IN THE MATTER OF THE ADOPTION OF STANDARDS 3.2, 5.2, 6.1, 13 AND 14 OF THE WASHINGTON STATE BAR ASSOCIATION 2011 STANDARDS FOR INDIGENT DEFENSE SERVICES; AND STANDARDS 3.3 AND 3.4 OF THE WASHINGTON STATE BAR ASSOCIATION 2011 STANDARDS FOR INDIGENT DEFENSE SERVICES

) ) )) ) ) ) ) ) )

ORDER NO. 25700-A-983

     The Washington State Bar Association having recommended the adoption of the Standards 3.2, 5.2, 6.1, 13, and 14 of the Washington State Bar Association 2011 Standards for Indigent Defense Services with a January 1, 2012 effective date; Standards 3.3 and 3.4 of the Washington State Bar Association 2011 Standards for Indigent Defense Services with a January 1, 2013, effective date, and the Court having approved the Standards for publication;

     Now, therefore, it is hereby

     ORDERED:

     (a) That pursuant to the provisions of GR 9(g), the proposed standards as shown below hereto are to be published for comment in the Washington Reports, Washington Register, Washington State Bar Association and Administrative Office of the Court's websites expeditiously.

     (b) The purpose statement as required by GR 9(e), is published solely for the information of the Bench, Bar and other interested parties.

     (c) Comments are to be submitted to the Clerk of the Supreme Court by either U.S. Mail or Internet E-Mail by no later than October 31, 2011. Comments may be sent to the following addresses: P.O. Box 40929, Olympia, Washington 98504-0929, or Camilla.Faulk@courts.wa.gov. Comments submitted by e-mail message must be limited to 1500 words.

     DATED at Olympia, Washington this 13th day of July, 2011.

	For the Court Madsen, C. J.
	CHIEF JUSTICE

     Standard 14 - Qualifications of Attorneys:

     Standard:

     1. In order to assure that indigent accused receive the effective assistance of counsel to which they are constitutionally entitled, attorneys providing defense services shall meet the following minimum professional qualifications:

     A. Satisfy the minimum requirements for practicing law in Washington as determined by the Washington Supreme Court; and

     B. Be familiar with the statutes, court rules, constitutional provisions, and case law relevant to their practice area; and

     C. Be familiar with the Washington Rules of Professional Conduct; and

     D. Be familiar with the Performance Guidelines for Criminal Defense Representation approved by the Washington State Bar Association; and

     E. Be familiar with the consequences of a conviction or adjudication, including possible immigration consequences and the possibility of civil commitment proceedings based on a criminal conviction; and

     F. Be familiar with mental health issues and be able to identify the need to obtain expert services; and

     G. Complete seven hours of continuing legal education within each calendar year in courses relating to their public defense practice.

     2. Trial attorneys' qualifications according to severity or type of case¹:

     A. Death Penalty Representation. Each attorney acting as lead counsel in a death penalty case or an aggravated homicide case in which the decision to seek the death penalty has not yet been made shall meet the following requirements:

     i. The minimum requirements set forth in Section 1; and

     ii. At least five years criminal trial experience; and

     iii. Have prior experience as lead counsel in no fewer than nine jury trials of serious and complex cases which were tried to completion; and

     iv. Have served as lead or co-counsel in at least one jury trial in which the death penalty was sought; and

     v. Have experience in preparation of mitigation packages in aggravated homicide or persistent offender cases; and

     vi. Have completed at least one death penalty defense seminar within the previous two years; and

     vii. Meet the requirements of SPRC 2.²

     The defense team in a death penalty case should include, at a minimum, the two attorneys appointed pursuant to SPRC 2, a mitigation specialist and an investigator. Psychiatrists, psychologists and other experts and support personnel should be added as needed.

