HomeMy WebLinkAboutMichael Anthoni Nguyen - Indigent Defense Attorney PSA AGREEMENT FOR INDIGENT CRIMINAI,DEFErJSE
PERSONAL SERVICES AGREEMENT
WHEREAS, the City of Pasco, Washingtpn (hereinafter "City") provides indigent
defense services to individuals who have been certified for representation in criminal charges
before the Pasco Municipal Court�hereinafter"Municipa.l Court"}; and
WI�REAS, Michael Anthoni IVguyen (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 3tandards for Public Defense ("Standards")
pursuant to the requirements of RCW 10.101.030. NOW,THEREFORE,
IN CONSIDERATION OF THE MUTLJAI, CpV�N�S CONTAINED HEREIN,
it is agreed as follows:
1. Sco e of Services Standards and Warran .
1.1 The Attorney will be available and provide on-call indigent defense
services on a rotational basis for a periad of time to be determined by the Indigent
Defense Contract Administrator, as necessary to fulfill the Standards in his/her case
appointments in accoidance with the Standards for Indigent Defense and Certificatian
and Compliance as approved by the Washington Supreme Caurt 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-incax,cerated defendants.
1•2 The Attomey will be availa,ble 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-incazcerated defendants.
1.3 T'he 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
furthher wamants that he/she and every attorney and/ar intern employed by the Attarney to
perform services under this Agreement has read and is fully familiar with the provisions
of the Washington Supreme Court Rules and the Standards, including the qualifications
provided in Standard 14, as aciopted by the City; and Wilbur vs. City af Maunt Yernon,
No. CL-1100RSL(December 2013).
1.4 Cornpliaace with these Standards goes to the essence of this Agreement,
The Attorney, and every attorney perfarming Se�yices under this Agreement, shall certify
E1gr'eeanent for Inciigent Criminal Defense- 1
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 ciient privileged
communications, as follaws:
1.5.1 Monthiy 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 chazges were reduced,
the number of cases tried (bench versus jury trials), and the number of cases
disposed of by plea;
1.5.3 Monthly report the number of cases in wluch a motion was
brought;
1.5.4 Monthly report the number of cases in which an investigator,
interpreter, or other outside assistance,was urilized;
1.5.5 Monthly report the number of cases which were set for trial but for
which the defendant failed to appear;and
1.S.b Annually report the number and type of all outside cases that are
not pursuant to this Agreement, that are 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 work as not to exceed the case limits as required by the Standards.
1.7 The Attorney fiuther warrants that all infrastructure, support,
administrative services, computerized legal research and systems necessary to comply
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 Standarcis.
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 reseazch of all relevant law, interviewing of potenrial witnesses,
requesting and use of investigators and/or experts when warranted and necessary,review
of potential immigration or civil commitrnent consequences, and the preparation for and
appearance on behal£of the client in all hearings, motions, trials, sentencing, contempt
Agreement for Indigent Crimin.al Defense-2
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 guilty; (2) finding
of guilty; or {3) entry of a Deferred Prosecution, Stipulated Qrder of Continuan,ce or
Deferred Senteuce. During the ninety (90) days post-cunviction or entry of a Deferred
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 Attomey shall prepare and
file any and all pleadings necessary and appropriate to perfect any appeal or statutory writ
to a higher court,including the filing request for indigent public counsel.
1.9 The Attomey agrees to meet with an assigned client to discuss his/her case
as soon as reasonably possible following Attorney's appointment to the case. When
Attorney is a�pointed to an "in custody" case (i.e., a case in which the person is
confined/incarcerated), Attarney should use his/her best efForts to meet within three (3)
business days of Attorney receiving the appointrnent, or saoner if the circumstan,ces of a
particular case reasonably require that Attorney make eazlier initial contact with the
person.
1.10 The Attomey agrees to maintain reasonably appropriate contact!
communications with assigned clients sa as to keep them fully apprised as to the status of
their case (with the specific manner and fr�equency of such contacdcommunications 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 af a
particular case reasonably require that Attorney make earlier contaot with the person).
Without limiting any of the foregoing provisions of this Section,with regard to any court
liearing 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,
Attorney shall cornpile and maintain appropriate case records for each person whom
Attorney is appointed to represent hereunder. The manner of storage, the portion or
portions of case records that must be stored, and the requi�� P�� of storage, shall
comply with any a,nd all applicable Rule of Professional Conduct, Washington State Bar
Ethics Opinion, case law, and court rule.
