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
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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
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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
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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
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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.