AGREEMENT BETWEEN THE COUNTY OF MARIN AND ALTERNATE DEFENDERS, INC. This Agreement is made and entered into this 29 th day of July 2003 by and between the County of Marin, a political subdivision of the State of California, hereinafter referred to as "County", and Alternate Defenders, Inc., hereinafter referred to as "ADI". WITNESSETH: WHEREAS, constitutional requirements and California Penal Code Section 987.2 mandate that County, provide for an adequate defense for indigent persons accused of crimes; and WHEREAS, Section 987.2(a) of the Penal Code provides that the Marin County Superior Court, hereinafter the Court", shall assign to private counsel any case in which the Public Defender has properly refused to represent an indigent accused because there is a conflict of interest or another valid reason, hereinafter conflict case and that assigned private counsel shall receive a reasonable sum for compensation and necessary expenses; and WHEREAS, Section 987.2(b) of the Penal Code provides that the sums to be paid pursuant to assignments under Section 987.2(a) of the Penal Code may be determined by contract: NOW, THEREFORE, the parties hereto agree as follows: 1. ADI, County, and the Court: a.) Relationship of the Parties. Members of the private criminal defense bar of Marin County have created a not-for-profit corporation called Alternate Defenders, Inc. (ADI) to contract directly with County in order to administer the delivery of legal services to indigent criminal defendants in conflict cases. ADI, housed in its own office, will serve as the link between the Court and private defense attorneys who agree to serve as counsel for defendants who qualify for ADI's services. The parties hereto agree that this Agreement shall not be construed as creating an employment or agency relationship, but that ADI is an independent contractor. It is understood and agreed that County shall have no direct control of, or responsibility for, employees of ADI or its delegate agencies. ADI shall provide attorneys, hereinafter panel attorneys, for appointment in all conflict cases by the Court, and in all cases for which the Public Defender does not provide legal services, including misdemeanor appeals and writs of habeas corpus, except for Welfare and Institutions Code Section 300 cases. County agrees that panel attorneys shall be assigned by the Court to represent defendants in all conflict cases. If and when no qualified panel attorney is available to accept a conflict case appointment, ADI will locate and assign a qualified attorney from outside its panels, hereinafter affiliate attorney, so long as that affiliate attorney agrees to abide by all the terms of this Agreement that apply to panel attorneys. b.) Panel Attorneys. Each panel attorney and affiliate attorney shall be required to enter into a contractual agreement with ADI with respect to fees, billing practices, the use of licensed private investigators and interpreters, malpractice insurance, and other matters that are necessary and proper for safe and effective administration of the program. ADI shall require panel attorneys to obtain professional liability insurance with minimum coverage of $100,000 for each claim and $300,000 for aggregate claims.
c.) ADI Administrative Structure. The structure of ADI shall include a Board of Directors and an attorney or a number of attorneys, or other qualified person(s), to be designated as Program Administrator(s), who shall act as liaison between ADI, County and Court and be responsible for program implementation. The Program Administrator(s) will be appointed by and will report to the ADI Board of Directors. d.) ADI's Peer Review and Education Committees, Mentor Program. ADI shall maintain a Peer Review Committee to resolve questions of attorney qualifications and to serve as final arbiter of fee disputes within ADI. ADI shall also maintain an Education Committee to insure high standards of representation through Continuing Legal Education and a Mentor Program. e.) Types of Cases. Cases will be separated into classes according to the seriousness of the offense(s) charged. Attorneys may represent indigent defendants in a class or classes based upon qualifications and experience according to standards set forth in the Court s Joint Order No. 92-09 Establishing a System of Indigent and Juvenile Defense Panels (10/8/92) as amended from time to time by the Court, and such other qualifications and experience as determined to be necessary by ADI. The classes are as follows: Class 1: Capital cases, cases wherein the accused faces death or life in prison without the possibility of parole (LWOP). Class 2: Non-capital and non-lwop murder cases, felony sex offense cases, and any other cases wherein the accused faces life in prison with the possibility of parole, including habitual offender and third strike prosecutions. Class 3: Straight felony offenses not defined in Class 1 or 2 (e.g.. Cocaine, first degree burglary, robbery, etc.), most arson offenses, second strike prosecutions, any case charged as a first strike offense, and crimes involving explosives (except Penal Code Section 12303 offenses). Class 4: Felony offenses that could be charged as either a felony or a misdemeanor, not specified above. Class 5: All misdemeanor offenses. Class 6: All juvenile cases, including Welfare & Institutions Code Section 601 and 602 cases, except for Welfare & Institutions Code Section 300 (dependency) cases. Juvenile cases may be further defined as subclasses, by ADI for purposes of panels and attorney assignment based upon the seriousness of the case. Class 10: Miscellaneous Cases. This class includes Department of Child Support (CDSS) cases, other civil contempt cases, witness representation cases, and misdemeanor appeals. Miscellaneous cases may be further defined as subclasses, by ADI for purposes of panels and attorney assignment based upon the seriousness of the case. f.) Basis for Case Costs. The total amount of the contract is based, in part, on a calculation of the average professional fees paid in recent years to court appointed attorneys and licensed private investigators hired by them in the following classes of cases, along with estimates of the number of cases expected to be handled as follows: 2
