- What is the difference between (1) the Supreme Court's Standards for Indigent Defense; (2) the Washington State Bar Association Standards for Indigent Defense Services; and (3) the Washington State Bar Association Performance Guidelines for Criminal Defense Representation?
Criminal public defense representation is organized, administered and funded at the city and county level. Over the years, several guidance documents have been developed to ensure consistency in quality of public defense representation across the state.
The Supreme Court's Standards for Indigent Defense requires attorneys to certify to the courts that they comply with caseload limits, meet minimal case-level qualifications requirements, have access to an office, and use appropriate investigative services.
The Washington State Bar Association Standards for Indigent Defense Services provides a comprehensive guide to cities and counties for the administration of public defense services. Chapter 10.101.030 RCW requires each county and city to develop standards for the delivery of public defense services, and the WSBA Standards for Indigent Defense Services "should serve as guidelines to local legislative authorities in adopting standards."
The Washington State Bar Association Performance Guidelines for Criminal Defense Representation provide instruction on how to deliver effective public defense attorney representation at each stage of a criminal case.
- What are the Certification requirements?
Every attorney who is appointed to represent an indigent person in a felony, misdemeanor or juvenile offender action in a Washington trial court must certify on a quarterly basis that he/she meets the Standards for Indigent Defense. These Standards include caseload limits, experience qualifications, and resources.
- Which attorneys must certify to the Standards for Indigent Defense?
All attorneys appointed by trial courts to represent indigent persons in adult criminal and juvenile offense proceedings must certify to the Standards for Indigent Defense. CrR 3.1(d)(4), CrRLJ 3.1(d)(4) and JuCR 9.2(d)(1). The Standards apply to defense attorneys whether they are employed in county-based public defense agencies, non-profit agencies, firms contracting with the city or county to provide indigent defense, as well as appointment list attorneys who are occasionally appointed to represent indigent defendants. The Standards do not apply to prosecutors or defense attorneys with only privately-retained clients.
- Where can I get a certification form?
Most courts have customized the model certification form to meet their own business needs. A sample form can be found at with Washington Supreme Court's Standards for Indigent Defense.
- When filing a certification form, are public defense attorneys permitted to use a version that is altered from the sample provided in CrR 3.1, CrRLJ 3.1, and JuCR 9.2?
All public defense attorneys must file certification forms that are “in substantially the… form” of the sample provided in the aforementioned rules. The sample form reflects the Standards’ requirements on office space, use of investigators, caseload limits, and basic and case-specific qualifications. Forms may be altered to accommodate administrative elements, such as adding a court name or removing language about effective dates. However, the substantive language of the form should stay the same because it reflects requirements of the Standards.
- Do the Standards require certain contractual terms or employment agreements for public defense attorneys?
Yes. According to Standard 3.1, attorneys have an obligation that the contracts or employment agreements they sign "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."
In addition, contracts for public defense services should provide for or include administrative costs associated with providing legal representation such as telephones, legal research, financial accounting, case management systems, computers and software, office space and supplies, training, and other cost incurred in day-to-day management of public defense services. Standard 5.2(A).
- What is the definition of a "case" for purposes of following the Standards?
The Standards define a "case" 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 3.3. In courts of limited jurisdiction multiple citations from the same incident can be counted as one case for the purposes of calculating caseloads." Standard 3.4.
- What are the caseload limits?
Full-time public defense attorneys or assigned counsel should not exceed:
- 150 felonies per year; or
- 400 misdemeanors per year in a jurisdiction that does not use case-weighting, or 300 case-weighted misdemeanors per year; or
- 250 juvenile offender cases per year; or
- 250 civil commitment cases per year; or
- 36 appeals per year; or
- 80 open juvenile dependency cases.
Attorneys appointed to a death penalty trial court case should have no more than one active death penalty case, and their additional caseload should be limited consistent with the time demand of the death penalty case. Standard 3.4.
- How does professional experience factor into an attorney's caseload?
Until an attorney has at least six months experience as a criminal defense attorney, their caseload may not be higher than two-thirds of the maximum caseload limit. The caseload limits may not be increased due to an attorney having additional experience. Standard 3.3.
- Are Rule 9 interns permitted to engage in public defense representation?
Yes. Please refer to Admission and Practice Rule 9.
- Are there limits for Rule 9 interns who are currently law school students?
