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HomeMy WebLinkAbout2022-04-05 - Tony DiTommaso and Kottkkamp, Yedinak, & Esworthy Pllc - General Agreements / General Service Agreements Contract for the Provision of Legal Services Page 1 4CA8388.DOC CONTRACT FOR THE PROVISION LEGAL SERVICES This Contract is entered into effective 1 May, 2022 between the City of East Wenatchee (“the City”), a municipal corporation of the State of Washington and the Law Offices of Tony DiTommaso and Kottkamp, Yedinak & Esworthy, PLLC (collectively the “Contractors” or independently “Contractor”). RECITALS: 1. Contractors are licensed to practice law in the state of Washington and experienced criminal defense attorneys; 2. The City has an obligation to provide for the delivery of public defense services to indigent defendants who appear in the City of East Wenatchee municipal court; 3. Contractors and the City desire to enter into a contractual agreement for the provision of legal defense services to indigent criminal defendants and on other matters where a court appointed attorney in the City of East Wenatchee Municipal Court is required; and 4. Contractors have demonstrated the ability to meet accepted professional standards and the qualifications required of public defenders in the state of Washington. NOW, THEREFORE, in consideration of the mutual benefits to be derived, the promises and covenants contained herein, and other good and valuable consideration, the parties contract and agree as follows: I. DEFINITIONS AND NATURE OF WORK The following provisions are controlling in this Contract, notwithstanding any other provision to the contrary: A. DEFINITIONS 1. “Case”. A “case” commences upon appointment by the East Wenatchee Municipal Court judge. 2. “Indigent Person” means any person unable to afford to hire or retain legal counsel as determined by the East Wenatchee Municipal Court judge, applying current case law, regulations, statutes, and/or applicable Court Rules. Should a Contractor determine a defendant is not eligible for assigned counsel, the Contractor will advise the Court and move to withdraw from the case. Contract for the Provision of Legal Services Page 2 4CA8388.DOC 3. “Staff Attorney” means any attorney who is an employee of Contractor performing service under the Contract. 4. “Court” or “Municipal Court” means the East Wenatchee Municipal Court. 5. “Standards of Indigent Defense” means those standards and guidelines of the Washington State Bar Association’s Standards for Incident Defense Services (June 3, 2011), as adopted and amended by Washington State Supreme Court Order 25700 –A- 1004, and any amendments to those standards. B. NATURE OF WORK That during the period of this Contract, Contractors shall provide legal representation for all indigent criminal defendants and suspects in Municipal Court who have been found by the Municipal Court to be indigent and qualify for court-appointed representation. It is the intent of the parties that Contractors provide legal services in all situations, civil and/or criminal, that Municipal Court appoints an attorney to represent an indigent individual or individuals. II. TERMS AND CONDITIONS OF CONTRACT A. TERM This Contract is to take effect May 1, 2022, and is to continue in full force and effect until December 31, 2023, unless terminated as allowed by this Agreement. B. COMPENSATION AND COSTS. 1. Compensation for services rendered shall be $12,155.00 in total per month, with one half ($6,077.50) paid to Tony DiTommaso Law Offices and one half ($6,077.50) paid to Kottkamp, Yedinak & Esworthy, PLLC. Monthly compensation will begin at this rate May 1, 2022. A payment of $952 ($476 each) shall be made on or before April 1, 2022 for retroactive compensation at this rate from January 1 to April 30, 2022. Upon final approval of the annexation of additional Douglas County property expected to take place in July, 2022, the compensation shall be increased by $1093.98, or $546.99 each. Compensation at that point will be $6,624.49 for each law firm and will begin immediately upon full approval of the annexation, with the increase prorated for the month of full approval. 2. For the period January 1, 2023 through December 31, 2023, the compensation for services rendered shall be the amount of compensation paid as of December 31, 2022, increased by the 2022 annual change in the consumer price index for all urban consumers, Seattle – Tacoma – Contract for the Provision of Legal Services Page 3 4CA8388.DOC Bellevue, Washington region, as published by the United States Bureau of Labor Statistics. 3. Contractors shall be responsible for paying all costs of their operations from the above remuneration as set forth herein except as otherwise agreed to. 4. The compensation paid includes the cost of filing of an appeal from Municipal Court to Superior Court. 5. The City will make payment to the Contractors monthly. 6. Contractors may request that the Municipal Court appoint an investigator, expert witness or interpreter. In the event that the Municipal Court makes such appointment, the City shall pay the reasonable costs for those services. 