HomeMy WebLinkAboutGeorge Moreno - Indigent Defense Attorney PSA - Reassign_Overflow_Conflict AGREEMENT FOR INDIGENT CRIMINAL DEFENSE
PERSONAL SERVICES AGREEMENT
RE-ASSIGNMENT/OVERFLO W/CONFLICT
WHEREAS, the City of Pasco, Washington (hereinafter "City") provides indigent
defense services to individuals who have been certified for representation in criminal charges
before the Pasco Municipal Court(hereinafter"Municipal Court"); and
WHEREAS, George Moreno (hereinafter "Attorney") is a licensed attorney in good
standing in the State of Washington who has been selected to perform services to indigent
defense clients under contract with the City; and
WHEREAS, the City has adopted the Standards for Public Defense ("Standards")
pursuant to the requirements of RCW 10.101.030. NOW, THEREFORE,
IN CONSIDERATION OF THE MUTUAL COVENANTS CONTAINED HEREIN,
it is agreed as follows:
1. Scope of Services, Standards and Warranly.
1.1 The Attorney will be available and provide on-call indigent defense
services on a rotational basis for a period of time to be determined by the Indigent
Defense Contract Administrator, as necessary to fulfill the Standards in his/her case
appointments in accordance with the Standards for Indigent Defense and Certification
and Compliance as approved by the Washington Supreme Court by its Order of
September 7, 2012, found at CrRLJ 3.1, and as may thereafter be amended, including
required consultation with incarcerated and non-incarcerated defendants.
1.2 The Attorney will be available and provide indigent defense services for
case appointments in accordance with the Standards for Indigent Defense and
Certification and Compliance as approved by the Washington Supreme Court by its
Order of September 7, 2012, found at CrRLJ 3.1, and as may thereafter be amended,
including required consultation with incarcerated and non-incarcerated defendants.
1.3 The Attorney warrants that he/she is and during the term of this
Agreement, qualified to provide indigent criminal defense as defined by Standard 14; and �
further warrants that he/she and every attorney and/or intern employed by the Attorney to
perform services under this Agreement has read and is fully familiar with the provisions
of the Wasl�ington Supreme Court Rules and the Standards, including the qualifications
provided in Standard 14, as adopted by the City; and Wilbasr vs. Ciry of Mount Yernon,
No. CL-1100RSL(December 2013).
1.4 Compliance with these Standards goes to the essence of this Agreement.
The Attorney, and every attorney perfor�ning services under this Agreement, shall certify
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compliance quarterly with the Municipal Court on the form established for that purpose
by CrRJ 3.1.
1.5 The Attorney will collect and maintain data and report to the City's
Indigent Defense Contract Administrator without violating client privileged
communications, as follows:
1.5.1 Monthly report the number of cases assigned during the period and
the time spent on each case;
1.5.2 Monthly report the disposition of cases assigned, indicating the
number of cases dismissed, the number of cases in which charges were reduced,
the number of cases tried (bench versus jury trials), and the number of cases
disposed of by plea;
1.53 Monthly report the number of cases in which a motion was
brought;
1.5.4 Monthly report the number of cases in which an investigator,
interpreter, or other outside assistance,was utilized;
1.5.5 Monthly report the number of cases which were set for trial but for
which the defendant failed to appear; and
1.5.6 Annually report the number and type of all outside cases that are
not pursuant to this Agreement, that aze taken by Attorney and by any attorney
performing services under this Agreement.
1.6 Attorneys who provide public defense services must limit their privately
retained wvrk as not to exceed the case limits as required by the Standards.
1.7 The Attorney further warrants that all infrastructure, support,
administrative services, computerized legal research and systems necessary to cornply
with the Standards, is available to the Attorney, and will further notify the City
immediately if he/she is unable, or fails,to meet the required Standards.
1.8 The Attorney agrees to and shall represent all persons whom Attorney is
appointed to represent hereunder with the same skill and commitment as Attorney
exercises and expends when representing persons on a private and/or retained-fee basis.
