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HomeMy WebLinkAbout2023-05-26 - Krake Law PLLC, Conflict Public Defender Agreement 2023-2024 - General Agreements / General Service Agreements CONTRACT FOR THE PROVISION OF LEGAL SERVICES (Conflicts) May 26, 2023 – December 31, 2024 Contract for the Provision of Legal Services Page 1 4E86691 CONTRACT FOR THE PROVISION OF LEGAL SERVICES (CONFLICTS) RECITALS: WHEREAS, the City of East Wenatchee (“the City”) is a municipal corporation of the State of Washington; and WHEREAS, Krake Law, PLLC (“the Contractor”) is a law firm which employs an Attorney or Attorneys described below, all of whom are licensed to practice law in the State of Washington; and WHEREAS, Washington Courts have mandated Washington cities provide for the delivery of indigent public defense services; and WHEREAS, the above-named parties are desirous of entering into a contractual agreement for the provision of legal defense services to indigent criminal defendants and on other matters where court appointed attorneys in East Wenatchee Municipal Courts are required; and WHEREAS, the Contractor has demonstrated the ability to meet accepted professional standards and the qualifications for provision of indigent defense. 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 direct appointment by a judge of a court with jurisdiction. In proceedings wherein representation is provided for herein and subject to the Contractor’s duty with respect to appeals, termination shall occur upon the entry of a final order by the person or tribunal hearing the proceedings. Upon such termination, representation by Contractor shall cease. Contract for the Provision of Legal Services Page 2 4E86691 2. “Client” means any person Contractor is appointed to represent in the court in which the person has been charged, or where a person is statutorily or otherwise entitled to legal counsel. This term also refers to persons who are being held in custody on probable cause to believe that the person has committed a crime in East Wenatchee, is a “material witness,” or who is being held in custody pursuant to a warrant from East Wenatchee or from another municipality. Persons held in custody without charges and who have not been appointed defense counsel will cease to be a client when released from custody or when they are charged with a crime or with being a fugitive, unless referred to Contractor as described above. The term also may refer to persons who are unrepresented by other counsel regarding specific criminal matters occurring in East Wenatchee. Such persons cease to be a client after such information or legal counsel has been provided, unless appointed to Contractor as described above. 3. “Contractor” means Krake Law, PLLC. 4. “City” means the City of East Wenatchee, Washington. 5. “Indigent Person” means any person unable to afford to hire or retain legal counsel as determined by a court of competent jurisdiction, applying current case law, regulations, statutes, and/or applicable Court Rules. 6. “Court” means East Wenatchee Municipal Court. 7. “Staff Attorney” means the following attorneys who presently are employed by Contractor, and such other attorneys who subsequently are employed by Contractor and approved by the Court to provide legal representation in accordance with this Contract: N/A 8. “Standards of Indigent Defense” means those standards and guidelines of the Washington State Bar Association’s Standards for Indigent 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 During the period of this Contract, Contractor shall provide, on an as-needed and as- assigned basis, legal representation to indigent criminal defendants, suspects and/or material witnesses in East Wenatchee Municipal Court, who have been found by an East Wenatchee Municipal Court to be indigent and qualify for court-appointed representation. Representation will be assigned to Contractor when the contract public defenders for East Wenatchee cannot provide representation because of a conflict of interest. Subject to the foregoing, it is the intent of the parties that Contractor provides legal services when requested in situations, civil and/or criminal, that a Court appoints a conflict attorney to represent an individual or individuals; provided, however, Contractor may decline assignment of representation in specific areas of criminal defense practice. Contractor may also decline assignment of representation of specific Contract for the Provision of Legal Services Page 3 4E86691 clients if Contractor cannot provide legal representation which meets the standards set forth in this Contract. Contractor understands and acknowledges that the City is simultaneously entering into similar contracts with other attorneys and law firms for conflict representation. Assignment of cases shall be on a rotating basis upon those attorneys writing conflict indigent defense pursuant to GR 42. Contractor understands and acknowledges that the City is under no obligation to assign any cases to Contractor. II. TERMS AND CONDITIONS OF CONTRACT A. COMPENSATION 1. Hourly Compensation. Compensation under this Contract is intended to reflect the training and experience of the attorneys assigned. The compensation is intended to reflect the time and labor required to be spent by the attorneys and the degree of professional experience demanded by the case. Contractor compensation shall be