7. Costs for service of process shall be reimbursed by the City upon submission of and invoice by Contractor. C. DUTIES AND RESPONSIBILITIES OF CONTRACTOR. 1. Contractors must provide legal representation to a defendant for whom they have accepted assignment for all stages of the criminal proceedings through sentencing, dismissal or the filing of a notice of appeal to the Superior Court if filed. Provided, however, that Contractors representation shall cease upon the occurrence of any of the following: a. The filing of a notice of appearance or substitution of counsel by any other legal counsel as approved by the Municipal Court; b. A Defendant’s expressed intention to proceed pro se and the Municipal Court’s termination of representation by Contractor; c. Any order from the Municipal Court allowing withdrawal of Contractor; or d. The filing of a notice of appeal. If circumstances arise requiring Contractor to withdraw from representation, Contractor obligation to provide defense shall terminate upon Municipal Court approval of the withdrawal. 2. Contractor shall attend the "Preliminary Appearance Calendar" for the Municipal Court and communicate with each defendant charged with a violation of the East Wenatchee City Code regarding basic information, to include but not limited to, informing each defendant of the crime or crimes charged, the elements of the crime or crimes, the maximum penalty, the Contract for the Provision of Legal Services Page 4 4CA8388.DOC mandatory minimum penalty, if any, and the right to be appointed an attorney. Contractors shall not be required to make a formal appearance as defined by CrRLJ4.1(g) at the Preliminary Appearance calendar. 3. Contractor shall provide legal advice, pursuant to CrRLJ 3.1(c)(2), upon request of the person arrested and in custody, but not yet arranged, for crimes subject to the jurisdiction of the Court (including that the crime occurred within the East Wenatchee city limits). 4. Defense services shall be provided to all Clients in a professional and skilled manner, consistent with minimum standards set forth by the Rules of Professional Conduct, the Standards for Indigent Defense and case law and applicable court rules defining the duties of attorneys and the rights of defendants and suspects in criminal cases. Contractors’ primary and most fundamental responsibility is to promote and protect the best interests of the Client. 3. Contractor is to communicate with assigned incarcerated clients in a timely manner. This means Contractor should communicate with clients within 24 hours of the time the appointment is made known to Contractor when possible, but not less than 48 from the appointment except in extraordinary individual circumstances which make it not possible for Contractor to do so. The Contractor should send a representative to see the client if the Contractor is unable to do so within 24 hours of notification of the appointments. 4. The City shall provide Contractors with a single cell phone for their joint use so they can be reached for “critical stage” advice to defendants, such as during a police investigation or arrest. 5. Contractors must provide the City on a quarterly basis (April 15 for quarter 1, July 15 for quarter 2, October 15 for quarter 3, January 15 for quarter 4) statistics for all cases assigned. The statistics must include: (1) name of client; (2) case number; (3) charge; (4) disposition (plea, bench or jury trial); and (5) whether an appeal was filed. D. CASELOAD LIMITS. The caseload of Contractor and those employed by Contractor shall allow each attorney to give each client the time and effort necessary to ensure effective representation. The Contractor should not accept workloads that, by reason of their excessive size, interfere with the rendering of quality representation. The caseload of each attorney employed by Contractor shall be limited pursuant to the Standards for Indigent Defense (currently no more than 400 cases per year per attorney). Contract for the Provision of Legal Services Page 5 4CA8388.DOC E. ADMINISTRATIVE COSTS. Contractors shall make arrangements for interpreters needed for communication with clients in all other circumstances not involving presentation of the defense case. Contractors shall be responsible for paying all expenses for such out-of-court interpreters. Contractor shall provide the ordinary clerical services necessary for adequate representation of its Clients. Contractor shall maintain at least one paid employee and office and telephone for the purposes of administering the day-to-day affairs of the duties of the attorneys under this Contract. Contractors are free to employ additional attorneys as the need arises during performance of this Contract. F. SUPERVISION Contractors shall assign only such cases to staff attorneys as that attorney is qualified by training and experience to handle and qualified under the Standards for Indigent Defense. G. CAUSE FOR TERMINATION OF DEFENDER SERVICES AND REMOVAL OF ATTORNEY Termination of this Contract should only be for “just cause.” “Just cause” shall include, without limitation, the failure of an attorney to render adequate representation