     B. Adult Felony Cases - Class A. Each attorney representing a defendant accused of a Class A felony as defined in RCW 9A.20.020 shall meet the following requirements:

     i. The minimum requirements set forth in Section 1; and

     ii. Either:

     a. has served two years as a prosecutor; or

     b. has served two years as a public defender; or two years in a private criminal practice, and

     iii. Has been trial counsel alone or with other trial counsel and handled a significant portion of the trial in three felony cases that have been submitted to a jury.

     C. Adult Felony Cases - Class B Violent Offense. Each attorney representing a defendant accused of a Class B violent offense as defined in RCW 9A.20.020 shall meet the following requirements:

     i. The minimum requirements set forth in Section 1; and

     ii. Either:

     a. has served one year as prosecutor; or

     b. has served one year as public defender; or one year in a private criminal practice; and

     iii. Has been trial counsel alone or with other counsel and handled a significant portion of the trial in two Class C felony cases that have been submitted to a jury.

     D. Adult Sex Offense Cases. Each attorney representing a client in an adult sex offense case shall meet the following requirements:

     i. The minimum requirements set forth in Section 1 and Section 2(C); and

     ii. Been counsel alone of record in an adult or juvenile sex offense case or shall be supervised by or consult with an attorney who has experience representing juveniles or adults in sex offense cases.

     E. Adult Felony Cases - All other Class B Felonies, Class C Felonies, Probation or Parole Revocation. Each attorney representing a defendant accused of a Class B felony not defined in Section 2 (C) or (D) above or a Class C felony, as defined in RCW 9A.20.020, or involved in a probation or parole revocation hearing shall meet the following requirements:

     i. The minimum requirements set forth in Section 1, and

     ii. Either:

     a. has served one year as a prosecutor; or

     b. has served one year as a public defender; or one year in a private criminal practice; and

     iii. Has been trial counsel alone or with other trial counsel and handled a significant portion of the trial in two criminal cases that have been submitted to a jury; and

     iv. Each attorney shall be accompanied at his or her first felony trial by a supervisor if available.

     F. Persistent Offender (Life Without Possibility of Release) Representation. Each attorney acting as lead counsel in a "two-strikes" or "three strikes" case in which a conviction will result in a mandatory sentence of life in prison without parole shall meet the following requirements:

     i. The minimum requirements set forth in Section 1;³ and

     ii. Have at least:

     a. four years criminal trial experience; and

     b. one year experience as a felony defense attorney; and

     c. experience as lead counsel in at least one Class A felony trial; and

     d. experience as counsel in cases involving each of the following:

     1. Mental health issues; and

     2. Sexual offenses, if the current offense or a prior conviction that is one of the predicate cases resulting in the possibility of life in prison without parole is a sex offense; and

     3. Expert witnesses; and

     4. One year of appellate experience or demonstrated legal writing ability.

     G. Juvenile Cases - Class A. Each attorney representing a juvenile accused of a Class A felony shall meet the following requirements:

     i. The minimum requirements set forth in Section 1, and

     ii. Either:

     a. has served one year as a prosecutor; or

     b. has served one year as a public defender; one year in a private criminal practice; and

     iii. Has been trial counsel alone of record in five Class B and C felony trials; and

     iv. Each attorney shall be accompanied at his or her first juvenile trial by a supervisor, if available.

     H. Juvenile Cases - Classes B and C. Each attorney representing a juvenile accused of a Class B or C felony shall meet the following requirements:

     i. The minimum requirements set forth in Section 1; and

     ii. Either:

     a. has served one year as a prosecutor; or

     b. has served one year as a public defender; or one year in a private criminal practice, and

     iii. has been trial counsel alone in five misdemeanor cases brought to a final resolution; and

     iv. Each attorney shall be accompanied at his or her first juvenile trial by a supervisor if available.

     I. Juvenile Sex Offense Cases. Each attorney representing a client in a juvenile sex offense case shall meet the following requirements:

     i. The minimum requirements set forth in Section 1 and Section 2(H); and

     ii. Been counsel alone of record in an adult or juvenile sex offense case or shall be supervised by or consult with an attorney who has experience representing juveniles or adults in sex offense cases.