computed by multiplying the applicable hourly rate of $90 by the number of hours (in increments of one-tenth) actually and necessarily performed by Contractor in representing clients in accordance with this Contract. Bills should be submitted to the East Wenatchee finance director for payment. In order to receive this compensation the attorney must have their liability insurance certificate on file with East Wenatchee. Billing Address: East Wenatchee Finance Director East Wenatchee City Hall 271 9th Street NE East Wenatchee, WA 98802 2. Billing. Contractor shall maintain accurate and contemporaneous records of time spent by Contractor and each Staff Attorney on cases assigned to Contractor under this Contract. Within the week following the last day of each month, Contractor shall submit to City an itemized billing statement, which shall describe legal services performed by Contractor and time spent performing the individual identified services by each Attorney. Contract for the Provision of Legal Services Page 4 4E86691 Contractor shall not be compensated for administrative time spent by Contractor, including without limitation, time in preparing and reviewing billing records and billing statements. 3. Costs. Contractor shall be responsible for paying all costs of its operation from the above remuneration as set forth herein. Payment warrants will be delivered to Contractor by City for services rendered pursuant to this Contract. B. DUTIES AND RESPONSIBILITIES OF CONTRACTOR. 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. Contractor’s primary and most fundamental responsibility is to promote and protect the best interests of the Client. In the event any provision of this Contract is not in compliance with or is inconsistent with the Standards of Indigent Defense, as amended, then this Contract shall be amended such that it will at all times be in compliance with the Standards of Indigent Defense. Contractor shall discharge the duties and responsibilities herein, pursuant to applicable case law, court rules, rules of professional conduct, and Standards of Indigent Defense. Contractor shall ensure that all Attorneys are aware of his/her obligations and the obligations of Contractor under this Contract. Steve Krake shall be the person to contact should any question arise under the Contract or concerning representation. C. EXPERT WITNESSES AND INTERPRETERS Expert witnesses and interpreters should be used when deemed appropriate by Contractor. Expenses for expert witnesses, in-court interpreters, and other related services necessary for the adequate preparation and presentation of the defense case shall be paid with City funds outside of this Contract; provided, however, Contractor first shall obtain from the applicable court in advance an ex parte order authorizing the expenditure of the funds on the terms and conditions required by the Court. Contractor shall make arrangements for interpreters needed for communication with Clients in all other circumstances not involving presentation in court of the defense case. Contractor shall be responsible for paying all expenses for such out-of-court interpreters. Contract for the Provision of Legal Services Page 5 4E86691 D. ADMINISTRATIVE COSTS Contractor shall be responsible for paying all administrative expenses of its office or firm. Such costs may include law libraries, financial accounting, case management systems and other costs incurred in the day-to-day management of Contractor’s law practice. 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. Contractors are free to employ additional attorneys as the need arises during performance of this Contract. Contractor shall provide the ordinary clerical services necessary for adequate representation of its Clients. Contractor shall maintain at least one paid employee and an office and telephone for the purposes of administering the day-to-day affairs of the duties of the Attorneys providing services under this Contract. E. SUPERVISION Contractor shall accept and assign only such cases as the assigned attorney is qualified by training and experience to handle and qualified under the Standards for Indigent Defense. F. SUBSTITUTION OF COUNSEL Contractor may not subcontract with firms and/or attorneys to provide representation under this Contract and shall remain directly involved in the provision of representation to Clients. G. PRIVATE PRACTICE OF CONTRACTOR The City recognizes that Contractor maintain private law practices. Contractor shall not accept assignment of representation to represent specific indigent persons under this Contract if, for any reason, including without limitation, time demands of Contractor private law practice, vacation, illness, etc., Contractor is unable to provide effective and quality representation to said Client or otherwise comply with the standards contained in this Contract. Attorneys may provide legal services on a fee basis to persons who are not court appointed Clients of Contractor so long as it does not interfere with the efficient performance of the Contractor’s duties and does not conflict with the duties of Contractor under this Contract. Contractor may not be retained by or accept remuneration of any kind from a Client on a specific case in which a court of competent jurisdiction has appointed the Contractor to represent the Client. PROVIDED: the aforementioned attorneys may be retained in situations