HomeMy WebLinkAboutIan Sinclair - Indigent Criminal Defense PSA for Conflict CasesAGREEMENT FOR INDIGENT CRIMINAL DEFENSE
PERSONAL SERVICES AGREEMENT FOR CONFLICT CASES
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, Ian Sinclair(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 Warranty.
1.1 The Attorney will be available and provide indigent defense services on
conflict 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 warrants that he/she is and during the tern 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 Washington Supreme Court Rules and the Standards, including the qualifications
provided in Standard 14, as adopted by the City; and Wilbur vs. City of Mount Vernon,
No. CL- 1100RSL (December 2013).
1.3 Compliance with these Standards goes to the essence of this Agreement.
The Attorney, and every attorney and/or intern performing services under this
Agreement, shall certify compliance quarterly with the Municipal Court on the form
established for that purpose by Court Rule.
1.4 The Attorney will collect and maintain data on a monthly basis reporting
to the City without violating client privileged communications, the following:
1.4.1 The number of cases assigned during the period and the time spent
on each case;
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1.4.2 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;
1.4.3 The number of cases in which a motion was brought;
1.4.4 The number of cases in which an investigator, interpreter, or other
outside assistance, was utilized;
1.4.5 The number of cases which were set for trial but for which the
defendant failed to appear; and
1.4.6 The number of outside, private cases and the number and types of
all private practice cases per each attorney.
1.5 Attorneys who provide public defense services must limit their privately
retained work as not to exceed the case limits as required by the Standards.
1.6 The Attorney further 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 unable or fails to meet the required Standards.
2. Comuensation.
2.1 The City shall pay to the Attorney for services rendered under this
Agreement the amount of One Hundred and Fifty Dollars ($150.00) per case during the
term of this Agreement for representation.
Payments shall be made monthly, payable by invoice from said Attorney with the
first monthly payment to be made not later than the 21st day of March, 2017, constituting
compensation for the immediately preceding month; subsequent payments being made
not later than the 30th day of each succeeding month.
2.2 Case Counts. For the purpose of this Agreement, a 'base" 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 provide 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
appointment, and on amendments to such charges including contempt of Court for failure
to pay a fine, appear for trial or hearings, or failure to abide by the terms of probation.
For the purpose of this Agreement, "deferred" or "probation" matters shall mean all
proceedings related to one or more probation or deferred cases arising out of or related to
the same incident or event occurring on not more than two separate dates as determined
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by the Court at the time of appointment, and on amendments to such charges including
contempt of Court for failure to pay a fine, appear for trial or hearings, or failure to abide
by the terms of probation. Solely for the purpose of case counting, probation or deferred
cases shall constitute .25 cases. The maximum cases for which defense services shall be
provided during any 12 -month period during the term of this Agreement shall be 400
cases as calculated, and certified by the Attorney in accordance with the Standards. Upon
adoption of a case weighting criteria by the Supreme 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 Adjustment. As provided in the Standards, case counts may be revised
upwards based upon a variety of factors. Upon the Attorney's request, the City shall
review any particular case with the Attorney to determine whether greater weighting
should be assigned, and upward revisions shall not be unreasonably refused.
2.4 Base Compensation. Except as expressly provided in Section 2.5 below,
the cost of all infrastructure administrative, computerized legal research, support 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.
2.5 Payments in Addition to the Base Compensation. The City shall pay the
following case expenses when reasonably incurred and approved by the Municipal Court
from funds available for that purpose:
2.5.1 Discovery. Discovery shall be provided in accordance with law
and Court Rule by the City Prosecutor. For post -conviction relief cases,
discovery includes the cost to obtain a copy of the defense, prosecuting attorney
making this charge or Court files pertaining to the underlying case.
2.5.2 Preauthorized Non -Routine Expenses. Non -routine case expenses
requested by Attorney and preauthorized by order of the Municipal Court. 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 attorney/client communication;
(rv) Forensic and other scientific tests;
(v) Investigation expenses; and
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(vi) Any other non -routine expenses the Municipal Court finds
necessary and property for the investigation, preparation, and presentation of a
case.
2.5.3 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 required to accompany incarcerated witnesses;
2.5.4 Copying Clients' Files. The cost, if it exceeds $25.00, of providing
one copy of a client's or former client's case file upon client's or client's appellate,
post -conviction relief or habeas corpus attorney's request, or at the request of
counsel appointed to represent the client when the client has been granted a new
trial;
2.5.5 Copying Direct Appeal Transcripts for RALJ Appeals. The cost, if
it exceeds $25.00, of making copies of direct appeal transcripts for representation
in post -conviction relief cases. Attorney is limited to no more than two copies.
2.5.6 Records. Medical, school birth, DMV, and other similar records,
and 911 and emergency communication recordings and logs, when the cost of an
individual item does not exceed $75.00; and
2.5.7 Process Service. The reasonable cost for the service of a
subpoena.
2.6 Renegotiation Due to Increases or Decreases in Case Load. The City and
Attorney shall, at the option of either party, renegotiate this Agreement if there is a
significant increase or decrease in the number of cases assigned. "Significant decrease"
and "significant increase" shall mean a decrease or increase, respectively, of more than
twenty percent (20%) in the number of cases assigned or, in the alternative, a decrease or
increase in the number of cases assigned. At the request of either party, the City and
Attorney will periodically review cases assignment trends, requests for additional credits
and any other matters needed to determine contract compliance or necessary contract
modifications.
2.7 Renegotiation Due to Change in Rule or Standard. This Agreement 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.