     J. Juvenile Status Offenses Cases. Each attorney representing a client in a "Becca" matter shall meet the following requirements:

     i. The minimum requirements as outlined in Section 1; and

     ii. Either:

     a. have represented clients in at least two similar cases under the supervision of a more experienced attorney or completed at least three hours of CLE training specific to "status offense" cases; or

     b. have participated in at least one consultation per case with a more experienced attorney who is qualified under this section.

     K. Misdemeanor Cases. Each attorney representing a defendant involved in a matter concerning a simple misdemeanor or gross misdemeanor or condition of confinement, shall meet the requirements as outlined in Section 1.

     L. Dependency Cases. Each attorney representing a client in a dependency matter shall meet the following requirements:

     i. The minimum requirements as outlined in Section 1; and

     ii. Attorneys handling termination hearings shall have six months dependency experience or have significant experience in handling complex litigation.

     iii. Attorneys in dependency matters should be familiar with expert services and treatment resources for substance abuse.

     iv. Attorneys representing children in dependency matters should have knowledge, training, experience, and ability in communicating effectively with children, or have participated in at least one consultation per case either with a state Office of Public Defense resource attorney or other attorney qualified under this section.

     M. Civil Commitment Cases. Each attorney representing a respondent shall meet the following requirements:

     i. The minimum requirements set forth in Section 1; and

     ii. Each staff attorney shall be accompanied at his or her first 90 or 180 day commitment hearing by a supervisor; and

     iii. Shall not represent a respondent in a 90 or 180 day commitment hearing unless he or she has either:

     a. served one year as a prosecutor, or

     b. served one year as a public defender, or one year in a private civil commitment practice, and

     c. been trial counsel in five civil commitment initial hearings; and

     iv. Shall not represent a respondent in a jury trial unless he or she has conducted a felony jury trial as lead counsel; or been co-counsel with a more experienced attorney in a 90 or 180 day commitment hearing.

     N. Sex Offender "Predator" Commitment Cases. Generally, there should be two counsel on each sex offender commitment case. The lead counsel shall meet the following requirements:

     i. The minimum requirements set forth in Section 1; and

     ii. Have at least:

     a. Three years criminal trial experience; and

     b. One year experience as a felony defense attorney or one year experience as a criminal appeals attorney; and

     c. Experience as lead counsel in at least one felony trial; and

     d. Experience as counsel in cases involving each of the following:

     1. Mental health issues; and

     2. Sexual offenses; and

     3. Expert witnesses; and

     e. Familiarity with the Civil Rules; and

     f. One year of appellate experience or demonstrated legal writing ability.

     Other counsel working on a sex offender commitment cases should meet the Minimum Requirements in Section 1 and have either one year experience as a public defender or significant experience in the preparation of criminal cases, including legal research and writing and training in trial advocacy.

     O. Contempt of Court Cases. Each attorney representing a respondent shall meet the following requirements:

     i. The minimum requirements set forth in Section 1; and

     ii. Each attorney shall be accompanied at his or her first three contempt of court hearings by a supervisor or more experienced attorney, or participate in at least one consultation per case with a state Office of Public Defense resource attorney or other attorney qualified in this area of practice.

     P. Specialty Courts. Each attorney representing a client in a specialty court (e.g., mental health court, drug diversion court, homelessness court) shall meet the following requirements:

     i. The minimum requirements set forth in Section 1; and

     ii. The requirements set forth above for representation in the type of practice involved in the specialty court (e.g., felony, misdemeanor, juvenile); and

     iii. Be familiar with mental health and substance abuse issues and treatment alternatives.

