WSR 20-01-035
RULES OF COURT
STATE SUPREME COURT
[December 4, 2019]
IN THE MATTER OF THE SUGGESTED AMENDMENTS TO CrR 3.1 STDS, CrRLJ 3.1 STDS, JuCR 9.2 STDS, AND NEW MPR 2.1 STDS | ) ) ) ) | ORDER NO. 25700-A-1276 |
The Washington State Bar Association Board of Governors, having recommended the suggested amendments to CrR 3.1 Stds, CrRLJ 3.1 Stds, JuCR 9.2 Stds, and New MPR 2.1 Stds, and the Court having approved the suggested amendments for publication;
Now, therefore, it is hereby
ordered:
(a) That pursuant to the provisions of GR 9(g), the suggested amendments as shown below are to be published for comment in the Washington Reports, Washington Register, Washington State Bar Association and Administrative Office of the Court's websites in January 2020.
(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 April 30, 2020. Comments may be sent to the following addresses: P.O. Box 40929, Olympia, Washington 98504-0929, or supreme@courts.wa.gov. Comments submitted by e-mail message must be limited to 1500 words.
dated at Olympia, Washington this 4th day of December, 2019.
| For the Court |
| |
| Fairhurst, C.J. |
| chief justice |
GR 9 COVER SHEET
Suggested Amendment
Standard 14.1 of the Standards for Indigent Defense, the Mental Proceedings Rules (MPR), and the Standards Certification of Compliance for CrR 3.1, CrRLJ 3.1 and JuCR 9.2
Submitted by the Board of Governors of the Washington State Bar Association
A. Name of Proponent:
Washington State Bar Association
B. Spokespersons:
William Pickett, President, Washington State Bar Association, 1325 Fourth Avenue, Suite 600, Seattle, WA 98101-2539 (telephone 509-972-1825)
Daryl Rodrigues, Chair, Council on Public Defense, Washington State Bar Association, Seattle, WA 98101-2539 (telephone 360-701-0306)
Diana Singleton, Access to Justice Manager, Washington State Bar Association, 1325 Fourth Avenue, Suite 600, Seattle, WA 98101-2539 (telephone 206-727-8205)
C. Purpose:
The Standards for Indigent Defense Services adopted by the Washington Supreme Court set a caseload limit for appointed counsel representing clients in criminal cases and for appointed counsel representing clients in civil commitment proceedings. The Standards also require appointed counsel in criminal cases: 1) to be familiar with the Performance Guidelines for Criminal Defense Representation and the Performance Guidelines for Juvenile Defense Representation approved by the Washington State Bar Association; and 2) to file quarterly Certifications that they are in compliance with the caseload limits included in the Standards.
Counsel appointed in the more than 10,000 civil commitment petitions filed each year have no uniform guidance for client representation and routinely do not file Certifications of Compliance. To address this gap, the Council formed a Mental Health Committee, which in early 2017 began drafting Performance Guidelines for Attorneys Representing Respondents in Civil Commitment Proceedings (Guidelines). The first draft was circulated for comment on the Washington Defender Association (WDA) civil commitment practitioners' listserv. The Committee revised and circulated the Guidelines twice more in light of the feedback.
A close to final version of the Guidelines was sent, with a request for comment, in advance of the Council's September 2018 meeting to the Washington State Association of Counties, the Gender and Justice Commission and the Minority and Justice Commission, Disability Rights Washington and the National Alliance for the Mentally Ill (NAMI) Greater Seattle chapter.
The Council approved the Guidelines by a supermajority at its October 5, 2018 meeting. They were given a first reading at the November 2018 Board of Governors meeting and circulated again for comments. At their second reading in January 2019, the Board of Governors voted unanimously to recommend the Supreme Court: 1) add the Guidelines to the Standards; 2) include the Standards in the Mental Proceedings Rules; and 3) require appointed counsel representing clients in civil commitment proceedings file Certifications of Compliance as is now required of appointed counsel in criminal cases.
