BP BHEAD INT S

AN ACT Relating to repayment of cost of counsel provided to indigent persons; and amending RCW 10.101.005 and 10.101.020.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

Sec. 1. RCW 10.101.005 and 1989 c 409 s 1 are each amended to read as follows:

The legislature finds that effective legal representation should be provided for indigent persons and persons who are indigent and able to contribute, consistent with the constitutional requirements of fairness, equal protection, and due process in all cases where the right to counsel attaches. The legislature further finds that a person who is able to contribute for legal services should make that contribution regardless of whether that person is found guilty or not guilty, or whether the charge is dismissed for any reason.

Sec. 2. RCW 10.101.020 and 1989 c 409 s 3 are each amended to read as follows:

(1) A determination of indigency shall be made for all persons wishing the appointment of counsel in ((~~criminal, juvenile, involuntary commitment, and dependency cases, and any other case where the right to counsel attaches~~)) misdemeanor and gross misdemeanor criminal cases. The ((~~court~~)) legislative authority or its designee shall determine whether the person is indigent pursuant to the standards set forth in this chapter. The legislative authority may designate the court to make the determination of indigency.

(2) In making the determination of indigency, the ((~~court~~)) legislative authority or its designee shall also consider the anticipated length and complexity of the proceedings and the usual and customary charges of an attorney in the community for rendering services, and any other circumstances presented to the court which are relevant to the issue of indigency. The appointment of counsel shall not be denied to the person because the person's friends or relatives, other than a spouse who was not the victim of any offense or offenses allegedly committed by the person, have resources adequate to retain counsel, or because the person has posted or is capable of posting bond.

(3) The determination of indigency shall be made upon the defendant's initial contact with the ((~~court~~)) legislative authority or its designee or at the earliest time circumstances permit. The ((~~court~~)) legislative authority or its designee shall keep a written record of the determination of indigency. Any information given by the accused under this section or sections shall be confidential and shall not be available for use by the prosecution in the pending case.

(4) If a determination of eligibility cannot be made before the time when the first services are to be rendered, the ((~~court~~)) legislative authority or its designee shall appoint an attorney on a provisional basis. If the ((~~court~~)) legislative authority or its designee subsequently determines that the person receiving the services is ineligible, the ((~~court~~)) legislative authority or its designee shall notify the person of the termination of services, subject to ((~~court-ordered~~)) reinstatement.

(5) All persons determined to be indigent ((~~and able to contribute,~~)) shall not be required to execute a promissory note at the time counsel is appointed. The legislative authority or its designee may, at the time counsel is appointed, require a person to execute a promissory note if it determines that there is a reasonable basis to find that the individual could make a contribution toward recoupment of attorney fees. The ((~~person shall be informed whether payment shall be made in the form of a lump sum payment or periodic payments. The payment and payment schedule must be set forth in writing~~)) note must include the following terms and provisions:

(a) The face amount shall be for the amount of costs not to exceed the anticipated cost of services to be rendered. This amount may be adjusted downward at the conclusion of the representation to reflect the actual cost of services rendered.

(b) Payment may be either a single lump sum or divided into installments.

(c) Interest shall be fixed at the rate paid on United States Treasury ninety-day obligations at the time the note is initially prepared and signed.

(d) The maturity of the note may not be fixed at more than five years from the date the note is signed.

(e) The note shall contain a provision that payments may be deferred or forgiven if the maker's indigency continues to maturity of the note. The maker must affirmatively initiate the showing of continued indigency in accordance with procedures established by the governing body or its designee.

(f) The note shall contain provisions that collection costs incurred, including reasonable attorneys' fees, shall be added to the principal balance due and that the note may be assigned to a private collection agency under RCW 19.16.500. When the note is assigned for collection, the maker waives the right to have the note deferred or forgiven under (e) of this subsection. The person receiving the appointment of counsel shall also sign an affidavit swearing under penalty of perjury that all income and assets reported are complete and accurate. In addition, the person must swear in the affidavit to immediately report any change in financial status to the ((~~court~~)) legislative authority or its designee.

(6) The office or individual charged by the ((~~court~~)) legislative authority or its designee to make the determination of indigency shall provide a written report and opinion as to indigency on a form prescribed by the office of the administrator for the courts, based on information obtained from the defendant and subject to verification. The form shall include information necessary to provide a basis for making a determination with respect to indigency as provided by this chapter.

(7) If a person is denied an attorney based on a determination that the person is not indigent, or if the maker of the note is not granted deferment or forgiveness of the note under subsection (6)(e) of this section, that person has ten working days to appeal to the court that has or had jurisdiction over that person's case if the person has received written notice to appeal. The court shall certify its findings on the issues appealed to the legislative authority or its designee.