Yes. Rule 9 interns who have not graduated from law school may not have caseloads that exceed twenty-five percent of the caseload limits established for full-time attorneys. Standard 3.4.
- Does the 25% caseload limit apply to Rule 9 interns who have graduated law school?
It's uncertain. The language in Standard 3.4 explicitly refers to "[f]ull-time rule 9 interns who have not graduated from law school," and there is no similar language discussing Rule 9 interns who have graduated law school. However, if an agency or jurisdiction, after consulting with counsel decide that the 25% rule does not apply to post-graduate Rule 9 interns, there is still a two-thirds caseload limit on new attorneys contained in Standard 3.3. While Rule 9 interns are not attorneys, if new attorneys are limited two-thirds of a full caseload, then Rule 9 interns cannot take a full caseload either.
- How many open cases may a public defense attorney have at any given time?
Standard 3.4 limits the number of felonies, juvenile and misdemeanor cases that an attorney may be assigned to within a year. With the exception of juvenile dependencies, the Standards do not limit the number of open cases an attorney may have. Hypothetically speaking, an attorney may be assigned a full caseload on the last day of the year, and the next day - the first day of the year - they may be assigned another full caseload. OPD does not condone this practice.
- Some misdemeanor cases have more than one citation from the same incident. Do each of those have to be counted as separate cases?
No. Multiple citations from the same incident can be counted as one case for purposes of calculating compliance with caseload standards. Standard 3.5.
- In jurisdictions that don't weight, how are probation violations counted?
In jurisdictions that don't case weight, probation violations are counted as one case for purposes of calculating compliance with the Supreme Court's caseload limits. Because probation violations require specific preparation, consultation, investigation and litigation, they should be counted separately from the representation preformed on the underlying offense. As stated in Standard 3.3: 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's sentence violations and other matters that do not involve a new criminal charge.
However, where the probation violation is only the alleged commission of a new offense, that probation violation is tracked with the corresponding new charge, and the probation violation per se does not trigger additional work, then both the probation violation and the new criminal case may be counted together as one.
In many jurisdictions’ courts oversee compliance with probation requirements by requiring defendants to attend regularly scheduled "show cause" calendars. At these calendars defendants may simply update their progress, or discuss what obstacles they've had in completing requirements, as opposed to the filing of actual violations that could trigger sentence revocation. Representation on these calendars need not result in counting each case individually, but rather by counting the time spent by the attorney at and preparing for the calendar.
- If an attorney handles different case types (e.g. misdemeanors and juvenile offender cases), how is a caseload calculated?
When attorneys carry a mixture of case types, Standard 3.3 instructs that the caseload limits should be applied proportionately to determine a full caseload. For example, a full-time caseload could be a combination of approximately 17 misdemeanors per month (200 per year) and 10 juvenile offender cases per month (120) per year.
- What if a lawyer reaches the caseload limit in less than one year?
The caseload limits are based on a reasonably even distribution of cases throughout the year. Therefore, the limits establish that a full-time public defense attorney should be assigned to, on average, about one-twelfth of a full caseload per month (e.g. approximately 13 felonies, or 33 misdemeanors, or 21 juvenile delinquency cases). The limits establish that a half-time public defense attorney will be assigned to, on average, half that amount.
- Is a public defense attorney strictly limited to the precise number of cases in a given time period? For example, no more than 100 misdemeanors or 37 felonies per quarter?
Given the dynamics of the criminal justice system, it is reasonable to assume that cases will not be distributed with complete precision within a given time period. However, each public defense attorney must ensure that over the period of one-year, new case assignments are reasonably evenly distributed, and that the annual caseload is within the permissible limits.
- What if a lawyer works fewer than 40 hours per week?
The numeric caseload limits presume an attorney working full-time. Standard 3.4. A public defense attorney's caseload should be proportionate to the amount of time worked. For example, an attorney who works part-time should be expected to have a reduced caseload proportionate to the time worked.
- What if a lawyer works more than 40 hours per week?
The numeric caseload limits reflect the maximum caseloads for fully supported full-time defense attorneys and may not be adjusted upward. Full-time work is presumed to be approximately 1800 hours per year spent on activities related to client representation and/or staffing arraignment or review calendars. Many attorneys work extra hours, but such extra time does not permit an upward adjustment to the caseload limits.
- When one attorney covers a court proceeding for an associated attorney who is unable to appear, are both attorneys required to include that case in their case counts?