Specifically, the first recommendation is that the Court add the proposed Performance Guidelines for Attorneys Representing Respondents in Civil Commitment Proceedings to Standard 14.1 of the Standards for Indigent Defense and modify the language of Standard 14.1(D) as follows:
Be familiar with the Performance Guidelines for Criminal Defense Representation approved by the Washington State Bar Association and, when representing youth, be familiar with the Performance Guidelines for Juvenile Defense Representation approved by the Washington State Bar Association when representing respondents in civil commitment proceedings, be familiar with the Performance Guidelines for Attorneys Representing Respondents in Civil Commitment Proceedings approved by the Washington State Bar Association; and
The second recommendation is that the Court include the Standards in the Mental Proceedings Rules (newly proposed MPR 2.1) and require appointed counsel representing clients in civil commitment proceedings to file Certifications of Compliance, as is already required of appointed counsel in criminal cases.
For consistency, the newly proposed Standards in MPR 2.1 are also being proposed for inclusion in the Standards in CrR 3.1, CrRLJ 3.1, and JuCR 9.2.
D. Hearing:
A hearing is not recommended.
E. Expedited Consideration:
Expedited consideration is respectfully requested. The Council worked with numerous stakeholders for 18 months to develop Guidelines for representation of some of Washington's most vulnerable residents in civil commitment proceedings.
F. Supporting Material:
Suggested rule amendments and Performance Guidelines for Attorneys Representing Respondents in Civil Commitment Proceedings.
SUGGESTED AMENDMENT
STANDARDS FOR INDIGENT DEFENSE (SID)
CrR 3.1
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/MPR 2.1 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 Wn.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 local 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.
[Adopted effective October 1, 2012. Amended effective _______.]
SUGGESTED AMENDMENT
STANDARDS FOR INDIGENT DEFENSE (SID)
CrR 3.1
STANDARD 14.1
Unchanged.
(A) - (C) Unchanged.
D. Be familiar with the Performance Guidelines for Criminal Defense Representation approved by the Washington State Bar Association;and, when representing youth, be familiar with the Performance Guidelines for Juvenile Defense Representation approved by the Washington State Bar Association; and when representing respondents in civil commitment proceedings, be familiar with the Performance Guidelines for Attorneys Representing Respondents in Civil Commitment Proceedings approved by the Washington State Bar Association; and
(E) - (G) Unchanged.
SUGGESTED AMENDMENT
STANDARDS FOR INDIGENT DEFENSE (SID)
CrR 3.1
CERTIFICATION OF COMPLIANCE
For criminal and juvenile offender cases, and civil commitment proceedings under RCW 71.05, a signed Certification of Compliance with Applicable Standards must be filed by an appointed attorney by separate written certification on a quarterly basis in each court in which the attorney has been appointed as counsel.
The certification must be in substantially the following form:
SEPARATE CERTIFICATION FORM
_____Court ofWashington for _____ | [ ] No.: _____ |
State of Washington _____, | |
Plaintiff vs. | CERTIFICATION OF APPOINTED COUNSEL OF COMPLIANCE WITH STANDARDS REQUIRED BY CrR 3.1/CrRLJ 3.1/JuCR 9.2/MPR 2.1 |
_____, Defendant |
The undersigned attorney hereby certifies:
1. Approximately _____% of my total practice time is devoted to indigent defense cases.
2. I am familiar with the applicable Standards adopted by the Supreme Court for attorneys appointed to represent indigent persons and that:
a. Basic Qualifications: I meet the minimum basic professional qualifications in Standard 14.1.
b. Office: I have access to an office that accommodates confidential meetings with clients, and I have a postal address and adequate telephone services to ensure prompt response to client contact, incompliance with Standard 5.2.
c. Investigators: I have investigators available to me and will use investigative services as appropriate, in compliance with Standard 6.1.
d. Caseload: I will comply with Standard 3.2 during representation of the defendant in my cases. [Effective October 1, 2013 for felony and juvenile offender caseloads; effective January 1, 2015 for misdemeanor caseloads; effective ______ for civil commitment caseloads.; I should not accept a greater number of cases (or a proportional mix of different case types) than specified in Standard 3.4, prorated if the amount of time spent for indigent defense is less than full time, and taking into account the case counting and weighting system applicable in my jurisdiction.]
e. Specific Qualifications: I am familiar with the specific case qualifications in Standard 14.2, Sections B-K (criminal) and Section M (civil commitment) and will not accept appointment in a case as lead counsel unless I meet the qualifications for that case. [Effective October 1, 2013; effective ____ for civil commitment cases]
_____ Signature, WSBA# | _____ Date |
CERTIFICATION OF APPOINTED COUNSEL OF COMPLIANCE WITH STANDARDS REQUIRED BY CrR 3.1/CrRLJ 3.2/JuCR 9.2/MPR 2.1
[Adopted effective October 1, 2012. Amended Effective September 1, 2013; September 17, 2013; October 1, 2013; __________.]