to Clients; the willful disregard of the rights and best interests of the Client; and/or the willful disregard of the standards herein addressed; and/or Contractor’s failure to comply with the terms and conditions of this Contract. Just cause should be established by final judgment of a court with jurisdiction or pursuant to the arbitration provisions of section Q below. The termination of the employment of any staff attorney, or the removal of an attorney from representation of a Client, is solely within the authority of Contractors. However, City shall not be required to continue making payments upon a judicial determination that Contractor or a staff attorney is not acceptable to the appointing court. The representation in an individual case establishes an inviolable attorney-client relationship. Removal of counsel from representation therefore should ordinarily not occur over the objection of both the attorney and the Client. This Contract may also be terminated at any time by the mutual written consent of the parties. H. OBLIGATIONS ON TERMINATION Upon termination of this Contract, Contractors obligation to provide representation shall cease upon the City's hiring of other legal counsel to provide representation to a defendant for whom Contractor has previously accepted assignment and provided representation. A notice of Contract for the Provision of Legal Services Page 6 4CA8388.DOC substitution of the new counsel and withdrawal of Contractor shall be filed and must be approved by the Municipal Court. Contractor shall assist in transferring all relevant files and materials to the newly assigned defense counsel. In the event that the City does not appoint other legal counsel following termination of this Contract, or if the Municipal Court does not approve substitution, Contractor shall continue to provide representation and shall be paid at a rate of $125 per hour. In that even, Contractor shall provide an accounting for all time spent in representation following termination of the Contract. I NONDISCRIMINATION Contractor shall not discriminate against any employee, applicant for employment or subcontractor because of race, color, sexual orientation, handicap, age, religion, sex, or national origin. No person in the United States shall, on the ground of race, color, sexual orientation, handicap, age, religion, sex, or national origin, be excluded from participation in, be denied the benefits of, or be subject to unlawful discrimination through any activity made possible by or resulting from this Contract. Contractor shall comply with all requirements imposed by or pursuant to Civil Rights Act of 1964, and subsequent State and Federal enactments. J. CONFLICTS OF INTEREST 1. Financial Interests. No officer, employee, or agent of the City shall have any personal and/or financial interest, direct or indirect, in this Contract. Contractor shall take appropriate steps to assure compliance with this requirement. 2. Attorneys – Reservation Regarding Representation. Contractor, on behalf of its attorneys, reserves the right to decline to advise or represent any indigent or otherwise eligible person on the basis of actual or potential legal, ethical, or professional conflict of interest and with the consent of the Court may withdraw from representing any particular person for good cause shown. In such event, Contractor shall immediately inform the appropriate Court in writing and/or “on the record” of such declination and the specific reason therefore, and will request that appointment of other counsel. When possible, Contractors shall refer clients one to the other in the event it becomes necessary to withdraw from representation. K. WARRANTY OF AUTHORITY Contractor warrants that it has the authority to enter into and execute this Contract, and will defend any disciplinary or judicial proceedings brought against Contractors or the City, challenging same as an unauthorized practice of law, or questioning its right and authority to execute this Contract. Contractor acknowledges that this Contract is made pursuant to and in express reliance upon this warranty. Contract for the Provision of Legal Services Page 7 4CA8388.DOC L. RECORDS RETENTION Records of all matters covered by this Contract shall be maintained by Contractor in accordance with requirements prescribed by the State Public Records Act, City regulations and applicable courts. Except as otherwise authorized by City, such records shall be maintained for a period of not less than three (3) years after closure of each case or termination of this Contract, whichever is later. In no event is Contractor and/or subcontractor required by this Contract to keep records over five (5) years. The City will provide Contractor with one (1) copy of all reports, etc., for client’s files, at no expense to Contractor. At expiration or termination of the Contract, Contractor shall deliver to whomever designated by City all Client files on pending matters upon receipt of written consent from the Client. M. HOLD HARMLESS AND INDEMNIFICATION With respect to the obligation and activities carried out under this Contract, Contractor agrees to indemnify, or