It is not uncommon that associated attorneys will occasionally cover court hearings for one another. For example, if an attorney is ill and the hearing involves routine or simple matters, it may be more efficient for a partner attorney to cover the court hearing rather than delaying the case for the client. In such occasional situations, the covering attorney need not count the partner's case in the case count unless it requires a significant investment of time. However, should this occur on a more frequent or routine basis, the covering attorney would be expected to be familiar with the facts and legal issues, and develop a representational relationship with the client. Therefore, both attorneys would count the case in their caseloads.
- What if a lawyer has a combination of public defense cases and privately retained cases?
"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." Standard 3.3. For example, if an attorney spends one-half of their time on public defense cases, the attorney should be assigned to no more than half of a full caseload per year.
- If two attorneys are both appointed to the same case, how do they count the case in their caseloads?
There are various situations where more than one attorney will work together on a case (as opposed to one attorney withdrawing, and another attorney becoming the newly assigned counsel). Because each attorney is expected to be fully familiar with all aspects of the case and develop a representational relationship with the client, each must include the full value of the case in their caseload.
- What is case weighting?
Case weighting is the process of assigning greater and lesser value to different case types, corresponding to the greater and lesser amount of time involved, and tallying those case-weight values for purposes of calculating an attorney's caseload. Standard 3.5.
- Is case weighting required?
No. Jurisdictions are not required to engage in case weighting, but it is in an option for purposes of calculating caseload.
- What are the requirements of a case weighting system?
"Attorneys may not engage in 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 them." Case-weighting policies and procedures must include the following:
A method that assesses and documents the workload involved in different case types; Consistency with the Standards, professional performance guidelines, and the Rules of Professional Conduct; Assurances that attorneys have adequate time for quality representation; Periodic review and updating; and Submission of the policy to us. Standard 3.5.
- For case weighting purposes, what is meant by "policies and procedures?" Is it sufficient to include a case weighting scheme in contracts for public defense services?
If a city or county opts to implement case weighting, it must be done pursuant to a formally adopted and published rule, ordinance, resolution, or other similar method which applies to all attorneys appointed to provide indigent defense services. A contract is not considered to be a policy or procedure.
- How does case weighting impact attorney compensation?
It is common for public defense contracts to include tiered compensation schemes that pay attorneys varying amounts based on case type (e.g. felonies, misdemeanors, etc.), and/or contested hearings (e.g. evidentiary motions, trials, etc.). These compensation schemes are not considered case weighting policies for the purposes of calculating a caseload under the Standards for Indigent Defense. Case weighting and compensation approaches are distinct issues. Cities and counties are free to provide additional compensation for complex cases and/or proceedings. Such additional compensation does not necessarily result in an adjustment to the attorney's caseload.
- Is there guidance on what kind of cases should be weighted up?
Yes. Cases may be weighted higher "if established by an appropriately adopted case weighting system." Standard 3.6. Upward case weighting may be appropriate for "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. Standard 3.6(A).
- Is there guidance on what kind of cases should be weighted down?
Yes. Cases may be weighted lower "if established by an appropriately adopted case weighting system." Standard 3.6. Downward case weighting may be appropriate in the following situations, presuming that they do not involve significant work and effort:
Partial representation of clients; Sentence violations and other case types not involving the filing of new criminal charges; Therapeutic court cases if the attorney is not responsible for defending the client against the underlying charges; and Criminal cases that are easily resolved at early stages by noncriminal dispositions such as diversion, reduction to an infraction or stipulation on continuance.
- May a jurisdiction implement a case weighting system later in the year and apply the case weights retroactively?
Yes. Many jurisdictions lack data for making a determination on whether to implement a case weighting system. Similarly, there may be fluctuations in the types of offenses that are charged with most frequency, changes in the law, and variations in prosecutorial practices - all of which may impact a city or county's decision to implement a case weighting system. With accumulation of such data, the city or county may opt to implement or rescind a case weighting policy.
- Is a model case weighting policy available?
Yes. We developed a Model Misdemeanor Case Weighting Policy which can be customized for local jurisdictions. The model policy includes weight values for different criminal charges. These values were developed as the result of a statewide time study. We provide technical assistance on customizing, developing, and/or reviewing local case weighting policies.
- When a public defense attorney is assigned to represent groups of defendants at arraignment calendars/dockets, how is that factored into a caseload?