SUGGESTED AMENDMENT
STANDARDS FOR INDIGENT DEFENSE (SID)
CrRLJ 3.1
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/MPR 2.1 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 Wn.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 local 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.
[Adopted effective October 1, 2012. Amended effective _______.]
SUGGESTED AMENDMENT
STANDARDS FOR INDIGENT DEFENSE (SID)
CrRLJ 3.1
STANDARD 14.1
Unchanged.
(A) - (C) Unchanged.
D. Be familiar with the Performance Guidelines for Criminal Defense Representation approved by the Washington State Bar Association;and, when representing youth, be familiar with the Performance Guidelines for Juvenile Defense Representation approved by the Washington State Bar Association; and when representing respondents in civil commitment proceedings, be familiar with the Performance Guidelines for Attorneys Representing Respondents in Civil Commitment Proceedings approved by the Washington State Bar Association; and
(E) - (G) Unchanged.
SUGGESTED AMENDMENT
STANDARDS FOR INDIGENT DEFENSE (SID)
CrRLJ 3.1
CERTIFICATION OF COMPLIANCE
For criminal and juvenile offender cases, and mental health proceedings under RCW 71.05, a signed Certification of Compliance with Applicable Standards must be filed by an appointed attorney by separate written certification on a quarterly basis in each court in which the attorney has been appointed as counsel.
The certification must be in substantially the following form:
SEPARATE CERTIFICATION FORM
_____Court ofWashington for _____ | [ ] No.:_____ |
State of Washington _____, | |
Plaintiff vs. | CERTIFICATION OF APPOINTED COUNSEL OF COMPLIANCE WITH STANDARDS REQUIRED BY CrR 3.1/CrRLJ 3.1/JuCR 9.2/MPR 2.1 |
_____, Defendant |
The undersigned attorney hereby certifies:
1. Approximately _____% of my total practice time is devoted to indigent defense cases.
2. I am familiar with the applicable Standards adopted by the Supreme Court for attorneys appointed to represent indigent persons and that:
a. Basic Qualifications: I meet the minimum basic professional qualifications in Standard 14.1.
b. Office: I have access to an office that accommodates confidential meetings with clients, and I have a postal address and adequate telephone services to ensure prompt response to client contact, in compliance with Standard 5.2.
c. Investigators: I have investigators available to me and will use investigative services as appropriate, in compliance with Standard 6.1.
d. Caseload: I will comply with Standard 3.2 during representation of the defendant in my cases. [Effective October 1, 2013 for felony and juvenile offender caseloads; effective January 1, 2015 for misdemeanor caseloads: I should not accept a greater number of cases (or a proportional mix of different case types) than specified in Standard 3.4, prorated if the amount of time spent for indigent defense is less than full time, and taking into account the case counting and weighting system applicable in my jurisdiction.]
e. Specific Qualifications: I am familiar with the specific case qualifications in Standard 14.2, Sections B-K and will not accept appointment in a case as lead counsel unless I meet the qualifications for that case. [Effective October 1, 2013]
_____ Signature, WSBA# | _____ Date |
CERTIFICATION OF APPOINTED COUNSEL OF COMPLIANCE WITH STANDARDS REQUIRED BY CrR 3.1/CrRLJ 3.2/JuCR 9.2/MPR 2.1
[Adopted effective October 1, 2012. Amended Effective September 1, 2013; September 17, 2013; October 1, 2013.]
SUGGESTED AMENDMENT
STANDARDS FOR INDIGENT DEFENSE (SID)
JuCR 9.2
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/MPR 2.1 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 Wn.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 local 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.
[Adopted effective October 1, 2012. Amended effective _______.]