Misdemeanors W&I 601 and 602 Felony - Class 3 Felony - Class 4 260 167 118 140 Civil Witness Misdemeanor DCSS Contempt Representation Appeals 2 1 3 1 If the number of cases that arise during the term of this Agreement exceeds the figures estimated above, County will pay to ADI an additional sum at a per case rate as follows: Misdemeanors Felony W&I 602 Felony - Class 3 Felony - Class 4 $ 503 $ 850 $ 2,671 $ 1,345 Civil Witness Misdemeanor DCSS Contempt Representation Appeals W&I 601 $ 550 $ 550 $ 750 $ 2,480 $ 850 g.) Definition of Case for Purposes of Supplemental Payments. Any filing of criminal charges against an individual defendant, any petition to revoke probation against an individual defendant, or any re-filing after dismissal against an individual defendant will constitute a new case for counting purposes. In addition, any petition filed pursuant to the Sexual Predator Law, which took effect on January 1, 1996, shall constitute a new case. h.) Extraordinary Cases. In the event that a panel or affiliate attorney of ADI is appointed to a Class 3, 4, 5 or 6 case that would clearly require the expenditure of extraordinary time or expense by the appointed attorney or private investigator when compared with other cases of the same class, ADI may submit through the Court Executive Officer a written request to the reviewing judge described in paragraph 1k.) for an order declaring the case to be extraordinary. Such a request must set forth a full and complete justification for such characterization. If the reviewing judge issues an order approving the request, he or she will instruct the Court Executive Officer to forward the approved order with the request to the County Administrator. Payment for attorney and investigator fees in such a case will be made by the County through the Court Executive Officer in accordance with the order to the extent that fees in the case do not exceed the hourly rate for attorney fees established by ADI, and as set forth in Exhibit A, for the class of case, and to the extent that allowable fees in the case exceed the per case rate for the class of case as described in paragraph 1f.). Such a case will constitute a case under section 1g.). In the event that a case is declared to be extraordinary after funds have been expended by ADI for payment to the attorney and/or investigator, such funds that exceeded the cost per case may be reimbursed to ADI. i.) Class 1 and Class 2 Cases. Class 1 and Class 2 cases are not included in the contract amount because they do not represent a stable caseload and because they are subject to extreme variability in time and resources consumed and in their costs. However, County and ADI agree to the following rate schedule for handling Class 1 and Class 2 cases: Class 1 Cases: An hourly attorney rate of $95 to a maximum of $167,650 in attorney fees (per attorney) for the whole case, including trial. The trial per diem will be $615 and counsel may bill up to an additional three (3) hours each trial day for tasks outside of court at the hourly rate of $95 provided, 3
however, that the aggregate of such fees do not exceed the $167,650 per case cap specified in the preceding sentence. Class 2 Cases: An hourly attorney rate of $85 to a maximum of $90,000 for the whole case, including trial. The trial per diem will be $550 and trial counsel may bill up to an additional three (3) hours each trial day for tasks outside of court at the hourly rate of $85, provided, however, that the aggregate of such fees do not exceed the $90,000 per case cap specified in the preceding sentence. Provision specified in paragraph 1a.), as it relates to the assignment of all conflict cases to ADI panel or affiliate attorneys shall apply to Class 1 and Class 2 cases, as will provision specified 1h.) as it relates to Extraordinary Cases, with respect to the aforementioned maximum fees for attorney compensation in Class 1 and Class 2 cases. j.) Scope of Services 1. Responsibility for Payment of Fees, Costs and Expenses. ADI shall make payment from funds received pursuant to this Agreement to panel or affiliate attorneys and to licensed private investigators for their professional services except as noted below for Extraordinary Cases, Class 1, Class 2 and San Quentin cases. Other costs and expenses, including, but not limited to those for interpreters, experts to perform scientific, psychological or other testing, expert consultants or witnesses and travel or witness expenses shall be paid in accordance with provisions governing Interpreter Costs and Other Ancillary Costs in paragraph 1k.). In San Quentin Cases, County shall pay in the same manner as Class 1 and 2 cases since cases arising out of San Quentin tend to require greater time to be spent for defense. Hourly fees in such cases shall be paid at the same hourly rate as other cases of the same class. The County will seek reimbursement from the State for these costs. In Extraordinary Cases, to the extent necessary to compensate them for their extraordinary time or expense as approved by the reviewing judge pursuant to paragraph 1k.) and in Class 1 or Class 2 cases up to the per case maximum for attorney fees specified in paragraph 1i.), County shall pay all fees for professional services, including those rendered by panel or affiliate attorneys and by licensed private investigators, as well as all those costs or expenses incurred in the accused's defense. 