1.11 The Attorney agrees to reasonable use of fihe City's contracted Spanish
interpreter to communicate with Spanish speaking clients prior to hearings and trials.
1•12 The Attomey agrees to make the sa,me certification reporting as is required
in Section 1.3,to the Indigent Defense Contract Administrator. Quarterly Certification af
compliance with Standards required by CrRJ 3.1(d)(4).
1.13 The Attorney agees to provide to the Court and to the Indigent Defense
Contract Administrator within five (5) days of signing this Agreement, and to also
Agrcement for Indigent Criminal Defense-3
provide to each new client upon case assignment, a Letter of Introduction that identifies
Attomey's weekly open office hours and phone haurs. Further, the Attorney agrees to
reserve time solely to meet with clients undet this Agreement for a minimum of four (4)
hours each vsreek and agrees to specify those hours on said Letter af Intraduction. Upon
any change in office or phone hours, Attorney shall provide an update to the Court, the
Indigent Defense Contract Adminisiratar, 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 misdemeanar criminal law violation(s)charged by the City of
Pasco during the Attorney's rotational month(s). The Attamey's rotational month(s) shall
be assigned by the Indigent Defense Contract Administrator.
�. Comt�ensation.
2•1 The City shall pay to the Attomey on a monthly basis, for services
rendered under this Agreement, two hundred and fouriy dollars (�244.00) per case as
defined in Section 2.2. In addition, to the per case payment, Attomey 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 v�,ait�g 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 ($300.00) for the Attorney's rotational on-call month. It is understood by the
parties that the anticipated call volume per month should approximate five (5) calls, and
in the event call volume exceeds seven (7) calls per montb, tlus compensation amount
may be modified by subsequent writtett agreement signed by both parties.
Payments shall be calculated and made on a monthly basis, payable only ai�er
City receives and approves invoice &om Attomey, who sha11 submit invoice for each
month a$er the last day of said month. Payment shall be made not later than thirty(30)
days after the receipt of invoice, subject to approval of invoice by City.
2.2 Case�, For the purpose af this Agreetnent, 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 aze multiple citations arising out af or related to the same incident or event accurring
an not more than iwo separate dates as determined by the Court at the tirne of
appoinhnent, and an a,mendments to such charges including contempt of Court or bail
jumping for failure to appear for trial or hearings. If the appointed attorney is removed
fi'om the case because of a conflict of interest, then this case will not count as a case for
the purpases of a Case Count. For the pucpose of this Agre�ment
sentencing modification requests by the defendant within tu.nety (90) da,ys��se te cing
shall not be counted as an additional case. The maximum cases for whi�h defense
Agreement for Indigent Criminal Defense-4
services shall be provided during any 12-month period during the term of this Agreement
sha11 be 304 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, nar at any time shall Attorney or any attarney performing services under
this Agreement manage a caseload, including cases assigned pursuant to this Agreement
and taken autside af 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 Supreme Court,
pursuant to Standard 3.5, the Ciry 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 Ageement.
2.3 Base Compensation. Except as expressly provided in Section 2.5 below,
Attorneys shall be responsible for paying a11 administrative expenses of their office or
fum. Such administrative expenses may include but not limited to law libraries, financial
accounting, legal assistance, case management systems, support stafF, computers,
telephones and telephone senrices, photocopiers, the cost of all infrastructure
administrative, computerized legal research, sapport and systems as well as standard
overhead services necessary to comply with the established standards is included in the
base payment provided in Section 2.1 above.
2.4 Pa ents in Addition to the Base Com ensation. The City shall pay the
following case expenses when reasonably incurred and approved by the Municipal Court
ar Indigent Defense Contract Administrator from funds available for that ptupose:
2.4.1 Discover�. 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 Attomey must be £ust authorized by order of the Municipal Court or
approva� of the Indigent Defense Contract Administrator. Unless the services are
P�o��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 commo�ly spflke 'vn the City or
interpreters for services other than attorney/client communication;
(iv) Forensic and other scientific tests;
(v) Investigation expenses;
Agreement for Indigent Criminal Defense-5
(vi) Social Workers;
{vii) Mitigation Experts;
(vii) Any other non-routine expenses the Municipal Court or Indigent
Defense Cantract Administrator finds necessary and proper for the investigation,
preparation,and presentation of a case.