SUGGESTED AMENDMENT
STANDARDS FOR INDIGENT DEFENSE (SID)
JuCR 9.2
STANDARD 14.1
Unchanged.
(A) - (C) Unchanged.
D. Be familiar with the Performance Guidelines for Criminal Defense Representation approved by the Washington State Bar Association;and, when representing youth, be familiar with the Performance Guidelines for Juvenile Defense Representation approved by the Washington State Bar Association; and when representing respondents in civil commitment proceedings, be familiar with the Performance Guidelines for Attorneys Representing Respondents in Civil Commitment Proceedings approved by the Washington State Bar Association; and
(E) - (G) Unchanged.
SUGGESTED AMENDMENT
STANDARDS FOR INDIGENT DEFENSE (SID)
JuCR 9.2
CERTIFICATION OF COMPLIANCE
For criminal and juvenile offender cases, and mental health proceedings under RCW 71.05, a signed Certification of Compliance with Applicable Standards must be filed by an appointed attorney by separate written certification on a quarterly basis in each court in which the attorney has been appointed as counsel.
The certification must be in substantially the following form:
SEPARATE CERTIFICATION FORM
_____Court ofWashington for _____ | [ ] No.: _____ |
State of Washington _____, | |
Plaintiff vs. | CERTIFICATION OF APPOINTED COUNSEL OF COMPLIANCE WITH STANDARDS REQUIRED BY CrR 3.1/CrRLJ 3.1/JuCR 9.2/MPR 2.1 |
_____, Defendant |
The undersigned attorney hereby certifies:
1. Approximately _____% of my total practice time is devoted to indigent defense cases.
2. I am familiar with the applicable Standards adopted by the Supreme Court for attorneys appointed to represent indigent persons and that:
a. Basic Qualifications: I meet the minimum basic professional qualifications in Standard 14.1.
b. Office: I have access to an office that accommodates confidential meetings with clients, and I have a postal address and adequate telephone services to ensure prompt response to client contact, in compliance with Standard 5.2.
c. Investigators: I have investigators available to me and will use investigative services as appropriate, in compliance with Standard 6.1.
d. Caseload: I will comply with Standard 3.2 during representation of the defendant in my cases. [Effective October 1, 2013 for felony and juvenile offender caseloads; effective January 1, 2015 for misdemeanor caseloads: I should not accept a greater number of cases (or a proportional mix of different case types) than specified in Standard 3.4, prorated if the amount of time spent for indigent defense is less than full time, and taking into account the case counting and weighting system applicable in my jurisdiction.]
e. Specific Qualifications: I am familiar with the specific case qualifications in Standard 14.2, Sections B-K and will not accept appointment in a case as lead counsel unless I meet the qualifications for that case. [Effective October 1, 2013]
_____ Signature, WSBA# | _____ Date |
CERTIFICATION OF APPOINTED COUNSEL OF COMPLIANCE WITH STANDARDS REQUIRED BY CrR 3.1/CrRLJ 3.2/JuCR 9.2/MPR 2.1
[Adopted effective October 1, 2012. Amended Effective September 1, 2013; September 17, 2013; October 1, 2013.]
SUPERIOR COURT
MENTAL PROCEEDINGS RULES (MPR)
TABLE OF RULES
1. GENERAL
Unchanged.
2. PROCEEDINGS FOR INITIAL DETENTION
2.1 Summons
Standards for Indigent Defense (SID)
2.2 Authorization and Notice of Detention
2.2A Notice of Emergency Detention
2.3 Right To Copy Court Files
2.4 Probable Cause Hearing
2.5 Rescinded
3. PROCEEDINGS FOR NINETY OR ONE HUNDRED
EIGHTY-DAY COMMITMENT
Unchanged.
4. PROCEEDINGS FOR CONDITIONAL RELEASE AND
REVOCATION OR MODIFICATION
Unchanged.
5. VENUE
Unchanged.
6. PETITIONS
Unchanged.