Without limitation in that regard, such representation should include the investigation of
the underlying facts, the research of all relevant law, interviewing of potential witnesses,
requesting and use of investigators and/or experts when warranted and necessary, review
of potential immigration or civil commitment consequences, and the preparation for and
appearance on behalf of the client in all hearings, motions, trials, sentencing, contempt
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proceedings. Potential immigration consequences assistance is available from the
Washington Defenders Association's Immigration Project. The court shall remove the
Attorney as the Attorney of Record ninety (90) days after: (1) plea of guilry; (2) finding
of guilty; or (3) entry of a Deferred Prosecution, Stipulated Order of Continuance or
Deferred Sentence. During the ninety (90) days post-conviction or entry of a Defened
Prosecution, Stipulated Order of Continuance or Deferred Sentence,the Attorney shall be
responsible for assisting his/her client in motions to modify jail, work crew or home
monitoring sentence. If a client wishes to file an appeal, the Attorney shall prepare and
file any and all pleadings necessary and appropriate to perfect any appeal or statutory writ
to a higher caurt, including the filing request for indigent public counsel.
1.9 The Attorney agrees to meet with an assigned client to discuss his/her case
as soon as reasonably possible following Attorney's appoinhnent to the case. When
Attorney is appointed to an "in custody" case (i.e., a case in which the person is
confined/incarcerated), Attorney should use his/her best efforts to meet within three (3)
business days of Attorney receiving the appointrnent, or sooner if the circumstances of a
particular case reasonably require that Attorney make earlier initial contact with the
person.
1.10 The Attomey agrees to maintain reasonably appropriate contact/
communications with assigned clients so as to keep them fully apprised as to the status of
their case (with the specific manner and frequency of such contact/comrnunications left
entirely to Attorney's professional judgement}; and Attorney should use his/her best
efforts to apprise the client of any new development in their case within three (3)
business days of Attorney learning of such development (unless the circumstances of a
particular case reasonably require that Attorney make earlier contact with the person).
Without limiting any of the foregoing provisions of this Section, with regard to any court
hearing involving a client, Attorney should contact such client to discuss the case and the
purpose of the hearing no later than one (1) business day prior to the hearing date. f i
Attorney shall compile and maintain appropriate case records for each person whom
Attorney is appointed to represent hereunder. The manner of storage, the portiun or
portions of case records that must be stored, and the required period of storage, shall
comply with any and all applicable Rule of Professional Conduct, Washington State Bar
Ethics Opinion, case law, and court rule.
l.l l The Attorney agrees to reasonable use of the City's contracted Spanish
interpreter to communicate with Spanish speaking clients prior to hearings and trials.
1.12 The Attomey agrees to make the same certification reporting as is reyuired
in Section 1.3, to the Indigent Defense Contract Administrator. Quarterly Certification of
compliance with Standards required by CrRJ 3.1(d)(4).
1.13 The Attorney agrees to provide to the Court and to the Indigent Defense
Contract Administrator within five (5) days of signing this Agreement, and to also
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provide to each new client upon case assignment, a Letter of Introduction that identifies
Attorney's weekly open office hours and phone hours. Further, the Attorney agrees to
reserve time solely to rneet with clients under this Agreement for a minimum of four(4)
hours each week and agrees to specify those hours on said Letter of Introduction. Upon
any change in office or phone hours, Attomey shall provide an update to the Court, the
Indigent Defense Contract Administrator, and all active clients, within thirty (30} days of
said change.
1.14 The Attorney agrees to, and shall take, all calls by a person arrested,
charged, and in-custody for misdemeanor criminal law violation(s)charged by the City of
Pasco during the Attorney's rotational month(s). The Attorney's rotational rnonth(s) shall
be assigned by the Indigent Defense Contract Administrator.
2. Comt�ensation.
2.1 The City shall pay to the Attorney on a monthly basis, for services
rendered under this Agreement, two hundred and fourty dollars ($240.00) per case as
defined in Section 2.2. In addition, to the per case payment, Attorney shall receive three
hundred dollars ($300.00) per day for each day of trial. Trial does not include pre-trial
motions, separate sentencing proceedings, or time waiting for disposition.
