Seattle Municipal Court

City of Seattle Seattle Municipal Court Conflict Attorney Panel Policy Approved as of 12/08/09

Table of Contents I. PURPOSE... 4 II. CONFLICT ATTORNEY PANEL... 4 A. Provided by the.... 4 B. Northwest Defenders Association.... 4 C. The Public Defense Program Manager.... 5 D. Conflict Attorney Panel Members Are Independent Contractors.... 5 III. CONFLICT ATTORNEY PANEL MEMBERS... 5 A. Qualifications... 5 B. Professional Standards... 5 C. Selection of Panel Members... 6 D. Removal of Panel Members... 6 E. Training and Continuing Legal Education... 6 F. Complaints and Discipline... 6 G. Case Assignments... 7 H. Case Management... 7 I. Withdrawing From an Assigned Case... 7 J. Communicating With Clients... 8 K. Communicating With the Court and the Coordinator... 8 L. Defendant s Eligibility for CAP Attorney Representation... 8 M. Case Preparation and Services Other Than Attorney... 9 N. Case Coverage and Assistance... 9 IV. CONFLICT ATTORNEY PANEL COORDINATOR.... 9 A. Recruit, Interview and Train Panel Members... 9 B. Administer Assignment of Conflict Cases... 10 V. OVERSIGHT COMMITTEE OMBUDSPERSON... 10 VI. CONTACT INFORMATION... 10 Conflict Attorney Panel Policy Page 2

Conflict Attorney Panel Policy Page 3

Conflict Attorney Panel Policy I. PURPOSE The conflict case assignment policy is based upon the applicable STANDARDS FOR PUBLIC DEFENSE SERVICES as adopted on September 21, 2007 by the Washington State Bar Association. The City recognizes the need for a vigorous Conflict Attorney Panel. The policy for the Conflict Attorney Panel, and assignment of cases to Conflict Attorney Panel members, ensures defendants in receive competent, ethical and zealous representation by private attorneys assigned, by authority of the Court, to eligible defendants when a conflict of interest prevents the City public defender agencies from providing representation. II. CONFLICT ATTORNEY PANEL A. Provided by the. The is required to provide an attorney for an eligible defendant when a conflict of interest prevents the City public defender agencies from providing representation. The City hereby establishes The Conflict Attorney Panel (CAP), a panel of lawyers from the private bar, paid by the City, to provide that representation. The court delegates final approval for membership on the panel to the Conflict Attorney Oversight Committee. The Oversight Committee is authorized to oversee the actions of the panel. The Oversight Committee may delegate supervision to an ombudsperson who will be supervised by the Committee. B. Northwest Defenders Association. Northwest Defenders Association shall act as Coordinator of the CAP. The Coordinator will recruit attorneys for the panel, organize training offered free of charge to panel attorneys and submit the names of attorneys eligible for the panel to the Court for approval. The CAP Coordinator administers the assignment of eligible cases to members of the Conflict Attorney Panel. NDA is unable to represent clients assigned to CAP members because NDA has a conflict of interest. The Coordinator will not provide specific legal advice to CAP attorneys on cases assigned by the Coordinator. Regarding assigned cases the Coordinator s role is limited, consistent with the Rules of Professional Conduct, to facilitating communication with the assigned CAP attorney. The eligibility of any defendant to be represented by a panel attorney is determined by a judge, the Court Conflicts Coordinator or the Seattle Conflict Attorney Panel Policy Page 4