Table of Rules
SID
Standard 1. Compensation [Reserved]
Standard 2. Duties and Responsibilities of Counsel [Reserved]
Standard 3. Caseload Limits and Types of Cases
3.1
3.2
3.3 General Considerations.
3.4 Caseload Limits.
3.5 Case Counting and Weighting
3.6 Case Weighting Examples
Standard 4. Responsibility of Expert Witness [Reserved]
Standard 5. Administrative Costs
5.1 [Reserved]
5.2
Standard 6. Investigators
6.1
Standards 7 to 12. [Reserved]
Standards 13. Limitations on Private Practice
13 Limitations to Private Practice
Standard 14. Qualifications of Attorney
14.1
14.2 Attorneys' Qualifications According to Severity or Type of Case
14.3 Appellate Representation
14.4 Legal Interns
Standards 15 to 18. [Reserved]
Certificate of Compliance
---___________
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/MPR 2.1 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 Wn.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 local 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.
[Adopted effective October 1, 2012. Amended Effective_______.]
STANDARD 1. COMPENSATION
[RESERVED.]
STANDARD 2. DUTIES AND RESPONSIBILITIES OF COUNSEL
[RESERVED.]
STANDARD 3. CASELOAD LIMITS AND TYPES OF CASES
STANDARD 3.1. The contract or other employment agreement shall specify the types of cases for which representation shall be provided and the maximum number of cases which each attorney shall be expected to handle.
[Adopted effective October 1, 2012.]
STANDARD 3.2. The caseload of public defense attorneys shall allow each lawyer to give each client the time and effort necessary to ensure effective representation. Neither defender organizations, county offices, contract attorneys, nor assigned counsel should accept workloads that, by reason of their excessive size, interfere with the rendering of quality representation. As used in this Standard, "quality representation" is intended to describe the minimum level of attention, care, and skill that Washington citizens would expect of their state's criminal justice system.
[Adopted effective October 1, 2012.]
STANDARD 3.3. 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 limits. The maximum caseload limit should be adjusted downward when the mix of case assignments is weighted toward offenses or case types that demand more investigation, legal research and writing, use of experts, use of social workers, or other expenditures of time and resources. Attorney caseloads should be assessed by the workload required, and 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.
The experience of a particular attorney is a factor in the composition of the case types in the attorney's caseload, but it is not a factor in adjusting the applicable numerical caseload limits except as follows: attorneys with less than six months of full time criminal defense experience as an attorney should not be assigned more than two-thirds of the applicable maximum numerical caseload limit. This provision applies whether or not the public defense system uses case weighting.
The following types of cases fall within the intended scope of the caseload limits for criminal and juvenile offender cases in standard 3.4 and must be taken into account when assessing an attorney's numerical caseload: partial case representations, sentence violations, specialty or therapeutic courts, transfers, extraditions, representation of material witnesses, petitions for conditional release or final discharge, and other matters that do not involve a new criminal charge.
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. In courts of limited jurisdiction multiple citations from the same incident can be counted as one case.
[Adopted effective October 1, 2012; amended effective January 1, 2015.]
STANDARD 3.4. CASELOAD LIMITS. The caseload of a full-time public defense attorney or assigned counsel should not exceed the following:
150 felonies per attorney per year; or
300 misdemeanor cases per attorney per year or, in jurisdictions that have not adopted a numerical case weighting system as described in this standard, 400 cases per year; or
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.)
Full-time rule 9 interns who have not graduated from law school may not have caseloads that exceed twenty-five percent (25%) of the caseload limits established for full-time attorneys.
In public defense systems in which attorneys are assigned to represent groups of clients at first appearance or arraignment calendars without an expectation of further or continuing representation for cases that are not resolved at the time (except by dismissal) in addition to individual case assignments, the attorneys' maximum caseloads should be reduced proportionally recognizing that preparing for and appearing at such calendars requires additional attorney time. This provision applies both to systems that employ case weighting and those that do not.
Resolutions of cases by pleas of guilty to criminal charges on a first appearance or arraignment docket are presumed to be rare occurrences requiring careful evaluation of the evidence and the law, as well as thorough communication with clients, and must be counted as one case. This provision applies both to systems that employ case weighting and those that do not.
In public defense systems in which attorneys are assigned to represent groups of clients in routine review hearing calendars in which there is no potential for the imposition of sanctions, the attorneys' maximum caseloads should be reduced proportionally by the amount of time they spend preparing for and appearing at such calendars. This provision applies whether or not the public defense system uses case weighting.
