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HomeMy WebLinkAboutMark Cano Indigent Defense Attorney - Probation Deterredf FOR INDIGENT CRIMINAL DEFENSE FOR PROBATION CASES AND ASSIGNED DEFERRED DISPOSSITION CASES PERSONAL SERVICES AGREEMENT 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 Paso Municipal Court (hereinafter "Municipal Court"); and I WHEREAS, Mark Cano dba Cano Law, PLLC,(hereinafter "Attorney") is a licensed attorney in gooid 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 therequirements of RCW 10.101.030. NOW, THEREFORE, I IN CONSIDERATION OF THE MUTUAL COVENANTS CONTAINED HEREIN, it is agreed as fellows: 1. a J 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 Qqf September 7, 2012, found at CrRLJ 3.1, and as may thereafter be amended, includicig required consultation with incarcerated and non-incarcerated defendants. 11.2 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 IwatYants that he/she and every attorney employed by the Attorney to perform service§ under this Agreement has read and is fully familiar with the provisions of the W n Supreme Court Rules and the Standards, including the qualifications prom Standard 14, as adopted by the City; and Wilbur vs. City of Mount Vernon, No. C41 (December 2013). 1.3 Compliance with the above Standards goes to the essence of this AgreeRient. The Attorney, and every attorney performing services under this Agreement, shall certify compliance quarterly with the Municipal Court on the form established for that puipose by CrRJ 3.1. The Attorney will collect and maintain data and report to the City's Defense Contract Administrator without violating client privileged ations, the as follows: Agreement for Probation Indigent Criminal Defense - 1 1.4.1 Monthly report the number of cases assigned during the period andthetimespentoneachcase; I 1.4.2 Monthly report the disposition of cases assigned, indicating thecumberofcasesdismissed, the number of cases in which charges were reduced, xhe number of cases tried (bench versus jury trials), and the number of cases disposed of by plea; i 1.4.3 Monthly report the number of cases in which a motion wasbrought; 1.4.4 Monthly report the number of cases in which an investigator, ter, or other outside assistance, was utilized; 1.4.5 Monthly report the number of cases which were set for trial but for the defendant failed to appear; and 1.4.6 Annually report the number and type of all outside cases that are pursuant to this Agreement, that are taken by Attorney and by any attorney orming services under this Agreement. 5 Attorneys who provide public defense services must limit their privately work as not to exceed the case limits as required by the Standards. R.6 The Attorney further warrants that all infrastructure, support, admini alive services, computerized legal research and systems necessary to comply with t* Standards, is available to the Attorney, and will further notify the City immeditely if unable or fails to meet the required Standards. 3 The Attorney agrees to and shall represent all persons whom Attorney is appointed to represent hereunder with the same skill and commitment as Attorney exercisers 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 proceedings. 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 court, including the filing request for indigent public counsel. i Agreement for J'robation Indigent Criminal Defense - 2 1.8 The Attorney 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 appointed to an "in custody" case (i.e., a case in which the person is confined/incarcemted), Attorney should use best efforts to meet face-to-face within three 3) business days of Attorney receiving the appointment, or sooner if the circumstances of a patiticular case reasonably require that Attorney make earlier initial contact with the person. 1.9 The Attorney agrees to maintain reasonably appropriate contact/communications with assigned clients so as to keep them fully apprised as to the status ;ofof their case (with the specific manner and frequency of such contacdr,ommunications left entirely to Attorney's professional judgement); and Attorneyshouldusebesteffortstoapprisetheclientofanynewdevelopmentintheircasewithin three (3) business days of Attorney leaming 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, withregardtoanycourthearinginvolvingaclient, Attorney should contact such client preferably in-person or at least via telephone) to discuss the case and the purpose of the hearing I no later than one (1) business day prior to the hearing date. Attorney shall compile 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 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. 1.10 The Attorney agrees to reasonable use the City's contracted Spanish interpreisr to communicate with Spanish speaking clients prior to hearings and trials. 1.11 The Attorney agrees to make the same certification reporting as is required in Section 1.3, to the Indigent Defense Contract Administrator. Quarterly Certification of compli,nce with Standards required by CrRJ 3.1(d)(4) i.12 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 providelto each new client upon case assignment, a Letter of Introduction that identifies Attome's weekly open office hours and phone hours. Further, the Attorney agrees to reserve Pme solely to meet in-person with clients under this Agreement for a minimum of 4 hours !each week and agrees to specify those hours on said Letter of Introduction. Upon any chainge in office or phone hours, Attorney shall provide an update to the Court, the Indigent Defense Contract Administrator, and all active clients, within thirty (30) days of said change. 2. Agreement for Probation Indigent Criminal Defense - 3 2.1 The City shall pay to the Attorney on a monthly basis, for servicesdunderthisAgreementseventyfivedollars ($75.00) per case as defined in 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 be made not later than thirty (30) days after the receipt of invoice, subject to approval of invoice by City. 7.2 Case Counts. For the purpose of this Agreement, a "case" is defined as the assignment of a case by the Court naming a person as a defendant or respondent to which an attorney is appointed to represent the defendant in a contested probation or a deferred disposition hearing. Contested deferred disposition hearings are cases placed on a Deferked Prosecution, a Deferred Sentence or a Stipulated Order of Continuance, in which the Court is seeking revocation and sentencing for violation of the terms or condititjns of the deferred disposition. 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. The maximum cases fbk which defense services shall be provided during any 12 -month period during thetermofithisAgreementshallbe100casesascalculatedandcertifiedbytheAttorneyin 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 performing serviceunder 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 Iaw. 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 end adopted by the City, which adoption shall not affect the terms of this 2.3 Base Compensation. Except as expressly provided in Section 2.5 below, Attorneys shall be responsible for paying all administrative expenses of their office or firm. Stich 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 overhead services necessary to comply with the established standards is included in the base payment provided in Section 2.1 above. 