office supplies, office furniture and legal research tools to maintain a smooth -running and efficient law office. B. Receive notices of appointment for indigent defendants each court day. Set up and maintain files on each assigned defendant. C. Establish and maintain client contact, keep the client informed of the progress of the case, and effectively provide legal advice to the client throughout the representation D. Timely interview defendants in custody anywhere in Yakima County. E. Meet at least weekly with the Assigned Prosecutor to discuss pending matters. F Maintain continuity of representation at all stages of a case, including attendance at all first appearance proceedings, such as arraignments, for in -custody defendants. Except for illness, vacation or occasional conflicts, the assigned Public Defender shall appear at all Municipal Court hearings with their clients. Public Defendant Agreement Page 9 of 12 G Each full time attorney shall devote at least twenty (20) hours of his/her professional time per week to the delivery of services pursuant to this Agreement. 3 COMPLAINTS A A method to respond promptly to indigent defendant client complaints shall be established by the Public Defender. If the attorney and client cannot resolve the complaint amicably, the attorney shall ask the court for permission to withdraw and substitute new counsel. The complaining client should be informed as to the disposition of his or her complaint within a reasonable period of time. If the client feels dissatisfied with the evaluation and response received, he or she should be advised of the right to complain to the Washington State Bar Association. B. The Public Defender shall notify the City and respond in writing to the City within seven (7) days of learning of any complaint against the Public Defender or against the City relating to the provision of indigent defense legal representation C. The Public Defender shall immediately notify the City of Yakima in writing when it become aware that a complaint lodged with the Washington State Bar Association has resulted in reprimand, suspension, or disbarment. EXHIBIT C Public Defendant Agreement Page 10 of 12 CLIENT REPRESENTATION PRACTICE GUIDELINES Meet and communicate regularly with the client • Thoroughly explain to clients the constitutional, statutory and other rights that they have with regards to their case. • Thoroughly explain to clients the elements of the offense(s) that the City must prove in order to obtain their conviction at a trial. • Describe case procedures and timelines. • Listen to client's questions and respond to them. • Enable clients to candidly communicate with counsel. • Facilitate agreements by realistically evaluating allegations and evidence with clients. • Promptly communicate all offers of settlement. Prepare cases well • Conduct high quality, early case investigation. • Conduct early case negotiations. • Use discovery appropriately. • Prepare for and participate in alternate resolution opportunities ..that may be available. • Obtain experts and evaluators for cases involving disability, mental health, substance abuse or similar issues, when appropriate. • Draft well -researched and written motions and other legal memoranda and other documents. • Competently and aggressively litigate hearings and trials if no agreement is reached. • Appear at all court hearings with clients. Ensure clients have adequate access to services, including court ordered treatment and/or counseling • Explain the importance of obtaining court ordered treatment and/or counseling services to clients. • Develop a thorough knowledge of the resources available. • Explore with clients ways to effectively participate in court ordered treatment and/or counseling. • Ask clients for feedback if obstacles prevent or impede their participation, and follow up with the agency and in court when appropriate. • In appropriate cases, encourage clients to obtain necessary evaluations and enroll in counseling and/or treatment even before ordered by the court to do so. Public Defendant Agreement Page 11 of 12 Prevent continuances and delays within attorney's control • Treat all cases assigned to counsel with the highest priority. • Avoid over scheduling whenever possible. • Request continuances only if they are needed for substantive reasons. Public Defendant Agreement Page 12 of 12 BUSINESS OF THE CITY COUNCIL YAKIMA, WASHINGTON AGENDA STATEMENT Item No. : (J For Meeting of S/i8/o9 ITEM TITLE: Consideration of resolution authorizing Public Defender Agreement with Dixon & Lee Law Firm, of Yakima SUBMITTED BY: Dave Zabell, Assistant City Manager CONTACT PERSON/TELEPHONE: Dave Zabell 575-6040 SUMMARY EXPLANATION: Dixon & Lee Law Firm has been serving as the City's contracted Public Defender since January 1, 2007. By all accounts, the Firm's performance has been satisfactory if not superior. The current agreement, which expires at the end of 2009, includes a provision allowing Dixon & Lee to submit a proposal for extension of the agreement beyond 2009. The Firm exercised this provision by making a proposal earlier this year. Concurrent with contract renewal process, the City has been in negotiations with the firm regarding representation at arraignment of in -custody indigent defendants. The addition of this service and other modifications to the current agreement led us to conclude that a new contract, rather than an extension through a contract amendment, better served both parties. Attached for your review and consideration is a Resolution authorizing the City Manager to execute the attached agreement with the law firm of Dixon and Lee to provide mandated indigent defense services to the City as described in Exhibit B. X Resolution Ordinance Contract X Other (Misc. Information) Funding Source: General Fund APPROVED FOR SUBMITTA 111 .4 City Manager STAFF RECOMMENDATION: Approve Resolution and authorize City Manager to execute contract with Dixon & Lee Law Firm of Yakima. BOARD/COMMISSION RECOMMENDATION: COUNCIL ACTION: iced,6-11 Raoo9 -1)3 The major changes in this agreement from the previous agreement are few, yet significant: • The current contract was amended by City Council action earlier this year in response to a change in the Rules of Professional Conduct for attorneys regarding procurement of conflict counsel. This language has now been incorporated into the agreement. • As discussed above, the scope of work has changed to reflect that the contractor is to provide representation at first arraignment of in -custody indigent defendants. • The contractor is required to provide a minimum of five full time equivalent (FTE) public defenders. This is an increase of one FTE over the previous contract. The agreement, as presented, shall be effective immediately upon City Council approval and extend through December 31, 2012. For 2010, the cost reflects an increase of $70,000 over the 2009 contracted amount of $345,000, for a total of $415,000 and is reflective of the additional FTE. Annual compensation for 2011 and 2012 is proposed at $423,300 and $431,766 respectively, and is necessary to address minor increases in operational costs over the life of the contract. The legal defense of indigent persons at public expense is a mandate stemming from a 50 year old United States Supreme Court decision. Accordingly, the City is responsible for those indigent persons adjudicated by the Yakima Municipal Court. The City has been successful in a competitive grant administered through the Washington State Office of Public Defense (OPD) for the past three years which has helped mitigate the cost of this mandate. The OPD award to the City of Yakima for 2009 is $150,000. The City has submitted its grant application to OPD for 2010, the success of our application will be known in mid-September.