[Adopted effective October 1, 2013, except paragraph 3, regarding misdemeanor caseload limits, effective January 1, 2015; amended effective January 1, 2015.]
STANDARD 3.5. CASE COUNTING AND WEIGHTING. Attorneys may not count cases using a case weighting system, unless pursuant to written policies and procedures that have been adopted and published by the local government entity responsible for employing, contracting with, or appointing them. A weighting system must:
A. recognize the greater or lesser workload required for cases compared to an average case based on a method that adequately assesses and documents the workload involved;
B. be consistent with these Standards, professional performance guidelines, and the Rules of Professional Conduct;
C. not institutionalize systems or practices that fail to allow adequate attorney time for quality representation;
D. be periodically reviewed and updated to reflect current workloads; and
E. be filed with the State of Washington Office of Public Defense.
Cases should be assessed by the workload required. Cases and types of cases should be weighted accordingly. Cases which are complex, serious, or contribute more significantly to attorney workload than average cases should be weighted upward. In addition, a case weighting system should consider factors that might justify a case weight of less than one case.
[Adopted effective October 1, 2012; amended effective January 1, 2015.]
STANDARD 3.6. CASE WEIGHTING EXAMPLES. The following are some examples of situations where case weighting might result in representations being weighted as more or less than one case. The listing of specific examples is not intended to suggest or imply that representations in such situations should or must be weighted at more or less than one case, only that they may be, if established by an appropriately adopted case weighting system.
A. Case Weighting Upward. Serious offenses or complex cases that demand more-than-average investigation, legal research, writing, use of experts, use of social workers, and/or expenditures of time and resources should be weighted upward and counted as more than one case.
B. Case Weighting Downward. Listed below are some examples of situations where case weighting might justify representations being weighted less than one case. However, care must be taken because many such representations routinely involve significant work and effort and should be weighted at a full case or more.
i. Cases that result in partial representations of clients, including client failures to appear and recommencement of proceedings, preliminary appointments in cases in which no charges are filed, appearances of retained counsel, withdrawals or transfers for any reason, or limited appearances for a specific purpose (not including representations of multiple cases on routine dockets).
ii. Cases in the criminal or offender case type that do not involve filing of new criminal charges, including sentence violations, extraditions, representations of material witnesses, and other matters or representations of clients that do not involve new criminal charges. Noncomplex sentence violations should be weighted as at least 1/3 of a case.
iii. Cases in specialty or therapeutic courts if the attorney is not responsible for defending the client against the underlying charges before or after the client's participation in the specialty or therapeutic court. However, case weighting must recognize that numerous hearings and extended monitoring of client cases in such courts significantly contribute to attorney workload and in many instances such cases may warrant allocation of full case weight or more.
iv. Representation of a person in a court of limited jurisdiction on a charge which, as a matter of regular practice in the court where the case is pending, can be and is resolved at an early stage of the proceeding by a diversion, reduction to an infraction, stipulation on continuance, or other alternative noncriminal disposition that does not involve a finding of guilt. Such cases should be weighted as at least 1/3 of a case.
[Adopted effective October 1, 2012; amended effective January 1, 2015.]
Related Standards
ABA Standards for Criminal Justice: Prosecution Function and Defense Function Defense Function std. 4-1.2 (3d ed. 1993)
ABA Standards for Criminal Justice: Providing Defense Services std. 5-4.3 (3d ed. 1992)
Am. Bar Ass'n, Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases (rev. ed. 2003)
ABA Comm. on Ethics & Prof'l Responsibility, Formal Op. 06-441 (2006) (Ethical Obligations of Lawyers Who Represent Indigent Criminal Defendants When Excessive Caseloads Interfere With Competent and Diligent Representation)
Am. Council of Chief Defenders, Statement on Caseloads and Workloads (Aug. 24, 2007)
ABA House of Delegates, Eight Guidelines of Public Defense Related to Excessive Caseloads (Aug. 2009)
Task Force on Courts, Nat'l Advisory Comm'n on Criminal Standards & Goals, Courts std. 13.12 (1973)
Model Code of Prof'l Responsibility DR 6-101.
