Public defenders need to be juggling fewer cases per year, says the state’s bar association.
In March, the bar adopted new standards suggesting to tighten down how many cases any given attorney can take. They propose a phased implementation of the new standards beginning in July 2025 that ramp up to full effect in 2028. The state’s court system asked the bar, which regulates the legal profession, to recommend new standards.
On Friday, June 7, state Supreme Court Chief Justice Steven González ordered to take public comments on the bar’s proposal. The court will be taking comments until Oct. 31, from the copy of the order obtained by the Tribune.
The new standards would cut caseloads per attorney by around one-half or one-third, depending what kinds of cases they take on: felonies or misdemeanors.
The Washington State Bar Association said through a press release that “these changes will provide public defenders with workable caseloads that allow them to effectively represent the accused,” quoting Jason Schwarz, the bar’s chair of the Council on Public Defense, an advisory council within the bar.
It could frame up a conflict of priorities, though.
Indigent defense is taxpayer-paid out of local government budgets, and they’re already strapped.
The City of Everett, for example, estimates the proposal would require its outside indigent defense firm to add at least three times as many defenders as it currently does, from eight to 24, plus another social worker plus more staff support employees, city attorney David Hall said in late May. Everett’s internal prosecutors would handle 500 cases a year while the contracted firm is handling 150 a year.
Earlier this month, the county’s area mayors and County Executive Dave Somers sent a joint letter to the state Legislature asking it to either give local governments money to either help defray the cost of having more people handling legal defense, or to write up a different set of indigent defense recommendations independent of the bar’s recommendation.
“The immediate needs for funding for additional public defenders and staff and creating and filling a workforce pipeline for these positions are beyond the current capacity of our local governments,” states a copy of the letter obtained by the Tribune through the city of Snohomish.
The Association for Washington Cities (AWC) also registered concerns.
“While AWC supports careful consideration of the caseload standards for indigent defense attorneys, the proposed standards are not financially feasible for local governments,” the AWC said.
The current standards are: 150 felonies per attorney per year; and in most jurisdictions, 300 misdemeanor cases per attorney per year. Juvenile cases are capped at 250.
Tough cookies on the cost, the state bar indicates.
“While the cost of providing effective counsel is significant, it is significant that the WSBA will no longer be looking to public defenders to bear the cost of justice,” Schwarz said in the release. “Implementing these standards will take time and cost, and we hope that all critical stakeholders will convene to resolve these larger concerns in the criminal legal system.”
Why’d it come about?
The bar association was asked to develop the revised standards because of the 2013 decision of Wilbur v. City of Mount Vernon in U.S. District Court, according to Emily Guildner, an attorney representing the city of Snohomish and other cities.
ACLU Washington described that Mount Vernon and Burlington had such deficient public defense systems that a defendant had his Sixth Amendment rights violated. The Sixth, broadly, is the constitutional right to counsel.
These included not having a lot of face time with counsel until the day of court, U.S. District Judge Robert Lasnik wrote. Mr. Wilbur’s attorneys hired for public defense also took private practice clients, and the two attorneys were each bombing through approximately 1,000 public defense cases a year at the time, according to Lasnik’s writeup.
Lasnik wrote the “indigent criminal defendants in Mount Vernon and Burlington are systematically deprived of the assistance of counsel at critical stages of the prosecution and that municipal policymakers have made deliberate choices regarding the funding, contracting, and monitoring of the public defense system that directly and predictably caused the deprivation.”
Related movements at the state court level
In a separate order June 7, Chief Justice González issued an emergency order to temporarily use the WSBA’s revised attorney qualification standards for indigent defense. This is temporary for one year. Any attorneys qualified in the past are still qualified. The revised qualifications add items such as being competent in mental health and substance use issues and knowing if defending their client requires calling in expert witnesses for the defense, having formal training to work with children in juvenile court defense cases, as well as being “familiar with the impact of systemic bias and racism and racial disproportionality in the legal system.”
The decision temporarily supplants what’s known as Standard 14 for the standards in the rulebook.
The bar’s revision weighs the severity of cases to form the caps per attorney. It doesn’t set a hard limit on the number of cases, instead assigning points for felonies and misdemeanors. A felony defender is capped to 47 points, misdemeanor attorneys much larger.
Working six murder cases, at seven points a piece, would closely max out a public defender for the year.
The letter from local mayors does not question the felony points system. They do question if misdemeanors and gross misdemeanors pencil out to that many points.
The revised points system for misdemeanor attorneys is 120 case credits. High misdemeanors are one-and-a-half points, and low misdemeanors are one point each.
The rules also would restrict attorneys from overextending themselves overall and require them to mitigate their workload from being overextended.
Specifically, the rules say, “if the attorney’s caseload or workload prevents providing quality representation, public defense attorneys shall take steps to reduce their caseload, including but not limited to seeking co-counsel, reassignment of cases, or requesting a partial or complete stop to additional case assignments or requesting withdrawal from a case(s).”
However, attorneys or firms could not subcontract the legal services to another attorney without prior approval.
The rule that private attorneys who provide public defense representation limit how much private work they also accept would stay intact.
The generalities of how much they could take on, though, would likely be delimited by the revised smaller limits of public defense cases.
To send comments
To send comments to the state court system about the proposed indigent defense standards changes, write to: P.O. Box 40929, Olympia, Washington 98504-0929 or to supreme@courts.wa.gov