Municipal Court Indigent Defense Services. The CAP Coordinator, with approval from the Oversight Committee, may recommend and implement policy changes. C. The Public Defense Program Manager. The Office of Policy and Management (OPM) administers all financial arrangements for CAP members. Appointed CAP members may not require, request, or accept any payment or promise of payment, or any other valuable consideration, for representation under CAP appointment, unless such payment is approved by order of the court, CrRLJ 3.1(f). D. Conflict Attorney Panel Members Are Independent Contractors. III. CONFLICT ATTORNEY PANEL MEMBERS A. Qualifications. Panel members shall be a member in good standing with the WSBA; shall demonstrate knowledge and familiarity with the Washington State statutes and Seattle ordinances, Supreme Court and local court rules, constitutional provisions, and case law relevant to the practice area; be familiar with the direct and collateral consequences of a conviction, including possible immigration consequences; be familiar with mental health issues; be able to identify and obtain appropriate expert services; and be able to perform basic legal research. For Misdemeanor Appeals to Superior Court (RALJ), Panel members representing clients on appeal shall demonstrate one or more of the following: knowledge, training or experience in criminal appeals, criminal motions practice, trial-level briefing or clerking for an appellate judge; assisting a more experienced attorney in preparing and arguing a RALJ appeal; completed training on appellate practice provided by CAP Coordinator or other approved course. Panel members shall demonstrate the general qualifications as above; and knowledge of mental health and substance abuse issues and treatment alternatives; and knowledge of SMC local rules and procedures. A Legal intern may appear with a defendant, but must meet the requirements set out in APR 9, must attend training provided by the CAP Coordinator and Work under the supervision of a CAP member. A coverage attorney must meet the same qualifications as the assigned CAP attorney. B. Professional Standards. CAP members shall provide services to all clients in a professional, skilled manner consistent with minimum standards set forth by the Washington State Bar Association Rules of Professional Conduct, applicable court rules and case law defining the duties of counsel and the rights of defendants in criminal cases. The primary and most fundamental responsibility of a panel member is to provide vigorous and effective representation as required by the State and Federal Constitutions and the Rules of Professional Conduct. CAP members shall timely pay WSBA dues and comply with WSBA CLE reporting requirements. CAP members shall maintain Conflict Attorney Panel Policy Page 5

adequate Professional Liability Insurance. Required insurance coverage limits are set by the Office of Policy and Management. A certificate of coverage should be submitted at time of application. C. Selection of Panel Members. The CAP Coordinator shall forward completed applications to the Oversight Committee with recommendations for or against membership. The Oversight committee shall approve membership on the panel. The Coordinator will notify applicants whether the Committee has made an appointment to the panel. D. Removal of Panel Members. Panel members must meet the standards outlined in the CAP policy. The Oversight Committee can remove a CAP member from the panel for failing to meet the qualifications set out in the Conflict Attorney Panel Policy, and for any other reason. WSBA discipline resulting in disbarment or suspension shall result in automatic removal from the panel. A judicial finding of ineffective assistance of counsel may result in removal from the panel. E. Training and Continuing Legal Education. CAP members shall at all times be in good standing with WSBA CLE requirements. For each year of the CLE reporting period, CAP members shall obtain seven (7) hours of Continuing Legal Education related to criminal defense practice. CLE credit may be obtained at no cost by attending regular training programs presented by the CAP Coordinator. Members are expected to attend training programs provided by the Coordinator. Training requirements may be modified by the Oversight Committee. CAP members shall maintain current knowledge of the Seattle Municipal Code (SMC), the local rules of the (SMCLR), Rules of Courts of Limited Jurisdiction (CrRLJ), Rules on Appeal for Courts of Limited Jurisdiction (RALJ), the Evidence Rules (ER) and the substantive and procedural laws that apply to case types assigned to them. F. Complaints and Discipline. The Public Defense Program Manager will provide a convenient method for defendants represented by CAP members to voice complaints and concerns about representation by CAP members. CAP members shall immediately notify the CAP Coordinator when any court makes a finding the member provided ineffective representation. The Coordinator shall immediately notify the Oversight Committee. If the Washington State Bar Association gives a panel lawyer notice a complaint has been filed with WSBA, and a formal investigation has been commenced, the panel lawyer shall immediately notify the Coordinator. The Coordinator will keep a log of all reported complaints and notify the Oversight Committee of any formal investigation. CAP Conflict Attorney Panel Policy Page 6