     3. Appellate Representation.

     Each attorney who is counsel for a case on appeal to the Washington Supreme Court or to the Washington Court of Appeals shall meet the following requirements:

     A. The minimum requirements as outlined in Section 1; and

     B. Either:

     i. has filed a brief with the Washington Supreme Court or any Washington Court of Appeals in at least one criminal case within the past two years; or

     ii. has equivalent appellate experience, including filing appellate briefs in other jurisdictions, at least one year as an appellate court or federal court clerk, extensive trial level briefing or other comparable work.

     C. Attorneys with primary responsibility for handling a death penalty appeal shall have at least five years' criminal experience, preferably including at least one homicide trial and at least six appeals from felony convictions, and meet the requirements of SPRC 2.

     RALJ Misdemeanor Appeals to Superior Court: Each attorney who is counsel alone for a case on appeal to the Superior Court from a Court of Limited Jurisdiction should meet the minimum requirements as outlined in Section 1, and have had significant training or experience in either criminal appeals, criminal motions practice, extensive trial level briefing, clerking for an appellate judge, or assisting a more experienced attorney in preparing and arguing an RALJ appeal.

     4. Legal Interns.

     A. Legal interns must meet the requirements set out in APR 9.

     B. Legal interns shall receive training pursuant to APR 9 and in offices of more than seven attorneys, an orientation and training program for new attorneys and legal interns should be held.

     The following Standards for Indigent Defense are adopted pursuant to CrR 3.1, CrRLJ 3.1, and JuCR 9.2 and are effective January 1, 2013:

     Standard 3.3 - Caseload Limits and Types of Cases: General Considerations: Caseload limits reflect the maximum caseloads for fully supported full-time defense attorneys for cases of average complexity and effort in each case type specified. Caseload limits assume a reasonably even distribution of cases throughout the year.

     The increased complexity of practice in many areas will require lower caseload ceilings. The maximum caseload limit should be adjusted downward when the mix of case assignments is weighted toward more serious offenses or case types that demand more investigation, legal research and writing, use of experts and/or social workers or other expenditure of time and resources. In particular, felony caseloads should be assessed by the workload required, and certain cases and types of cases should be weighted accordingly.

     If a defender or assigned counsel is carrying a mixed caseload including cases from more than one category of cases, these standards should be applied proportionately to determine a full caseload. In jurisdictions where assigned counsel or contract attorneys also maintain private law practices, the caseload should be based on the percentage of time the lawyer devotes to public defense.

     Definition of case: A case is defined as the filing of a document with the court naming a person as defendant or respondent, to which an attorney is appointed in order to provide representation.

     Standard 3.4 - Caseload Limits and Types of Cases: Caseload Limits: The caseload of a full-time public defense attorney or assigned counsel shall not exceed the following:

     150 Felonies per attorney per year; or

     [Misdemeanor cases - reserved]

     250 Juvenile Offender cases per attorney per year; or

     80 open Juvenile Dependency cases per attorney; or

     250 Civil Commitment cases per attorney per year; or

     1 Active Death Penalty trial court case at a time plus a limited number of non death penalty cases compatible with the time demand of the death penalty case and consistent with the professional requirements of Standard 3.2; or

     36 Appeals to an appellate court hearing a case on the record and briefs per attorney per year. (The 36 standard assumes experienced appellate attorneys handling cases with transcripts of an average length of 350 pages. If attorneys do not have significant appellate experience and/or the average transcript length is greater than 350 pages, the caseload should be accordingly reduced.)

     Reviser's note: The brackets and enclosed material in the text of the above section occurred in the copy filed by the agency and appear in the Register pursuant to the requirements of RCW 34.08.040.

     Reviser's note: RCW 34.05.395 requires the use of underlining and deletion marks to indicate amendments to existing rules. The rule published above varies from its predecessor in certain respects not indicated by the use of these markings.

     Reviser's note: The typographical error in the above material occurred in the copy filed by the State Supreme Court and appears in the Register pursuant to the requirements of RCW 34.08.040.

© Washington State Code Reviser's Office