wherein the appointing court withdraws said appointment, based on new and/or additional financial information. Contract for the Provision of Legal Services Page 6 4E86691 H. QUALIFICATIONS OF ATTORNEYS All attorneys providing services under this Contract shall meet the qualification standards established by the Standards for Indigent Defense, Standard Fourteen. Contractor shall on an annual basis provide names and experience levels of all attorneys who will be providing services under this Contract. It is understood at the making of this Contract that the Attorneys are not qualified under the terms of the present East Wenatchee Resolution No. 2012-126, the Standards for Indigent Defense, and other applicable authority, to provide representation in a death penalty felony case. In the event of a felony case in which the death penalty has been or may be decreed, then the City, in accordance with SPRC 2, will take the necessary steps to provide for a “death penalty qualified” attorney to serve as the “lead” attorney. In the event that the City is required to retain the services of a “death penalty qualified” attorney, Contractor may be asked provide all necessary support services, including without limitation, a “second chair” attorney to provide support to the “lead” chair. I. DISPOSITION OF CLIENT COMPLAINTS The following procedure shall be utilized for responding to Client complaints: Complaints should first be directed to the Attorney providing representation. If the Client feels that he or she has not received an adequate response, Contractor’s Administrator should evaluate the legitimacy of the complaint and, if possible, resolve the complaint. The complaining Client should be informed as to the disposition of his or her complaint within one week. If the Client feels dissatisfied with the evaluation and response received, they should be advised of the right to submit a complaint to the Washington State Bar Association. J. TERMINATION OF DEFENDER SERVICES AND REMOVAL OF ATTORNEY This contract may be terminated at any time by the either Contractor or the City on sixty (60) days written notice. In addition, the City may terminate any representation undertaken under this Contract 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 an arbitrator appointed pursuant to Section IV I of this Contract, or by a court with jurisdiction. The termination of the employment of any Attorney, or the removal of an Attorney from representation of a Client, is solely within the authority of Contractor. 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. Contract for the Provision of Legal Services Page 7 4E86691 K. NONDISCRIMINATION Contractor shall not discriminate against any employee or any applicant for employment 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 the Civil Rights Act of 1964, and subsequent State and Federal enactments. L. 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 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 City approved conflict counsel for such person. Should any question arise, a court of competent jurisdiction shall determine the existence or non-existence of a professional, ethical conflict, in accordance with the applicable court rules, statutes and Washington case law and the terms of this Contract. M. 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 Contractor 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 8 4E86691 Contractor shall continue representation on all cases resulting from appointments made by the applicable court(s) during the period of the former Contract in accordance with the terms and conditions of this Contract. Upon the expiration or sooner termination of this Contract, Contractor, if requested to do so by City, shall complete representation of all clients who have been appointed representation by the applicable court during the period in which this Contract is in effect if representation can be completed within thirty (30) days from the date of expiration or sooner termination of this Contract. In such event, Contractor shall be paid during said thirty (30) day period the hourly rates then in effect under this Contract. In the event a change of venue is granted to a person for whom the attorney is to provide representation pursuant to this Contract, the Contractor shall continue to represent such person in that other court at the hourly rate then in effect under this Contract. N. DUTY TO COOPERATE Contractor shall cooperate with the City and applicable courts in the execution of this Contract; shall cooperate with the City in seeking and implementing cost-saving alternatives to the execution of this Contract, and in developing methods to reduce the cost of appointing legal counsel to represent indigents; shall immediately notify the Prosecuting Attorney of appointments made pursuant to this Contract; and shall accept and represent all cases and Clients officially appointed by the appropriate court, unless withdrawal from such representation is allowed in accordance with provision stated herein. III. PROFESSIONAL CONDUCT A. EXERCISE OF PROFESSIONAL JUDGMENT Contractor shall execute this Contract independent of any governmental control, except as provided in this Contract. Attorneys employed by Contractor shall represent Clients, preserve Client confidences, and discharge their duties hereunder in accordance with the Rules of Professional Conduct pertaining