members shall immediately notify the Coordinator when any sanction is imposed by the WSBA. CAP members removed from the panel shall comply with the Rules of Professional Conduct and Court Rules. The removed CAP lawyer shall comply with any order of the Court and cooperate in transferring information to any newly appointed attorney. The CAP Coordinator is required by SMC public defense policy to provide defendants assigned to CAP members information on how to express complaints and concerns. The Coordinator shall notify a panel lawyer of any complaint received by the Coordinator. The Coordinator will take no action on any complaint except as permitted by the Rules of Professional Conduct. Any complaint may be referred to the Oversight Committee. G. Case Assignments. The Coordinator shall attempt to contact CAP members regarding potential case assignments via telephone, email, or facsimile in an established rotational order. Assignments may be made out of rotational order by order of the court or at the CAP Coordinator s discretion as deemed necessary to accomplish timely case assignment. If a CAP member has repeatedly refused or is habitually unavailable to take case assignments, the Coordinator may refer the attorney to the Oversight Committee. H. Case Management. Panel members shall use care in the management of cases, calendaring and scheduling of appearances. CAP members are responsible for organization and management of case files and assigned cases. The Coordinator cannot give case-specific direction, guidance or advice. CAP members shall provide effective representation until a case is completed or a court has permitted the attorney to withdraw. The assigned CAP lawyer shall comply with the Rules of Professional Conduct regarding client records and files. When a represented client wants a review by the Superior Court, A CAP lawyer is expected to file any notice of appeal and assist in perfecting the record, consistent with the Rules on Appeal for Courts of Limited Jurisdiction (RALJ). CAP members shall follow case closing and billing procedures as provided by The Public Defense Program Manager (OPM). When a client fails to appear and a bench warrant is issued, CAP members shall keep the file open for 30 days following issuance of the bench warrant. If the client does not reappear within 30 days, the CAP lawyer should move the court to withdraw. If the court permits withdrawal, the CAP attorney shall notify the Coordinator and close the file. CAP lawyers shall submit billing for completed cases as directed by The Public Defense Program Manager (OPM). Billing and payment is done directly with OPM. The lawyers continuing responsibility on any case is determined by OPM requirements, Court Rule and the Rules of Professional Conduct. I. Withdrawing From an Assigned Case. CAP members unable to continue to represent an assigned case because of a conflict of interest or other reasons, shall immediately notify the CAP Coordinator. A case not set for trial will be reassigned by the Coordinator without judicial action when possible. When a case is set for Conflict Attorney Panel Policy Page 7

trial a CAP member must ask the court for permission to withdraw. A CAP attorney must continue to represent a client until a court approves withdrawal. When a privately retained lawyer seeks to substitute on a case assigned to a CAP lawyer, the CAP lawyer shall notify the Coordinator when the court has approved substitution of counsel. Whenever substitution of counsel occurs, CAP members shall cooperate in transferring all file material as ordered by the court, required by Court Rule and the Rules of Professional Conduct. J. Communicating With Clients. CAP Members shall make reasonable efforts to communicate with an assigned client and keep the client informed. CAP members shall fully prepare for all appearances. CAP members will make reasonable efforts to timely return phone calls and answer messages. CAP members will make reasonable effort to consult with clients at times and locations convenient to the client. CAP members shall provide clients with a reasonable means of contact, for example by phone, post, fax or email. CAP members shall make personal contact with an incustody client no later than the next business day following acceptance of assignment. CAP members shall make reasonable effort to make contact with an out-of-custody client no later than 5 business days following acceptance of assignment. CAP members shall make reasonable effort to meet in person and discuss the client s case in advance of any hearing. Waiting until the scheduled court appearance for initial contact should be avoided. CAP members may employ properly trained and supervised office staff to communicate with an assigned client. CAP members will make reasonable efforts to notify assigned clients in advance of any attorney-requested changes in scheduled appearance dates, or any reason the attorney is not available, and obtain advance consent to any appearance by a coverage attorney. K. Communicating With the Court and the Coordinator. CAP members shall establish and maintain a regular means of communicating with the Coordinator, the Court and with SMC assigned clients. CAP members shall notify the Coordinator of any change in regular contact information, including telephone number, fax number, physical address, or email address, within one (1) business days of the change. CAP lawyers shall give notice of any change in contact information to the Court and all necessary parties, as required by court order, court rule and Rules of Professional Conduct. L. Defendant s Eligibility for CAP Attorney Representation. Indigent Defense Services determines a defendant s financial eligibility for a court-appointed attorney. CAP members who are ordered by a judge to represent a defendant before eligibility screening occurs shall provide representation and ask, on the record, for an order of appointment. Lawyers appointed to a case from the bench, in the capacity of a CAP member, shall immediately notify the Coordinator. Conflict Attorney Panel Policy Page 8