The City shall pay to the Attorney, on a monthly basis, in addition to the above
compensation, for services rendered under this agreement, Three Hundred Dollars and
00/100 ($300.00) for the Attorney's rotational on-call month. It is understood by the
parties that the anticipated call volume per month should approximate five (5) calls, and
in the event call volume exceeds seven (7) calls per month, this compensation amount
may be modified by subsequent written agreement signed by both parties.
Payments shall be calculated and made on a monthly basis, payable only after
City receives and approves invoice from Attorney, who shall submit invoice for each
month after the last day of said month. Payment shall Ue made not later than thirty (30)
days after the receipt of invoice, subject to approval of invoice by City. Attorney
understands that this Agreement is for Re-assignment, Overflow or Conflict cases thus
there is no expectation of monthly case assignments from the Court.
2.2 Case Counts. For the purpose of this Agreement, a"case" is defined as the
filing of a document with the Court naming a person as a defendant or respondent to
which an attorney is appointed in order to pravide representation. Included as a single
case are multiple citations arising out of or related to the same incident or event occurring
on not more than two separate dates as determined by the Court at the time of
appoinhnent, and on amendments to such charges including contempt of Court or bail
jumping for failure to appear for trial or hearings. For the purpose of this Agreement,
post-cvnviction sentencing modification requests by the defendant within ninety (90)
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days of sentencing shall not be counted as an additionai case. The maximum cases for
which defense services shall be provided during any 12-month period during the term of
this Agreement shall be 100 cases as calculated and certified by the Attorney in
accordance with the Standards. Under no circumstance shall caseload exceed 400 cases in
any given 12-month period, nor at any time shall Attorney or any attorney perforniing
services under this Agreement manage a caseload, including cases assigned pursuant to
this Agreement and taken outside of this Agreement, in excess of the limits set by the
Standards or by other applicable law. Upon adoption of a case weighting criteria by the
Suprerne Court, pursuant to Standard 3.5, the City reserves the right to revise the case
count to maximum cases permitted under such schedule as approved by the Supreme
Court and adopted by the City, which adoption shall not affect the terms of this
Agreement.
2.3 Base Cornpensation. Except as expressly provided in Section 2.5 below,
Attorneys shall be responsible for paying all administrative expenses of their office or
firm. Such administrative expenses may include but not limited to law libraries, financial
accounting, legal assistance, case management systems, support staff, computers,
telephones and telephone services, photocopiers, the cost of all infrastructure
administrative, computerized legal research, support and systems as well as standard
averhead services necessary to comply with the established standards is included in the
base payment provided in Section 2.1 above.
2.4 Pa ments in Addition to the Base Com ensation. The Ciry shall pay the
following case expenses when reasonably incuned and approved by the Municipal Court
or Indigent Defense Cnntract Administrator from funds available for that purpvse:
2.4.1 Discoverv. Discovery shall be provided in accordance with law
and Court Rule by the City Prosecutor.
2.4.2 Preauthorized Non-Routine Ex enses. Non-routine case expenses
requested by Attorney must be first authorized by order of the Municipal Court or
approval of the Indigent Defense Contract Administrator. Unless the services are
performed by Attorney's staff or subcontractors,non-routine expenses include, but
are not limited to:
(i) Medical and psychiatric evaluations;
(ii) Expert witness fees and expenses;
(iii) Interpreters for languages not commonly spoke in the City or
interpreters for services other than attorneylclient communication;
{iv) Forensic and other scientific tests;
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(v) Investigation expenses;
(vi) Social Workers;
(vii) Mitigation Experts;
(vii) Any other non-routine expenses the Municipal Court or Indigent
Defense Contract Administrator finds necessary and proper for the investigation,
preparation, and presentation of a case.