In some jurisdictions public defense attorneys provide general information to groups of defendants at arraignment calendars/dockets, without being appointed for individualized representation. In such cases it is not necessary for the attorney to count the calendar/docket cases in his/her caseload. However, the attorney's time spent on such calendars must be factored in the caseload.
- When a public defense attorney is assigned to represent groups of defendants at probation or review calendar/dockets, how is that factored into a caseload?
Similar to arraignments, in some jurisdictions public defense attorneys provide general information to groups of defendants at probation or review calendars/dockets, without being appointed for individualized representation. In such cases it is not necessary for the attorney to count the calendar/docket cases in his/her caseload. However, the attorney's time spent on such calendars must be factored in the caseload.
- How is calendar time converted into case counts or case weights?
In jurisdictions that do not case weight misdemeanors (400 per year maximum) one hour of calendar/docket time is the equivalent to .22 of a case count. Therefore, if an attorney works an average of two calendar hours per week every week, that would be the equivalent of 23 case counts (2 hours x 52 weeks x .22), and the attorney's annual caseload should be reduced accordingly.
In jurisdictions that case weight misdemeanors (300 per year maximum) one hour of calendar/docket time is the equivalent to .17 case weights. Such an attorney's annual caseload should be reduced by 18 case weights.
- Beside caseload limits, what are the other certification requirements?
The Standards require that attorneys meet specific experience levels before representing clients on certain case types. Standard 14. The Standards further elaborate on resources that are required for public defense outside of caseload limits and experience qualifications. See Standards 5 and 6.
- What general qualifications must all public defense attorneys have?
As identified in Standard 14.1, all public defense attorneys must:
- Be licensed attorneys in the state of Washington;
- Be familiar with statutes, court rules, case law, and constitutional provisions;
- Be familiar with the Rules of Professional Conduct;
- Be familiar with the WSBA Performance Guidelines for Criminal Defense Representation;
- Be familiar with mental health issues;
- and Annually complete seven hours of continuing legal education in courses related to public defense practice.
- Do public defense attorneys need to meet additional qualifications?
Yes. The Standards identify the minimum qualifications that public defense attorneys must meet in following case types:
- Death Penalty Representation. Standard 14.2(A) (no longer applicable).
- Adult Felony Cases - Class A. Standard 14.2(B).
- Adult Felony Cases - Class B Violent Offenses. Standard 14.2(C).
- Adult Sex Offense Cases. Standard 14.2(D).
- Adult Felony Cases - All other Class B Felonies, Class C Felonies, Probation or Parole Revocations. Standard 14.2(E).
- Persistent Offender Representation. Standard 14.2(F).
- Juvenile Cases - Class A. Standard 14.2(G).
- Juvenile Cases - Class B and C. Standard 14.2(H).
- Juvenile Sex Offense Cases. Standard 14.2(I).
- Juvenile Status Offense Cases. Standard 14.2(J).
- Dependency Cases. Standard 14.2(L).
- Civil Commitment Cases. Standard 14.2(M).
- Sex Offender "Predator" Commitment Cases. Standard 14.2(N).
- Contempt of Court Cases. Standard 14.2(O).
- Specialty Courts. Standard 14.2(P).
- Appellate Representation including misdemeanor RALJ appeals to Superior Court. Standard 14.3.
- Legal Interns. Standard 14.4.
- What minimal resources must public defense attorneys have?
Public defense attorneys must have access to an office that accommodates confidential meetings with clients, a postal address, and telephone services to ensure prompt response to client contact. [Standard 5.2(B)] In addition, public defense attorneys shall use investigation services as appropriate. Standard 6.
- Can the experience requirements of Standard 14.2 be met through non-attorney experience?
No. Many of the case types in Standard 14 require that the attorney have prosecutor, public defender, or private criminal experience, including criminal trial experience. For purposes of meeting these experience requirements under Standard 14, all such experience must occur after the attorney became licensed to practice law.
- If an attorney lacks the required experience in Standard 14.2, can that deficiency be cured through supervision by an experienced attorney?
Not unless the supervising attorney is also representing the defendant. Attorneys working toward qualification for a particular category of cases under Standard 14.2 may associate with lead counsel who is qualified for that category of cases. Footnote 1 to Standard 14.2. The lead counsel must be assigned to that particular case, and both attorneys must include the full value of the case in their caseloads.