2.4.3 Lay Witness Fees. Lay witness fees and mileage incurred in
bringing defense witnesses to Court, but not including salaty or expenses of law
enforcement off'icers required to accompany inearcerated 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 reasonabie cost for the service of a
subpoena.
2.4.6 Private Investi atian Services. The Attomey 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(Pn to assist the Attorney. Attorney sha11 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
upan completion of the requested private investigation services whichever occurs
first, the Attorney 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 Standa.rd. This Agreeraent may
be renegotiated at the option of either party if the Washington State Supreme Court, the
Washington State 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 irnmediate notice to the Court of
the conflict and the Court shall assign the case to Conflict Counsel. In the event the
Attomey is unable to accept or perform assigned indigent defense cases for more than
five percent (5°Io) of the assigned cases during any 12-month period, the City may
terminate this Agreement.
3• Term. The term ofthis Agreement shall be far 12 months commencing on the lst
�Y °�J�uary 2422 and ending on 313` day of December 2022 unless saoner terminated as
provided in this Agresment. Unless otherw�ise terminated as provided below, this Agreement
shall automatic be renewed for an additional twelve (12)month term, The terms and conditions
Agreement for Indigent Criminal Defense-6
of the renewal term shall be identical to the terms and conditions of the last year of the original
term.
3.1 Termination for Cause. This Agreement may be terminated by�either
party for cause for violation af any material term of this Agreement. "Material term shall
include any vialation indicating a failure to provide representation in accordance with the
rules of the Court and the ethical obligations established by the Washington State Bar
Association; a violation of the Standasds; violation of Section 5 relating to insurance;
conviction of a criminal charge; or a finding that the license of the Attorney, Qr a,ny
att4rney providing service under this Agreement, has been suspended or revoked. Any
violation of the other provisions of this Agreemerrt shall be subject to cure.Written notice
a£ Agreement violation sha11 be pravided to tlie Attorney who shall have ten (10)
business days to correct the violation. Failure to correct the violation will give rise to
tetmination for cause at the City's discretion. In lieu of terminating this Agreement, the
City may agree in vvriting to alterttative corrective measures,
3.2 Temiination 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 ations Survive Terminarion. 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 caurt 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 mo�ion to withdra,yv and appoint substitute counsel
(acceptable to the City} is entered on each outs#anding case, Cflmpensation for
substitute cnunsel shall be the responsibility of the Attvrney and not the City, and
the substituting attorney must agree in writing to be bound by tl2e applicable terms
of this agreement prior to substitution_
3.3.2 The pravisions of Section 1 "Scape of Services, Standards and
Warranty'; and this Section 3.3 shall survive termination as ta the Attorney. The
City shall remain bound by the provisions of Section 2.5 "Payments in Addition
to the Ba�e Compensation" with respect ta cases concluded after the termination
of this Agreement.
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,hottorably
Agreement for Indigent Criminal Defense-7
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
discrimin�te against any person who is qualified and available to perform the work to wluch the
employment relates, or in the provision of services under this Agreement.
5. Insarance, The Attomey shall procure and maintain for the duration of this
agreement insurance against claims for injuries to persons oz properiy which may arise from or
in connection with the performance of work hereunder by the Attorney, or the agents,
representaxives, employees,or subcontractors of the Attorney.
5.1 Minimum Sc e of Insurance. Attarney shall obtain insurance of the
types described below:
5.1.1 Commercial General Liability insurance shall be written on ISO
occurrence form CG 00 O1 and shall cover liability arising from prernises,
operations, independent contractors and personal injury and advertisin in'
The City shall be named as an insured under the Attorney's Commercial General
Liability insurance policy with respect to the work performed for the City.
5.1.2 Workers' Compensatian 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] $1,000,00�each occurrence;
(X] $2,000,000 general aggregate;or
� a $ each occurrence;and $ general aggregate
Professional Liability insurance shall be written with limits na less than:
[7�] $1,000,000 per claim;
[�] $1,000,000 policy aggregate limit; or
� � $ per claim; and$ per policy aggregate limit.
5.3 Other Insurance Provisians. The insurance policies are to contain, or be
endorsed to contain, the following provisions for Automobile Liability, Professional
Liability,and Commercial General Liability insurance:
Agreement for Indigent Criminal Defense-g
5.3.1 1'he Attorney's insurance coverage shall be primacy insuran�e as
respects the City. Any insurance, self-insurance, or insurance pool coverage
mainta.ined by the City shall be excess of the Attorney's insurance and shall not
contribute with it.