2.4.3 Lav Witness Fees. Lay witness fees and mileage incurred in
bringing defense witnesses to Court, but not including salary or expenses of law
enforcement officers reyuired to accompany incarcerated witnesses;
2.4.4 Records. Medical, school, birth, DMV, and other similar records,
and 911 and emergency communication recordings and logs.
2.4.5 Process Service. The reasonable cost for the service of a
subpoena.
2.4.6 Private Investi ation Services. The Attorney agrees to make all
requests for private investigation services to the Indigent Defense Contract
Administrator (IDCA). On appropriate cases, the IDCA will appoint a Private
Investigator(PI)to assist the Attorney. Attorney shall provide facts on the case to
the PI so he/she can provide effective investigation services. Attorney shall
cooperate and communicate with the PI. Upon final disposition of the case or
upon completion of the requested private investigation services whichever occurs
first, the Attomey shall within five (5) business day email notification to the
IDCA and PI that no further investigation is necessary.
2.5 Rene otiation Due to Chan e in Rule or Standard. This Agreement may
be renegotiated at the option of either party if the Washington State Supreme Court, the
Washington 5tate Bar Association, or the City significantly modifies the Standards for
Indigent Defense adopted pursuant to Court Order or City Resolution.
2.6 Recusal. In the event that the Attorney is unable to accept an assignment,
due to conflict or otherwise, the Attorney shall provide immediate notice to the Court of
the conflict and the Court shall assign the case to Conflict Counsel. In the event the
Attorney is unable to accept or perform assigned indigent defense cases for more than
five percent (5%) of the assigned cases during any 12-rnonth period, the City may
terminate this Agreement.
3. Term. The term of this Agreement shall be for 12 months commencing on the 1 st
day of January 2022 and ending on 31St day of December 2022 unless sooner ternlinated as
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provided in this Agreement. Unless otherwise terminated as provided below, this Agreement
shall automatic be renewed for an additional twelve (12) month term. The terms and conditions
of the renewal term shall be identical to the terms and conditions of the last year of the original
term.
3.1 Tem�ination for Cause. This Agreement may be terminated by either
party for cause for violation of any material term of this Agreement. "Material term" shall
include any violation indicating a failure to provide representation in accordance with the
rules of the Court and the ethical obligations established by the Washington State Bar
Assaciation; a violation of the Standards; violation of Section 5 relating to insurance;
conviction of a criminal charge; or a finding that the license of the Attorney, or any
attorney providing service under this Agreement, has been suspended or revoked. Any
violation of the other provisions of this Agreement shall be subject to cure. Written notice
of Agreement violation shall be provided to the Attorney who shall have ten (10)
business days to correct the violation. Failure to correct the violatian will give rise to
termination for cause at the City's discretion. In lieu of terminating this Agreement, the
City may agree in writing to alternative corrective measures.
3.2 Termination without Cause. This Agreement may be terminated by either
party at any time without cause upon ninety (90) days advanced written notice to the
other party.
3.3 Obli�tions Survive Termination. In the event of termination of this
Agreement,the following obligations shall survive and continue:
3.3.1 Representation. In the event this Agreement is terminated,
Attorney will continue to represent clients on assigned cases until a case is
concluded by plea, dismissal, conviction on the trial court level, or as otherwise
ordered by the court. However, on cases that have not concluded because the
defendant has been on warrant status for ninety (90) consecutive days, the case
will be re-assigned to another Attorney upon the determination that the defendant
still qualifies for indigent defense. In all other instances, Attorney shall continue
to represent clients unless a motion to withdraw and appoint substitute counsel
(acceptable to the City) is entered on each outstanding case. Compensation for
substitute counsel shall be the responsibility of the Attorney and not the City, and
the substituting attorney must agree in writing to be bound by the applicable terms
of this agreement prior to substitution.
3.3.2 The provisions of Section 1 "Scope of Services, Standards and
Warranty"; and this Section 33 shall survive termination as to the Attorney. The
City shall remain bound by the provisions of Section 2.5 "Payrnents in Addition
to the Base Compensation" with respect to cases concluded after the termination
of this Agreement.