2. Bill Review Services 1. ADI will provide bill review services for Class I and Class II case- related expenses consistent with their current payment review policies. In addition, ADI will review payment requests for other defense-related expenses such as investigators, interpreters, expert witnesses, testing, or other defense-related expenses. Once reviewed, ADI will submit their reviewed invoices to the Courts for payment processing. k.) Judicial Approval of Applications for Approval of Ancillary Funds. The parties recognize that certain matters touched upon by this Agreement implicate constitutional guarantees, including, but not limited to the authorization of funds for the employment of experts, licensed private investigators and interpreters, the performance of scientific tests, for travel or witness expenses and for other costs as 1 ADI will have responsibility for bill review for all prospective Class 1 and 2 cases as of September 1, 2003 4
individual attorneys may deem necessary to the proper and adequate preparation and presentation of the defense in any given case. Accordingly, the parties agree as follows: Investigative Costs. Except in Extraordinary Cases, Class 1, Class 2 and San Quentin cases, ADI will review and pay requests for funding of investigative costs approved by ADI because these costs were included in calculation of case costs for purposes of pricing this Agreement. Interpreter Costs. Payment for the cost of court interpreters shall be made by County contingent upon panel attorney and affiliate attorney compliance with procedures established by the Court Executive Officer on behalf of the Court in consultation with ADI. Other Ancillary Costs. In the event that any assigned attorney deems expenditures as described in this section, besides those for private investigators, to be necessary to the proper and adequate preparation and presentation of the defense in any given case, that attorney shall prepare a written application for ancillary funds for such expenditures supported by declaration of need signed by that attorney under penalty of perjury. That assigned attorney shall submit said application to the trial judge, who shall review such application. A copy of any such application shall be provided to ADI for record keeping and tracking purposes only. If the trial judge finds that expenditure of funds is appropriate, the judge shall issue an order approving such expenditure. If the trial judge denies any application presented hereunder, a copy of that denial shall be provided to counsel for the defendant and to ADI, but to no others. Upon presentation of a judicial order approving expenditure of ancillary funds, County shall make such funds immediately available through the Court Executive Officer to the panel attorney who submitted the application. Any amounts paid for these ancillary services, costs or expenses shall not be deducted from the sum to be delivered to ADI under this Agreement. l.) Reports. ADI shall provide quarterly reports, due by the fifteenth day of November, February, May, and August to the County Administrator. Quarterly reports shall include, for the most recent quarter and for the fiscal year to date, information reflecting the number and classification of cases accepted by ADI pursuant to this Agreement. The reports shall also include, for each case accepted, the case number, the class of case, the amount paid by ADI for attorney fees and costs for the case, and the amount paid by ADI for investigator fees and costs for the case. With at least thirty (30) days prior notification to ADI, County may audit ADI's books to ascertain whether a system of accounts has been established which is adequate for the purpose of tracking funds paid under this Agreement and for assuring compliance with applicable federal, state, and county regulations, laws, and directives. Except as prohibited by law or legal privilege, all books, records, reports, and accounts maintained pursuant to this Agreement shall be open to inspection and audit with such prior notification by County throughout the life of this Agreement and for a period of four (4) years thereafter. Except as prohibited by law or legal privilege, County shall have the right to have copies of all or any of the above-cited documents. m.) Contract Amount. County shall pay ADI $888,649 for the delivery of services as described above. This figure reflects a total of $139,046 for administrative and operational expenses and $739,603 for payments to attorneys and investigators and $10,000 for bill review services. All funds received by ADI shall be placed in interest bearing accounts, and interest earned thereon shall be retained by ADI. n.) Payment Plan. The County shall pay ADI one-half of the annual amount referenced in paragraph m.) no later than July 31, 2003, and the remainder of the amount referenced in paragraph m.) no later than January 15, 2004. 5