2.4 Payments in Addition to the Base Comvensation. The City shall pay the following case expenses when reasonably incurred and approved by the Municipal Court or Indigent Defense Contract Administrator from funds available for that purpose: Agreement for Probation Indigent Criminal Defense - 4 2.4.1 Discovery. Discovery shall be provided in accordance with law and Court Rule by the City Prosecutor. 2.4.2 Preauthorized Non-Routine Expenses. Non-routine case expenses requested by Attorney must be first authorized by order of the Municipal Court or I pproval 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; Expert witness fees and expenses; iii) Interpreters for languages not commonly spoke in the City or nterpreters for services other than attorney/client communication; iv) Forensic and other scientific tests; i 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 property 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 salary or expenses of law gnforeement officers required to accompany incarcerated witnesses; 2.4.4 Copying Client Files. The cost, if it exceeds $150.00, 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 rial; 2.4.5 Copving Direct AMal Transcripts for RALJ Appeals. The cost, if it exceeds $100.00, of making copies of direct appeal transcripts for I epresentation in post -conviction relief cases. Attorney is limited to no more than two copies. Agreement for Probation Indigent Criminal Defense - 5 I i i I 2.4.6 Records. Medical, school, birth, DMV, and other similar records, and 911 and emergency communication recordings and logs; and 2.4.7 Process Service. The reasonable cost for the service of a subpoena. 2.4.8 Private Investigation 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 Attorney shall within five (5) business day email notification to the IDCA and PI that no further investigation is necessary. 2.5 Renegotiation Due to Change in Rule or Standard. This Agreement mayberenegotiatedattheoptionofeitherpartyiftheWashingtonStateSupremeCourt, 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 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 (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 15 (fifteen) months commencing on the l st da} of October 2019 and ending on 315 day of December 2020 unless sooner terminated as 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 Termination for Cause. This Agreement may be terminated by either party fc r 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 Hiles of the Court and the ethical obligations established by the Washington State Bar Association; a violation of the Standards; violation of Section 5 relating to insurance; conviction of a criminal charge; or a fording 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) Agreement for Probation Indigent Criminal Defense - 6 business days to correct the violatiorL 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 without Cause. This Agreement may be terminated by either party atany time without cause upon ninety (90) days advanced written notice to the other party. I 3.3 Obligations 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, ttomey 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. However, on cases that have not concluded because the defendant has been on warrant status for ninety (90) consecutive days, the case jvill be re -assigned to another Attorney upon the determination that the defendant still qualifies for indigent defense. 3.3.2 The provisions of Section 1 "Scope of Services, Standards and AJarranty"; and this Section 3.3 shall survive termination as to the Attorney. TheCityshallremainboundbytheprovisionsofSection2.5 "Payments in Addition to the Base Compensation" with respect to cases concluded after the termination of this Agreement. A. 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 ins4ance 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, representativesil employees, or subcontractors of the Attorney. 1 Minimum Scope 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. Agreement for ) Mbation Indigent Criminal Defense - 7 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' 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'sprofession. 5.2 Minimum Amounts of Insurance. Attorney shall maintain the followinginsurancelimits: Commercial General Liability insurance shall be written with limits no less than: X ] $1,000,000 each occurrence; X 1 $2,000,000 general aggregate; or each occurrence; and $ general aggregate Professional Liability insurance shall be written with limits no less than: X 1 $1,000,000 per claim; X 1 $1,000,000 policy aggregate limit; or 1 $ per claim; and $ 1 per policy aggregate limit. 5.3 Other Insurance Provisions. The insurance policies are to contain, or be endorsed to contain, the following provisions for 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. Agreement for Probation Indigent Criminal Defense - 8 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. 4 Accotabili1y of Insurers. Insurance is to be placed with insurers with acurrentAk.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 Attorney. 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 conviction; statutes, Court Rules, Constitutional provisions, and ease 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 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 owrl 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. 8. Personal Serviees, No Subcontracting. This Agreement has been entered into in consideration of the Attorney's particular skills, qualifications, experience, and ability to meet the Standards incoporated 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. Agreement for Probation Indigent Criminal Defense - 9 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 representativesof the City and the Attorney. 10. Entire Agreement. 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, forming 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 shah 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: Attorney: Zach Ratkai, Director Mark Cano Administrative & Community Services Cano Law, PLLC City of Pasco 7101 W. Hood Pl. SuiteB202 525 North 3rd Ave Kennewick, WA, 99336 ratkaiz&asco-wa.aov canonmark8l@gmail.com 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 ore 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. 13. 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. 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 Superior Court; the laws of the State of Washington shall apply; and the prevailing party shall be entitled to its reasonable attorney fees and cost as additional award and judgment 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 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. 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. Agreement for Probation Indigent Criminal Defense - 10 IN WITNESS WHEREOF, the parties have executed this Agreement on the g day of .` 201. CITY: Zach i az recto Administrative ,& Community Services Approved as to Form: Eric Fer on, :City Attorney Agreement for Probation Indigent Criminal Defense - l I ATTORNEY: Mark Cano Cano Law,