W. SCOTT SNYDER Ogden Murphy Wallace, PLLC

Transcription

1 W. SCOTT SNYDER Ogden Murphy Wallace, PLLC

2 Pat Fitzpatrick Tom Donaldson Joe Svoboda Kevin Rogerson Scott Thomas Shane Moloney Thank you:

3 Guiding Principles 1. Use the Resources and Guidance of the Supreme Court Standards and WSBA Disciplinary Process. 2. Grant County and Wilbur: New business model for class action staff civil rights litigation: who s next? 3. RFQ Process - Memorialize compliance with the Standards. Use Warranties of Proposers 4. Case Counts: Law Office Economics and the Economies of Scale. 5. Look for opportunities for Interlocal Cooperation.

4 The Supreme Court Enters the Field Preamble The Washington Supreme Court adopts the following standards to address certain basic elements of public defense practice related to the effective assistance of counsel. The Certification of Appointed Counsel of Compliance with Standards Required by CrR 3.1/CrRLJ 3.1/JuCR 9.2 references specific Applicable Standards. The Court adopts additional Standards beyond those required for certification as guidance for public defense attorneys in addressing issues identified in State v. A.N.J., 168 Wash.2d 91 (2010), including the suitability of contracts that public defense attorneys may negotiate and sign. To the extent that certain Standards may refer to or be interpreted as referring to lcoal governments, the Court recognizes the authority of its Rules is limited to attorneys and the courts. Local courts and clerks are encouraged to develop protocols for procedures for receiving and retaining Certifications.

5 Note: 1) Standards address infrastructure of indigent defense, not detail of day to day practice. 2) Reference to contracts a defense attorney may negotiate and sign. 3) Local Government: Authority of Rules is limited to attorneys and the Courts.

6 -- Use Standards to Your Advantage -- New business model for class action style law suits. Grant County and Wilbur reminiscent of Clean Water Act litigation. Find a disgruntled indigent defendant or two Run up your hypothetical fees, oops: vigorously pursue litigation Be sure you retain oversight to monitor compliance Use fees to finance next suit If Supreme Court has determined which WSBA standards should be adopted, who are we to disagree?

7 RFQ/Contract Addendum Analogy to prevailing wage, non-collusion affidavits in public works contracts. Contracts and RFQ Process: I have read the Standards I certify that my proposal provides the infrastructure required My bid is adequate to comply (CPA analysis) I have obtained copies of quarterly certifications My malpractice coverage has no exclusions for 6th Amendment Ineffective Assistance of Counsel

8 Case Counts and Law Office Economics 400 cases = $150,000 +/ 1. Hundreds of Cases $700,000 $600,000 $500,000 $400,000 $300,000 $200,000 $100,000 $ Small City cases. Contract costs double at case #401. Large City - (6,000 cases) - each additional 400 cases equals 6.66% of total

9 PUBLIC DEFENSE RATES WADA states that the new standards should be as follows: 1) Public Defense Attorneys (PDA) shall be paid comparable to Prosecutors. a) A prosecutor in King County with 5 years of experience is paid $77,000 annually (2006 level). b) Attorney salary should be 50% of total compensation. This allows for support staff, office space, etc. Therefore, the total cost is $154,000 annually. c) If you divide that amount by 400 cases you come out at $385 per case. 2) The above amounts do not take into account attorneys with more years of experience. 3) That also does not take into account mandatory coverage of arraignment calendars and 24-hour emergency phone response. The WADA Standards also encourage PDA s to get to the WADA Standards as quickly as possible. For instance, in addition to $385 per case, WADA wants a minimum of $350 trial fee per jury trial. While formal caseload reporting officially begins in October of 2013, effective October 1 of 2012, public defense attorneys are required to acknowledge and certify that they are following the requirements. Therefore, as of this date, PDAs are required to meet the caseload restriction of 400 cases per attorney per year. Per the Washington Defender Association (WADA)

10 CONTROLLING COSTS AND CASE COUNTS 1. Eliminate direct case filing 2. Dismiss and refile lesser charge at arraignment 3. DWLS policies: No Valid Operator s License Tied to number of repeat offenses 4. Review DWLS and unique city offenses Policy component for City Council Cost/Benefit and public perception 1.

11 INTERLOCAL COOPERATION AND CONTRACT CONTROL 5. Use conflict counsel as overflow counsel 6. Interlocal Agreements Share excess capacity by contract (conflict or overflow) Share a public defender Coordinate case count methodology Combine courts, prosecution & defender

12 1. Adopt Standards. Your city must adopt Standards to comply with state law. Utilize the Bar Association guidelines and Supreme Court Standards as the basis in order to take advantage of the quarterly certification process and the Bar Association s complaint procedures. 2. Amend Your Existing Contract. Incorporate warranties by the public defender that they are complying with Supreme Court Standards and your city s Standards. Require duplicate filings of court certifications of compliance on a quarterly basis.

13 3. Build a Record for Your Case Counts. Gather data, confer with your public defender and other stake holders, and build a legislative record should your city choose to adopt its own case count methodology. 4. Use the Request for Qualification Process as an opportunity to build a record that your public defender has warranted his or her awareness of and ability to comply with all Supreme Court and city Standards in making a proposal.

14 Exhibits A. Model Ordinance/Resolution - use as checklist B. Adoption of Supreme Court Standards by reference C. Sample form contract using adoption by reference approach D. City of Kent Public Defense Contract

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