o.) Term and Effective Date Agreement. The term of this Agreement shall be fiscal year beginning July 1, 2003 and ending June 30, 2004 provided, however, that either party may terminate this Agreement for good cause upon the giving of ninety (90) days written notice of termination to the other party. County shall only pay a pro rata amount for those services performed up to the date of termination, p.) Refund of Surplus. If, at the end of the term of this Agreement, there exists a surplus of funds after payment of all attorney fees, case costs, and costs of administration, ADI shall refund that surplus, less interest which may have been earned on amounts paid by County, to the County. Amounts to be refunded by ADI shall be prorated in the event the Agreement is terminated mid-term pursuant to paragraph 1o.). 2. Compliance with Applicable Laws. ADI shall, in the performance of this Agreement, comply with all applicable laws, ordinances, regulations and codes of the Federal, State and local governments. 3. Prohibition against Use of ADI Funds to Promote Political or Religious Ends. None of the funds, materials, property, or services contributed by County or ADI under this Agreement shall be used in the performance of this Agreement for any partisan political activity, to further the election or defeat of any candidate for public office, or for any religious worship, instruction or proselytization. 4. Insurance and Indemnification. ADI shall indemnify, defend and hold harmless the County of Marin, its officers, agents and employees from any and all claims, liabilities or causes of action, including contractual claims for injuries or death to persons, or damage to persons or property, arising out of or in connection with the organization, promotion or operation of any program funded pursuant to this Agreement, including, but not limited to, altering or eliminating the participation of a panel or affiliate attorney, except when ADI, its directors, officers, agents, or employees act pursuant to an order or directive of the County. In connection with its duty to indemnify, defend and hold County harmless, ADI agrees to maintain: (a.) Commercial general liability insurance with policy limits of One Million Dollars ($1,000,000) combined single limit per occurrence for bodily injury, personal injury and property damage with a general aggregate limit of Two Million Dollars ($2,000,000). (b.) Automobile liability insurance with policy limits of One Million Dollars ($1,000,000) combined single limit per accident for bodily injury or property damage. (c.) Workers compensation and employers liability insurance with policy limits as required by the Labor Code of the State of California and employers liability limits of One Million Dollars ($1,000,000) per accident. The County of Marin and its officers and employees shall be named as additional insureds during the term of this Agreement. ADI shall provide the County with Certificates of Insurance and with original endorsements affecting coverage required by this clause. The certificates and endorsements for the insurance policy are to be signed by a person authorized by that insurer to bind coverage on its behalf. Said certificates shall further state the insurance policy number, the effective dates (both commencement and expiration) of the policy, the kinds and levels of insurance provided, and that the policy provides that notice of cancellation, termination or any material change in coverage shall be delivered to County ten (10) days in advance of the effective date of such cancellation, termination or change. 6
5. Accounting for Material Breaches Disclosed by Audit. Without prejudice to the foregoing, ADI agrees that if, prior to termination or expiration of this Agreement, it is determined by County, upon any final or interim audit by County, that ADI shall have failed in any way to comply with any material requirements of this Agreement, then, upon proper notice, ADI shall forthwith bring itself into compliance and shall pay to County forthwith whatever sums are disclosed to be due to County or shall, at County s election, permit County to deduct such sums from whatever amounts remain not yet disbursed by County to ADI pursuant to this or any subsequent Agreement; or if this Agreement shall have terminated or expired, and It is disclosed upon such audit, or otherwise, that such failure has occurred, ADI shall pay to County forthwith whatever sums are so disclosed to, or determined by, County to be due to County. 6. Integration, Severance and Modification Clauses. This Agreement contains the entire agreement of the parties to it. No other agreement, statement, or promise made on or before the date this Agreement is executed will be binding on the parties. If any provision of this Agreement is held in whole or in part to be unenforceable for any reason, the remainder of that provision or of the entire Agreement will be severable and remain in full force and effect. This Agreement may be amended or modified only by mutual agreement of the parties in writing. 7. Litigation and Attorney Fee Clauses. Should either party seek to litigate any dispute concerning this Agreement or its performance, both parties agree that a judge to be assigned by the Judicial Council, not a Marin County Judge, shall preside over such litigation, inasmuch as the Marin County Superior Court is itself an interested party. Moreover, in the event of such litigation, the prevailing party shall be entitled to recover its costs and attorney's fees from the other party in such an amount as may be fixed by the assigned judge. IN WITNESS WHEREOF, the parties hereto have entered into this agreement the day and year first above written. COUNTY OF MARIN ALTERNATE DEFENDERS, INC. Annette Rose, President Board of Supervisors A. Leonard Bjorklund, President Board of Directors ATTEST: Clerk of the Board F:\ADI Items\ADI 03-04 and 04-05.doc 7