to defend and hold the City, its elected and appointed officers, employees and agents harmless, at the City’s option, from and against any loss, expense, attorney’s fees, other costs, liability or claims arising wholly or partially out of any error or omission, negligence or intentional tort on the part of any employee, official, or agent of Contractor, including without limitation, sub-contracting attorneys, whether direct or indirect, in the performance of this Contract, other than those actions on the part of the officials, employees or agents of the City. In the event any suit or legal proceeding shall be brought against the City or any of its officers or employees, at any time, on account of or by reason of any act, action, neglect, omission, or default of Contractor and/or anyone acting for, on behalf of, or at the direction of Contractor, including without limitation, independent, sub-contracting attorneys, Contractor hereby covenants and agrees to assume the defense thereof and to defend the same at Contractor’s own expense and to pay any and all cost, charges, attorney fees and other expenses and any and all judgments that may be incurred by or obtained against the City or any of its officers, employees, or agents in such suits or other proceedings. N. PROFESSIONAL LIABILITY INSURANCE. During the term of this Contract, and for liability originating from this Contract, Contractor and all persons acting for and on behalf of the Contractor (including without limitation independent subcontractors) shall maintain professional liability insurance coverage, including without limitation, errors and omissions, negligence, intentional torts, and punitive damages. The aforementioned insurance shall be obtained from any insurance company authorized to do business in the State of Washington and shall have liability limits of no less than One Million Dollars ($1,000,000) per claim and One Million Dollars ($1,000,000) in the aggregate. Within thirty (30) days of signature of the last party signing this Contract, Contractor shall submit evidence that such insurance is in full force and effect, and that such insurance will not be canceled during the time period Contractor has to fully execute all of the terms and conditions of this Contract. Contractor’s coverage of liability for events accruing during this Contract shall extend after the Contract is terminated by its terms or order of court with jurisdiction. Said insurance company shall be required to give the City written notice within Contract for the Provision of Legal Services Page 8 4CA8388.DOC seventy-two (72) hours if the policy is canceled or otherwise terminated for any reason, including without limitation, non-payment of premium. O. INTEGRATED DOCUMENT This Contract embodies the entirety of the agreement between the City and Contractors, its terms and conditions and supersedes any and all other agreements, contracts and understandings, written or oral. No verbal agreements, conversations, understandings, or writings with any officer, agent, or employee of the City prior to the execution of this Contract shall affect or modify any of the terms, conditions, or obligations contained in any documents comprising this Contract. Any such verbal agreements, conversations, understandings, or writings shall be considered as unofficial and in no way binding upon the City. P. WHEN RIGHTS AND REMEDIES ARE NOT WAIVED In no event shall any payment by the City or acceptance of payment by Contractors constitute or be construed to be a waiver by such party of any breach of contract, covenant, or default which may then exist on the part of the other. The making or acceptance of any such payment while any such breach or default shall exist shall in no way impair or prejudice any right or remedy available with respect to such breach or default. No failure of the City or Contractors to insist on the strictest performance of any term of this Contract shall constitute a waiver of any such term or an abandonment of this Contract. Q. SEVERABILITY OF PROVISIONS If any term, covenant, condition, or provision of this Contract is held by a court of competent jurisdiction, arbitrator or other reviewing body with jurisdiction, to be void, invalid, or unenforceable, the remainder of the Contract, if it would then continue to conform to the terms and requirements of applicable law, shall continue in full force and effect and shall in no way be affected, impaired or invalidated thereby. R. DISPUTES – ARBITRATION Disputes or claims arising under this Contract between the City and Contractor shall initially be resolved by consultation between Contractor(s) and the City Mayor. If resolution of such dispute or claim is not obtained within fifteen (15) days of such consultation, the proposal shall be submitted to binding arbitration using an arbitrator agreed to by City and the Contractor(s). In the event that the City and the Contractors cannot agree on an arbitrator, the arbitrator shall be appointed by the presiding judge of the Douglas County Superior Court. Any arbitration shall be governed by the rules and procedures of the Washington Arbitration Act, RCW 7.04A.