to attorneys licensed to practice law in the State of Washington, applicable Court rules, in accordance with standards applied to private attorneys defending paying Clients and the statutes, standards and qualifications set forth in East Wenatchee Resolution No. 2001-17 and the Standards for Indigent Defense. Nothing in this Contract shall be construed to impair or inhibit the exercise of independent professional judgment by Contractor or any of its Staff Attorneys with respect to any Client wherein an attorney-client privilege has been established pursuant to the terms of this Contract. Contract for the Provision of Legal Services Page 9 4E86691 B. ATTORNEY-CLIENT PRIVILEGE Nothing in the Contract shall require or permit, without consent of the Client concerned, access to or disclosure of: 1. Any confidential communication made by a Client to Contractor or any such confidential communications made to agents or employees of Contractor or Staff Attorneys; 2. The advice given by Contractor or any of its Staff Attorneys to a Client; 3. The mental impressions, legal research, or legal theories and strategies of Contractor or any of its Staff Attorneys in preparation and presentation of legal proceedings undertaken pursuant to this Contract; or 4. Any other statements and materials privileged from disclosure in a court of law. C. ATTORNEY - JUDGE Contractor shall not accept assignment of a case if the Client has an active case pending in a court in which the Contractor sits as a judge or court commissioner. This prohibition includes not only defendants who are pending disposition in said court, but also defendants who are still on active probation. It will be the duty of the Contractor to screen the clients assigned to it to ensure that Contractor is in full compliance with this section. IV. GENERAL TERMS AND CONDITIONS A. TERM This Contract is to take effect May 26, 2023, and is to continue in full force until December 31, 2024. B. 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 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. Contract for the Provision of Legal Services Page 10 4E86691 C. 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 Contractor or any employee, official, or agent of Contractor, 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, 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 costs, 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. D. PROFESSIONAL LIABILITY INSURANCE During the term of this Contract, and for liability originating from this Contract, Contractor and all Staff Attorneys and other persons acting for and on behalf of the Contractor 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, and annually thereafter during the term of this Contract, Contractor shall submit evidence that such insurance is in full force and effect. 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 seventy-two (72) hours if the policy is canceled or otherwise terminated for any reason, including without limitation, non-payment of premium. E. LEGISLATIVE INTERVENTION In the event that the Legislature of the State of Washington should pass a law during the term of this Contract whereby the State of Washington takes over funding of the public defender costs for East Wenatchee, then in that event, the City’s obligations under this Contract shall end at the end of the given year in which that funding actually takes place. Provided, however, if the State does not pay for the representation of existing cases at the end of the given year and the court(s) require that the same attorneys finish the cases that were assigned prior to the end of the year, then under those specific conditions the City shall be responsible individually or jointly with the State to pay pursuant to the terms and conditions herein. Contract for the Provision of Legal Services Page 11 4E86691 In the event that the law merely changes the method in which the City is paid by the State or the way costs are shared, all efforts shall be made to have this Contract continue in full force and effect during the term herein with possible modifications in the way the same is funded. F. INTEGRATED DOCUMENT This Contract embodies the entirety of the agreement between the City and Contractor, 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. G. WHEN RIGHTS AND REMEDIES ARE NOT WAIVED In no event shall any payment by the City or acceptance of payment by Contractor 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 Contractor 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. H. 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 shall not be affected thereby and remain in full force and effect, if such remainder would then continue to conform to the terms and requirements of applicable law, and shall in no way be affected, impaired or invalidated thereby. I. DISPUTES – ARBITRATION Disputes or claims arising under this Contract between the City and Contractor shall initially be resolved by consultation between Contractor and the East Wenatchee Board of Commissioners. 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. In the event that the City and the Contractor 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.J. MODIFICATIONS Contract for the Provision of Legal Services Page 13 4E86691 Attorneys Providing Services under this Agreement Please list all attorneys in your firm providing services under this agreement. Stephen Krake