5.3.2 The Attomey's insurance shall be endorsed ta state that coverage
shall not be cancelled by either party, except after thiriy (30) days prior written
notice by certified mail,retum receipt requested,has been given ta the City.
5.4 Acce tabilit of Insurers. Insurance is tfl be placed with insurers with a
current A.M. Best rating af not less than A: VII.
5.5 Verification of Coveraee. Attomey shall fiunish 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 b Attorne . Tn addition to the responsibilities mentioned in
5ection 1 above, the Standards for Indigent Defense (SID) and Certification and Compliance
approved by the Washington Supreme Court by its Order of September 7, 2012 found at CrRLJ
3.1, the Attorney shall c�mplete seven (7) hours of continuing legal education within each
calendar yeaz of this Agreemeat in courses relating to public defense practice including, but not
limited to, consequences of the conviction or adjudication, including possible immigration
consequences and a possibility of civil commitrnent proceedings based upon a criminal
conviction; statutes, Court Rnles, Constitutional provisions, and case law relevant to public
defense practice; and such other cowses and study to maintain the qualification familiarity as
required under Standard 14.1. These seven {'n hours of continwing 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 eomply with all
Federal, State and Ciry laws,ordinances,rules and regulations which are applicable to Attorney's
business, equipment, and personnel engaged in operations cavered by this Agreement or
accruing aut of the performance of such operations.
7• Work Performed at Attorne 's Risk. Attomey shall be responsible far the
safety of its employees, agents, and subcontractors in the performanae of work hereunder, and
shall take a11 prot�ctions 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, salazies and benefits required by law and provide for taxes, withholding
and other employment related charges,taxes or fees in accorclance with law and IRS regulations.
g. Personal Services No Subcontractin . This Agreement has been entered into in
consideration of the Attorney's particular skills, qualifications, experience,and ability to meet the
Agreement for Indigent Criminal Defense_9
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 refi�sal 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 City shall be void.
9• Mod�ffication. No waiver, alterarion or modification of any of the pro�isions 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 provisio�ns in terms of this Agreement, together
with any exhibit attached hereto, shall supersede a11 prior verbal statements of any officer or
other representative of the City, and such statement(s) shall not be ef�ective or construed as
entering into or formin�a part af, or altering in any tnanner whatsoever,this Agreement.
11. Written Notice. All communications regazding 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 ceriified 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:
��' Attorney:
Zach Ratkai,Director Michael Anthoni N
Administrative&Communi Services �y�n
�3' 1o3b N. Center Parkway,
City of Pasco Kennewick, WA 99336
525 Narth 3'�Ave MichaelNlaw@gmail.com
ratkaiz asco-wa, ov S�9_61 g_gg9�
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 covenant,s,agreements, or options,and the same shall be and remain in fitll force and effect.
13. Resolutions of Di� utes Governin I,�w, Should any dispute�
misunderstanding or conflict arise as to the terms or canditions contained in this Agreement,the
matter shall be referred to the City Manager,whose decision shall be final. Any appeal&om the
decision of the City Mauager 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 J�'Y �� upon trial de novo; venue shall be placed in Pasco, Franklin County, Washington
Superior Court,the laws of the State of Washin g ton sha l l a pp ly; an d t he prevailing party shau be
entitled to its reasonable attorney fe�s and cost as additiona.l awazd and judgrnent against the
other. Provided, however, that any complaint regarding any violation of the Standards or which
relate to any manner whatsoever to trial strategy or an ongoing case, shall be refeired to the
Agreement for Indigent Griminai Defense- 10
Judge of the Municipal Court or to the Washington State Bar Association as appropriate.
Nothing herein shall be construed to obligate, require or permit the City, its officers, agents, or
employees to inquire into any privileged comnrunication betwcen the Attarney and any indigent
defendant. This Agreement shall be govern�d by and construed in accordanee with the laws of
the State of Washington and the ru(es of the Washington Supreme Court as applicable.
IN WITNESS WHEREOF, the parties have executed this Agreemcnt on the� day
of ��t�Q r,.�l�'I� . 20�.
C1TY: ��`S� V
ATTORNEY:
� `i ._��' ,��
, �.
Zach atkai,Direc Michael .Anthoni Nguyen
Administrative&Community Services
Approved as to Fomi:
Kerr Fer�uson .aw, C �
City Attorney
Agreemcnt for Indigent Criminal nefcnsc- 11