2.8 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 City of
the conflict and the City 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
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five percent (51/o) of the assigned cases during any 12 -month period, the City may
terminate this Agreement.
3. Term. The term of this Agreement shall be for a period of twenty-four (24)
months commencing on the 21St day of March, 2017, unless sooner terminated as provided in this
Agreement. Unless otherwise terminated as provided below, this Agreement shall automatic be
renewed for an additional twenty-four (24) 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 (with
appropriate modifications of installment payment dates).
3.1 Termination 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 Association; a violation of the Standards; violation of Section 6 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 violation 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 on Mutual Agreement. Either party may after the first six (6)
months of each term, upon 60 days advance notice to the other, terminate this Agreement,
or within sixty (60) days of the end of any term of this Agreement, give written notice of
their intent not to renew. To facilitate the City securing of alternate services, Attorney
shall continue to take appointed cases for thirty (30) days from the date of its notice of
termination, and continue representation until such cases are adjudicated, or sixty (60)
days beyond the termination date, whichever shall first occur.
3.3 Obligations Survive Termination. In the event of termination of this
Agreement, the following obligations shall survive and continue:
3.3.1 Representation. The compensation established in this Agreement
compensates Attorney for services relating to each and every assigned case.
Therefore, in the event this Agreement is terminated, Attorney will continue to
represent clients on assigned cases until a case is concluded by plea, dismissal, or
conviction on the trial court level or as otherwise ordered by the court.
3.3.2 The provisions of Section 1 "Scope of Services, Standards and
Warranty'; Section 5 "Indemnification'; and this Section 3.3 shall survive
termination as to the Attorney. The City shall remain bound by the provisions of
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Section 2.5 "Payments in Addition to the Base Compensation" with respect to
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, 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 Scope of Insurance. Attorney shall obtain insurance of the
types described below:
5.1.1 Workers' Compensation coverage as required by the Industrial
Insurance laws of the State of Washington, if required by State law.
5.2.2 Professional Liability insurance appropriate to the Attorney's
profession.
5.2 Minimum Amounts of Insurance. Attorney shall maintain Professional
Liability insurance with limits no less than $1,000,000.00 per claim. The policy shall
contain no exclusion for loss or liability relating to a claim of ineffective assistance of
counsel.
5.3 Acceptability of Insurers. Insurance is to be placed with insurers with a
current A.M. Best rating of not less than A:VII.
5.4 Verification of Coverage. 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 Attornev. 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, 2012 found at CrRLJ
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, consequences of the conviction or adjudication, including possible immigration
consequences and a possibility of civil commitment proceedings based upon a criminal
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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. 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. Video Evidence.
7.1 The City may from time to time be in possession of video or audio
recorded evidence relevant to a criminal proceeding in which Attorney represents the
criminal defendant. The City may from time to time provide such relevant video or audio
evidence upon request of Attorney, or as otherwise required by law.
7.2 The Attorney in taking possession of any such evidence recognizes and
agrees to the following terms and conditions:
7.2.1 The video/audio evidence is protected by Federal copyright law.
7.2.2 The video/audio evidence remains the property of the City of
Pasco
7.2.3 The video/audio evidence shall not be used in connection with any
endeavor action other than use as investigative material and evidence in relevant
criminal proceedings.
7.2.4 To make no additional copies of the evidence provided by the City
pursuant to this Agreement, including copying of the evidence to a computer,
computer hard drive, or any other type of storage device or medium including, but
not limited to flash media, video/audio tape, DVD ROM, or CD ROM.
7.2.5 To not publicly disseminate the information provided, including
public displays of the provided audio/video evidence.
7.2.6 To return the video/audio evidence to the City within thirty (30)
days from final disposition of the matter. Where a guilty plea is entered, the plea
date shall be the date of final disposition. Where an appeal is filed, the evidence
will be returned within thirty (30) days of the appeal becoming final.
7.2.7 The video/audio evidence will be delivered to the Attorney in
person or by legal messenger, and can then be returned to the City in the same
matter.
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8. Work Performed at Attorney'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.
9. Personal Services, No Subcontractine. This Agreement has been entered into in
consideration of the Attorney's particular skills, qualifications, experience, and ability to meet the
Standards incorporated in this Agreement. Therefore, 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 City shall be void.
10. 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.
11. Entire Agreement. The written provisions in terns 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 forming a part of, or altering in any manner whatsoever, this Agreement.
12. 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:
Com:
Rick Terway, Director
Administrative & Community Services
City of Pasco
525 North 3`d Ave
Pasco WA 99301
terwayr@pasco-wa.gov
Attorney:
Ian Sinclair
9315 Chapel Hill Blvd Apt H8206
Pasco, WA 99301-8270
206-225-4950
isinclairl981@gmail.com
13. 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 full force and effect.
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14. Resolutions of Disputes. Governing 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. 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 referred to the 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 communication between the Attorney and any indigent defendant. In the event of
any litigation arising out of this Agreement, the prevailing party shall be reimbursed for
reasonable attorney's fees from the other party. This Agreement shall be governed by and
construed in accordance with the laws of the State of Washington and the rules of the
Washington Supreme Court as applicable. Venue for an action arising out of this Agreement
shall be in Pasco, Franklin County, Washington Superior Court.
IN WITNESS WHEREOF, the parties have executed this Agreement on the i day of
rzrrGG� 201_Z.
CITY of PASCO:
Rick Terway, Direqfck
Administrative & Ninnumity Services
Approved as to Form:
Leland B. Kerr, City Attorney
Agreement for Indigent Defense Services - 9
ATTORNEY:
Ian Sinclair WSBA #49913