ABA House of Delegates, The Ten Principles of a Public Defense Delivery System (Feb. 2002)
ABA House of Delegates, Standards of Practice for Lawyers Who Represent Children in Abuse and Neglect Cases (Feb. 1996)
Nat'l Legal Aid & Defender Ass'n, Am. Council of Chief Defenders, Ethical Opinion 03-01 (2003).
Nat'l Legal Aid & Defender Ass'n, Standards for Defender Services std. IV-1 (1976)
Nat'l Legal Aid & Defender Ass'n, Model Contract for Public DefenseServices (2000)
Nat'l Ass'n of Counsel for Children, NACC Recommendations for Representation of Children in Abuse and Neglect Cases (2001)
Seattle Ordinance 121501 (June 14, 2004)
Indigent Defense Servs. Task Force, Seattle-King County Bar Ass'n, Guidelines for Accreditation of Defender Agencies Guideline 1 (1982)
Wash. State Office of Pub. Defense, Parents Representation Program Standards of Representation (2009)
Bureau of Judicial Assistance, U.S. Dep't of Justice, Indigent Defense Series No. 4, Keeping Defender Workloads Manageable (2001) (NCJ 185632)
STANDARD 4. RESPONSIBILITY OF EXPERT WITNESSES
[RESERVED.]
STANDARD 5. ADMINISTRATIVE COSTS
STANDARD 5.1. [RESERVED.]
STANDARD 5.2.
A. Contracts for public defense services should provide for or include administrative costs associated with providing legal representation. These costs should include but are not limited to travel; telephones; law library, including electronic legal research; financial accounting; case management systems; computers and software; office space and supplies; training; meeting the reporting requirements imposed by these standards; and other costs necessarily incurred in the day-to-day management of the contract.
B. Public defense attorneys shall have (1) access to an office that accommodates confidential meetings with clients and (2) a postal address, and adequate telephone services to ensure prompt response to client contact.
[Adopted effective October 1, 2012.]
STANDARD 6. INVESTIGATORS
STANDARD 6.1. Public defense attorneys shall use investigation services as appropriate.
[Adopted effective October 1, 2012.]
STANDARDS 7-12
[RESERVED.]
STANDARD 13. LIMITATIONS ON PRIVATE PRACTICE
Private attorneys who provide public defense representation shall set limits on the amount of privately retained work which can be accepted. These limits shall be based on the percentage of a full-time caseload which the public defense cases represent.
[Adopted effective October 1, 2012.]
STANDARD 14. QUALIFICATIONS OF ATTORNEYS
STANDARD 14.1. 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 when representing youth, be familiar with the Performance Guidelines for Juvenile Defense Representation approved by the Washington State Bar Association; and, when representing respondents in civil commitment proceedings, be familiar with the Performance Guidelines for Attorneys Representing Respondents in Civil Commitment Proceedings approved by the Washington State Bar Association.
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.
[Adopted effective October 1, 2012; amended effective April 24, 2018.]
STANDARD 14.2. ATTORNEYS' QUALIFICATIONS ACCORDING TO SEVERITY OR TYPE OF CASE1:
A. Death Penalty Representation. Each attorney acting as lead counsel in a criminal case in which the death penalty has been or may be decreed and 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 aggravated homicide case; 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
1 | Attorneys working toward qualification for a particular category of cases under this standard may associate with lead counsel who is qualified under this standard for that category of cases. |
vii. Meet the requirements of SPRC2.2
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 counsel and handled a significant portion of the trial in three felony cases that have been submitted to a jury.