Agreement for Indigent Criminal Defense-7
I
4. Nondiscrimination. Neither the Attorney nor any person acting on behalf of the
Attorney, shall, by reason of race, creed, color,national origin, sex, sexual orientation, honorably
discharged doctrine or military status or the presence of any sensory, mental, or physical
disability or the use of a trained guide dog or service animal by a person with a disability,
discriminate against any person who is qualified and available to perform the work to which the
employment relates, or in the provision of services under this Agreement.
5. Insurance. The Attorney shall procure and maintain for the duration of this
agreement insurance against claims for injuries to persons or property which may arise from or
in connection with the performance of work hereunder by the Attorney, or the agents,
representatives,employees, or subcontractors of the Attorney.
5.1 Minimum Sco e of Insurance. Attorney shall obtain insurance of the
types described below:
5.1.1 Commercial General Liability insurance shall be written on ISO
occurrence form CG 00 01 and shall cover liability arising from premises,
operations, independent contractors and personal injury and advertising injury.
The City shall be narned as an insured under the Attomey's Commercial General
Liability insurance policy with respect to the work performed for the City.
5.1.2 Workers' Compensation coverage as required by the Industrial
Insurance laws of the State of Washington, if required by State law.
5.1.3 Professional Liability insurance appropriate to the Attorney's
profession.
5.2 Minimum Amounts of Insurance. Attorney shall maintain the following
insurance limits:
Commercial General Liability insurance shall be written with limits no
less than:
[X] $1,000,000 each occurrence;
[X] $2,000,000 general aggregate; or
[ ] $ each occurrence; and $ general aggregate
Professional Liability insurance shall be written with limits no less than:
[X ] $1,000,000 per claim;
[X] $1,000,OQ0 policy aggregate limit; or
[ ] $ _per claim; and$ per policy aggregate limit.
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5.3 Other Insurance Provisions. The insurance policies are to contain, or be
endorsed to contain, the following provisions for Automobile Liabiliry, Professional
Liability, and Commercial General Liability insurance:
5.3.1 The Attorney's insurance coverage shall be primary insurance as
respects the City. Any insurance, self-insurance, or insurance pool coverage
maintained by the City shall be excess of the Attorney's insurance and shall not
contribute with it.
5.3.2 The Attorney's insurance shall be endorsed to state that coverage
shall not be cancelled by either party, except after thirty (30) days prior written
notice by certified mail,return receipt requested, has been given to the City.
5.4 Acceptabilit� of Insurers. Insurance is to be placed with insurers with a
current A.M. Best rating of not less than A: VII.
5.5 Verification of Covera�e. Attorney shall furnish the City with original
certificates and a copy of the amendatory endorsements, including but not necessarily
limited to the additional insured endorsement, evidencing the insurance requirements of
the Service Provider before commencement of the work.
6. Work Performed by Attorne��. In addition to the responsibilities mentioned in
Section 1 above, the Standards for Indigent Defense (SID) and Certification and Compliance
approved by the Washington Supreme Court by its Order of September 7, 2Q12 found at CrRL7
3.1, the Attorney shall complete seven (7) hours of continuing legal education within each
calendar year of this Agreement in courses relating to public defense practice including, but not
limited to, conseyuences of the conviction or adjudication, including possible immigration
consequences and a possibility of civil commitment proceedings based upon a criminal
conviction; statutes, Court Rules, Constitutional provisions, and case law relevant to public
defense practice; and such other courses and study to maintain the qualification familiarity as
required under Standard 14.1. These seven (7) hours of continuing legal education shall be of �
OPD-approved training in accordance with RCW 10.101.050. In addition to compliance with the
Standards, in the performance of work under this Agreement, Attorney shall comply with all
Federal, State and City laws, ordinances,rules and regulations which are applicable to Attorney's
business, equipment, and personnel engaged in operations covered by this Agreement or
accruing out of the performance of such operations.
