HomeMy WebLinkAboutMatthew Rutt Indigent Defense Attorney ConflictAGREEMENT FOR INDIGENT CRIMINAL DEFENSE
PERSONAL SERVICES AGREEMENT
FOR RE -ASSIGNMENT, OVERFLOW OR 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, Matthew L. Rutt (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 Warran
1.1 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.
1.2 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 warrants that he/she and every attorney 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 -1 IOORSL (December 2013).
1.3 Compliance with the above Standards goes to the essence of this
Agreement. The Attorney, and every attorney performing services under this Agreement,
shall certify compliance quarterly with the Municipal Court on the form established for
that purpose by CrRJ 3.1.
1.4 The Attorney will collect and maintain data and report to the City's
Indigent Defense Contract Administrator without violating client privileged
communications, the as follows:
Agreement for Indigent Criminal Defense - I
brought;
1.4.1 Monthly report the number of cases assigned during the period and
the time spent on each case;
1.4.2 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;
1.4.3 Monthly report the number of cases in which a motion was
1.4.4 Monthly report the number of cases in which an investigator,
interpreter, or other outside assistance, was utilized;
1.4.5 Monthly report the number of cases which were set for trial but for
which the defendant failed to appear; and
1.4.6 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.
1.5 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.
1.7 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
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.
Agreement for 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/incarcerated), 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 particular 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 of their case (with the specific manner and frequency of such
contact/communications left entirely to Attorney's professional judgement); and Attorney
should use 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
(preferably in-person or at least via telephone) to discuss the case and the purpose of the
hearing 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
interpreter 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
compliance with Standards required by CrRJ 3.1(d)(4)
1.12 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
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 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 change 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. Compensation.
Agreement for Indigent Criminal Defense - 3
2.1 The City shall pay to the Attorney for services rendered under this
Agreement, two hundred dollars ($200.00) 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.
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. 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 '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 or bail
jumping for failure to appear for trial or hearings. For the purpose of this Agreement,
post -conviction revocation hearings on Stipulated Order of Continuances, Deferred
Sentences or Deferred Prosecution shall not be counted as an additional case. Also, post-
conviction sentencing violations for failure to comply with jail, home monitor or work
crew, or failure to pay fines shall not be counted as an additional case. The maximum
cases for which defense services shall be provided during any 12 -month period during the
term of this Agreement shall be 250 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 performing
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
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 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. 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
overhead services necessary to comply with the established standards is included in the
base payment provided in Section 2.1 above.
Agreement for Indigent Criminal Defense - 4
2.4 Payments in Addition to the Base Compensation. 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:
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
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 attorney/client communication;
(iv) Forensic and other scientific tests;
(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
enforcement 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 attomey's request, or at the request of
counsel appointed to represent the client when the client has been granted a new
trial;
Agreement for Indigent Criminal Defense - 5
2.4.5 Copying Direct Appeal Transcripts for RALJ Appeals. The cost, if
it exceeds $100.00, of making copies of direct appeal transcripts for
representation in post -conviction relief cases. Attorney is limited to no more than
two copies.
2.4.6 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 Pl. 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 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 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 -month period, the City may
terminate this Agreement.
3. Term. The term of this Agreement shall be for 15 (fifteen) months commencing
on the 1st day of October 2019 and ending on 31' day of December 31, 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 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
Agreement for Indigent Criminal Defense - 6
State Bar Association; 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 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 maybe terminated by either
party at any time without cause upon ninety (90) days advanced written notice to the
other party.
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,
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. 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.
3.3.2 The provisions of Section 1 "Scope of Services, Standards and
Warranty"; and this Section 3.3 shall survive termination as to the Attorney. The
City shall remain bound by the provisions of 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:
Agreement for Indigent Criminal Defense - 7
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 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'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 ] $1,000,000 policy aggregate limit; or
[ ] $ per claim; and $ 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
Agreement for Indigent Criminal Defense - 8
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 Acceptability 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 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 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 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 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.
8. Personal Services, No Subcontracting. 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
Agreement for Indigent Criminal Defense - 9
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.
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 Aareement. 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 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:
Zach Ratkai, Director
Administrative & Community Services
City of Pasco
525 North 3rd Ave
ratkaiz@pasco-wa.gov
Attorney:
Matthew L Rutt
719 Jadwin Ave, Suite 24
Richland, WA 99352
mlruttattomey@netscape.net
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 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
Agreement for Indigent Criminal Defense - 10
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.
IN WITNESS WHEREOF, the parties have executed this Agreement on the I' day
of9�, c-ra�a,Czl— .20�.
CITY:
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Zach R tkai, Dir or
Administrative & Community Services
Approved as to Form:
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Eric Ferg on, City Attorney
Agreement for Indigent Criminal Defense - I 1
ATTORNEY:
ox)4 A
Matthew L. Rutt