2 | SPRC 2 APPOINTMENT OF COUNSEL At least two lawyers shall be appointed for the trial and also for the direct appeal. The trial court shall retain responsibility for appointing counsel for trial. The Supreme Court shall appoint counsel for the direct appeal. Notwithstanding RAP 15.2(f) and (h), the Supreme Court will determine all motions to withdraw as counsel on appeal. A list of attorneys who meet the requirements of proficiency and experience, and who have demonstrated that they are learned in the law of capital punishment by virtue of training or experience, and thus are qualified for appointment in death penalty trials and for appeals will be recruited and maintained by a panel created by the Supreme Court. All counsel for trial and appeal must have demonstrated the proficiency and commitment to quality representation which is appropriate to a capital case. Both counsel at trial must have five years' experience in the practice of criminal law (and) be familiar with and experienced in the utilization of expert witnesses and evidence, and not be presently serving as appointed counsel in another active trial level death penalty case. One counsel must be, and both may be, qualified for appointment in capital trials on the list, unless circumstances exist such that it is in the defendant's interest to appoint otherwise qualified counsel learned in the law of capital punishment by virtue of training or experience. The trial court shall make findings of fact if good cause is found for not appointing list counsel. At least one counsel on appeal must have three years' experience in the field of criminal appellate law and be learned in the law of capital punishment by virtue of training or experience. In appointing counsel on appeal, the Supreme Court will consider the list, but will have the final discretion in the appointment of counsel. |
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 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 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. Has 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's 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:
3 | RCW 10.101.060 (1)(a)(iii) provides that counties receiving funding from the state Office of Public Defense under that statute must require "attorneys who handle the most serious cases to meet specified qualifications as set forth in the Washington state bar association endorsed standards for public defense services or participate in at least one case consultation per case with office of public defense resource attorneys who are so qualified. The most serious cases include all cases of murder in the first or second degree, persistent offender cases, and class A felonies." |
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 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. Has 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's experience as a felony defense attorney or one year's 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 case should meet the minimum requirements in Section 1 and have either one year's 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.
[Adopted effective October 1, 2012.]
Standard 14.3. 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 a RALJ appeal.
[Adopted effective October 1, 2012.]
STANDARD 14.4. 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.
[Adopted effective October 1, 2012.]
STANDARDS 15-18
[RESERVED]
CERTIFICATION OF COMPLIANCE
For criminal and juvenile offender cases, and civil commitment proceedings under RCW 71.05, a signed Certification of Compliance with Applicable Standards must be filed by an appointed attorney by separate written certification on a quarterly basis in each court in which the attorney has been appointed as counsel.
The certification must be in substantially the following form:
SEPARATE CERTIFICATION FORM
_____Court ofWashington for _____ | [ ] No.:_____ |
State of Washington _____, | |
Plaintiff vs. | CERTIFICATION OF APPOINTED COUNSEL OF COMPLIANCE WITH STANDARDS REQUIRED BY CrR 3.1/CrRLJ 3.1/JuCR 9.2/MPR 2.1 |
_____, Defendant |
The undersigned attorney hereby certifies:
1. Approximately _____% of my total practice time is devoted to indigent defense cases.
2. I am familiar with the applicable Standards adopted by the Supreme Court for attorneys appointed to represent indigent persons and that:
a. Basic Qualifications: I meet the minimum basic professional qualifications in Standard 14.1.
b. Office: I have access to an office that accommodates confidential meetings with clients, and I have a postal address and adequate telephone services to ensure prompt response to client contact, in compliance with Standard 5.2.
c. Investigators: I have investigators available to me and will use investigative services as appropriate, in compliance with Standard 6.1.
d. Caseload: I will comply with Standard 3.2 during representation of the defendant in my cases. [Effective October 1, 2013 for felony and juvenile offender caseloads; effective January 1, 2015 for misdemeanor caseloads; effective _____ for civil commitment caseloads. I should not accept a greater number of cases (or a proportional mix of different case types) than specified in Standard 3.4, prorated if the amount of time spent for indigent defense is less than full time, and taking into account the case counting and weighting system applicable in my jurisdiction.]
e. Specific Qualifications: I am familiar with the specific case qualifications in Standard 14.2, Sections B-K (criminal) and M (civil commitment proceedings) and will not accept appointment in a case as lead counsel unless I meet the qualifications for that case. [Effective October 1, 2013. Effective _____ for civil commitment cases.]
_____ Signature, WSBA# | _____ Date |
CERTIFICATION OF APPOINTED COUNSEL OF COMPLIANCE WITH STANDARDS
REQUIRED BY CrR 3.1/CrRLJ 3.2/JuCR 9.2/MPR 2.1
[Adopted effective October 1, 2012. Amended Effective September 1, 2013; September 17, 2013; October 1, 2013.]
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.