7. Work Performed at Attorne��'s Risk. Attorney shall be responsible for the
safety of its employees, agents, and subcontractors in the performance of work hereunder, and
shall take all protections reasonably necessary for that purpose. All work shall be done at the
Attorney's own risk, and the Attorney shall be responsible for any loss or damage to materials,
tools, or other articles used or held in connection with the work. Attorney shall also pay its
employees all wages, salaries and benefits required by law and provide for taxes, withholding
and other employment related charges, taxes or fees in accordance with law and IRS regulations.
Agreement for Indigent Criminal Defense-9
8. Personal Services No Subcontractin . This Agreement has been entered into in
consideration of the Attorney's particular skills, yualifications, experience,and ability to meet the
Standards incorporated in this Agreement. Therefare, the Attorney has personally signed this
Agreement below to indicate that he/she is bound by its terms. This Agreement shall not be
subcontracted without the express written consent of the City and refusal to subcontract may be
withheld at the City's sole discretion. Any assignment of this Agreement by the Attorney without
the express written consent of the Ciry shall be void.
9. Modification. No waiver, alteration or modification of any of the provisions of
this Agreement shall be binding unless in writing and signed by the duly authorized
representatives of the City and the Attorney.
10. Entire A reement. The written provisions in terms of this Agreement, together
with any exhibit attached hereto, shall supersede all prior verbal statements of any officer or
other representative of the City, and such statement(s) shall not be effective or construed as
entering into or fornung a part of,or altering in any manner whatsoever,this Agreement.
11. Written Notice. All communications regarding this Agreement shall be sent to
the parties at the addresses listed below, unless notified to the contrary. Any written notice
hereunder shall become effective as of the date of mailing by registered or certified mail, and
shall be deemed sufficiently given if sent to the addressee at the address stated in the Agreement
or such other address as may be hereinafter specified in writing:
C�; Attornev:
Zach Ratkai, Director George Moreno
Administrative&Community Services 1355 Columbia Park Trail, Suite F
City of Pasco Richland,WA 99352
525 North 3rd Ave 509-581-7418
ratkaiz(cr��pasco-wa.gov
12. Nonwaiver of Breach. The failure of the City to insist upon strict performance
of any of the covenants and agreements contained herein, or to exercise any option herein
conferred in one or more instances shall not be construed to be a waiver or relinquishment of
such covenants, agreements, or options, and the same shall be and remain in fi►11 force and effect.
13. Resolutions of Dis utes Governin Law. Should any dispute,
misunderstanding or conflict arise as to the terms or conditions contained in this Agreement, the
matter shall be referred to the City Manager, whose decision shall be final. Any appeal from the
decision of the City Manager shall be resolved by arbitration pursuant to Chapter 7.04A RCW,
as amended, and the Mandatory Arbitration Rules (MAR), with both parties waiving the right of
a jury trial upon trial de novo; venue shall be placed in Pasco, Franklin County, Washington
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Superior Court, the laws oCthe State of Washington shall apply; and the prevailing party shall be
entided t� its reasonablc attorney fees and cost as additionat award and judgment against the
other. Provided, however, that any complaint regarding any violati�n of tlie Standards or which
relate ta any manner u�hatsoever to trial strate�y or an an�oing case, shall be referred to the
Judge of the Municipal Court or to the Washington State Bar Association as appropriate.
Nothing herein shall be construed ta obligate, require or permit the City, its officers, agents, or
employees to inquire into any pri��ileged con�munication betu�een the Attomey and any indigent
defendant. This Agreement shall be governed hy and construed in accordance with the laws of
the State of Washington and the rules of the VtTashington Supreme Caurt as applicable.
IN WITNESS `VHERE4F, tl�e parties have executed this Agreement on the Z'f"''`day
of_����q�� _,-20�4
CITY: ATTORNEY.
� � _ . :,_ - -
� — — ----_��.._': i, ,�"�---._.
Zach Ratkai, .. irector �._ �.e��'nilorenc�� ' �
Administrative& Community Services
Approved as to Forn�•
�
Kerr Ferguson _aw, LLC �-
City Attorney
Agreement for Ind[gent CriminaI Defense- ]1