M. Case Preparation and Services Other Than Attorney. CAP members shall make reasonable use of support services necessary to effective representation. These services include, but are not limited to, investigator, social worker, experts and others as determined by the CAP member. Payment of cost for services other than attorney is provided according to the procedures of The Public Defense Program Manager. CAP members shall be familiar with funding sources available from The Public Defense Program Manager and follow the payment request procedures required by The Public Defense Program Manager and the trial judge. N. Case Coverage and Assistance. CAP members shall make reasonable arrangements to have an attorney available to cover assigned cases when the member is not available (e.g. vacation, scheduling conflicts or illness). No new appointment will be made for coverage except under extraordinary circumstances. NDA, and the Coordinator, cannot provide case coverage. Coverage attorneys must be members of the Conflict Attorney Panel or meet the minimal qualifications of the CAP policy, including liability insurance. CAP members shall provide the name of any coverage attorney to the Coordinator, along with a statement of qualifications. If a Rule 9 intern is used the CAP lawyer must first provide the Coordinator with a statement that supervision is provided in compliance with WSBA requirements and CAP policy. CAP members cannot subcontract representation of assigned clients. IV. CONFLICT ATTORNEY PANEL COORDINATOR NDA and the conflict Attorney panel Coordinator have two primary duties with regard to the Conflict Attorney Panel: Recruit, Interview and Train panel members; and administer the assignment of cases to CAP lawyers. A. Recruit, Interview and Train Panel Members. The Conflict Attorney Panel Coordinator shall actively recruit attorneys in the Greater King County area to participate as members on the CAP. The Coordinator shall interview all applicants for panel membership. The Coordinator shall present all applications and results of the interviews to the Oversight Committee. Recruiting will be continuous. The Coordinator shall develop a regular program of legal education and training to support the professional development of panel members, to satisfy CAP policy standards and to provide a low cost means for CAP members to obtain necessary CLE credits. Training may also include approved courses conducted by the Washington Defenders Association relating to general criminal defense and defense of misdemeanor cases. Training programs will be conducted at the offices of Northwest Defenders Association and other appropriate locations within the discretion of the Coordinator. All CAP members are invited to attend any program presented by the Conflict Attorney Panel Policy Page 9

Coordinator at no cost. The Coordinator will apply for CLE credits from the WSBA for all presentations, trainings and programs. CAP training curriculum will focus on issues relevant to criminal defense practice in the and include broader subject matter as deemed appropriate for development and improvement of general criminal defense skills and representation of clients with mental health and substance abuse issues. Staff and attorneys from NDA and other offices may be invited to attend training programs. B. Administer Assignment of Conflict Cases. NDA will assign cases to CAP members when the three public defense agencies cannot provide representation. The Coordinator, or a designee, shall make reports to the Public Defense Program Manager as provided by the 2008 contract for legal services between NDA and the City of Seattle. V. OVERSIGHT COMMITTEE OMBUDSPERSON An Ombudsman appointed by the Oversight Committee will evaluate the performance of the Conflict Attorney Panel and assure effective representation is provided by CAP attorneys. The Ombudsperson will review compliance with CAP policy and evaluate the attorney's performance in court. The evaluations will be done as directed by the Oversight Committee. VI. CONTACT INFORMATION The following contact names and telephone numbers are provided in order to maximize efficiencies in case assignment and payment. Conflicts Coordinator - Northwest Defenders Association (NDA) 1109 1 st Avenue, Suite 300 Seattle, WA 98101 Spencer Hamlin, Coordinator of CAP Tel.: (206) 674 4700 ext. 3207 Fax: (206) 674 4702 spencer.hamlin@nwdefenders.org Juan F. Santillán, SMC Unit Paralegal Tel.: (206) 674 4700 ext. 3218 Fax: (206) 674 4702 juan.santillan@nwdefenders.org Conflict Attorney Panel Policy Page 10

Chief Clerk, Seattle Justice Center, Eleventh Floor 600 Fifth Avenue Seattle, WA 98124 Robert White, Chief Clerk Tel.: (206) 684 5682 robert.white@seattle.gov Public Defense Program Manager - Office of Policy and Management (OPM) 600 4 th Ave, 6 th Floor P.O. Box 94745 Seattle, WA 98124 Linda Taylor-Manning, Fiscal and Policy Advisor Tel.: (206) 684 8376 Fax: (206) 233 0085 linda.taylor-manning@seattle.gov Conflict Attorney Panel Policy Page 11