HomeMy WebLinkAboutResolution 2024-08, Public Defenders ContractCity of East Wenatchee Resolution 2024-08 with Exhibit A
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City of East Wenatchee, Washington
Resolution No. 2024-08
A Resolution of the City of East Wenatchee, Washington authorizing the
Mayor to execute an Agreement between the City, the Law Offices of Tony
DiTommaso, and the law firm of Kottcamp, Yedinak and Esworthy for
Public Defender Services.
1.Alternate format.
1.1. Para leer este documento en un formato alternativo (español, Braille,
leer en voz alta, etc.), comuníquese con la administradora municipal
al alternateformat@eastwenatcheewa.gov, al (509) 884-9515 o al 711
(TTY).
1.2. To read this document in an alternate format (Spanish, Braille, read
aloud, etc.), please contact the City Clerk at alternateformat@east-
wenatchee.com, at (509) 884-9515, or at 711 (TTY).
2.Authority.
2.1. RCW 35A.11.020 and RCW 35A.12.190 authorize the City Council to
organize and regulate its internal affairs and to define the powers,
functions and duties of its officers and employees.
THE CITY COUNCIL OF THE CITY OF EAST WENATCHEE DO RESOLVE
AS FOLLOWS:
3.Authorization. The City Council authorizes the Mayor to execute an
Agreement between the City, the Law Offices of Tony DiTommaso, and
the law firm of Kottcamp, Yedinak and Esworthy for Public Defender
Services that conforms to the language set forth in Exhibit A.
4.Severability. If a court of competent jurisdiction declares any
provision in this resolution to be contrary to law, such declaration shall
not affect the validity of the other provisions of this Resolution.
5.Effective date. This Resolution becomes effective immediately.
Contract for the Provision of Legal Services
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4F96584-PD Contract - 2024-2025 RRS revised
CONTRACT FOR THE PROVISION
LEGAL SERVICES
This Contract is entered into effective 1 January, 2024 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.
EXHIBIT A
Contract for the Provision of Legal Services
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3. “Staff Attorney” means any attorney who is an employee of Contractor
performing service under the Contract. The attorneys providing services
currently for the Law Offices of Tony DiTommaso are Tony DiTommaso
and Kambra Mellergaard. The attorney providing services currently for
the Law Office of Yedinak & Esworthy, PLLC is Nick Yedinak.
Contractor shall provide the City in advance with the name of any
additional employees who are going to provide representation under this
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 (Revised September 1, 2021), 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 January 1, 2024, and is to continue in full force and effect
until December 31, 2025.
B. COMPENSATION AND COSTS.
1. Compensation for services rendered shall be $14684.06 in total per month,
with one half ($$7342.03) paid to Tony DiTommaso Law Offices and one
half ($7342.03) paid to Kottkamp, Yedinak & Esworthy, PLLC.
2.Beginning January 1, 2025, compensation shall be adjusted by the
consumer price index, Series ID – CWUR0490SA0, Series Title – All
items in Pacific, urban wage earners and clerical workers, for the time
frame July 1, 2023 through June 30, 2024.
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.
EXHIBIT A
Contract for the Provision of Legal Services
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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 an 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 terminating representation; 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
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
EXHIBIT A
Contract for the Provision of Legal Services
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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.
5. 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.
6. 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.
7. 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.
Contractor shall not be required to disclose to the City any materials that
would be considered protected by the attorney-client privilege. In addition,
Contractor shall maintain a case reporting and management information
system which includes the number and type of cases in total and by
attorney, attorney hours and disposition. This information shall also be
provided to the City quarterly, and shall also be made available to the
Office of the Administrator of the Courts upon request. Any such system
shall be maintained independently from client file so as not to disclose
privileged information.
EXHIBIT A
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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).
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.
EXHIBIT A
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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
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,
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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 against the
City arising from the conduct of Contractor, or challenging Contractor’s actions as an
unauthorized practice of law, or questioning Contractor’s right and authority to execute this
Contract. Contractor acknowledges that this Contract is made pursuant to and in express reliance
upon this warranty.
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
EXHIBIT A
Contract for the Provision of Legal Services
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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
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. DISPOSITION OF CLIENT COMPLAINTS
The following procedure shall be utilized for responding to Client complaints:
Complaints should first be directed to the Staff Attorney providing representation. The
EXHIBIT A
Contract for the Provision of Legal Services
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Contractor shall also have a person designated to hear and resolve, if possible, client complaints
(the “Complaint Manager”) that are not resolved by the Staff Attorney. The Staff Attorney shall
inform the Complaint Manager of any Client complaints and shall advise the client of their right
to discuss the complaint with the Complaint Manager. If the Client feels that he or she has not
received an adequate response from the Staff Attorney, the Complaint Manager should evaluate
the legitimacy of the complaint and, if possible, resolve the complaint. The Client should be
informed as to the disposition of his or her complaint within one week. The Client should be
also be advised that if the Client feels dissatisfied with the evaluation and response received from
the Complaint Manager, they can report their complaint to City Mayor for further review and
resolution, and can also submit a complaint to the Washington State Bar Association.
S. 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.
T. MODIFICATIONS
Nothing contained in this Contract shall be deemed to preclude any party from seeking
modification of any term contained herein should an unforeseen and material change in
circumstances arise.
In the event that the Contractors are assigned a number of cases that exceed the number
of cases anticipated and budgeted for in any year to the extent that the Contactors would be
unable to accept new cases under the Standards for Indigent Defense then the amount of
compensation may be modified so that the Contactors may fulfill the obligations of this Contract.
Modification of this type may only be made after a clear showing by the Contractors that
modification is necessary to fulfill this Contract and to comply with the Standards for Indigent
Defense.
Any agreement, contract, understanding, or modification made between the parties
subsequent to this Contract must be executed with identical formality as this Contract, otherwise
the same shall not be enforceable.
U. ASSIGNABILITY
Contractor may not assign its rights or obligations under this Contract to an unaffiliated
third party without the prior written consent of the City, which will not be unreasonably
withheld, or as otherwise permitted herein. Contractor shall provide two weeks’ notice to the
City (to the Mayor or to the City Attorney) of its intent to assign the Contract. If the City does
not object in writing to the assignment within two weeks, the assignment will be permitted.
EXHIBIT A
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V. GOVERNING LAW
This Contract shall be governed by the laws of the State of Washington. Should this
Contract be subject to scrutiny by a court of law, arbitrator or other reviewing body with
jurisdiction, it shall be interpreted as if drafted by both of the parties herein.
CONTRACTORS
_________________________________ _____________________________
Tony DiTommaso Nicholas A. Yedinak
Law Offices of Tony DiTommaso Kottkamp, Yedinak & Esworthy, PLLC
Dated: ___________________________ Dated: _________________________
CITY OF EAST WENATCHEE
Jerrilea Crawford, Mayor
Date
ATTEST:
Laura Leon, City Clerk
Approved as to form:
On file
ROBERT R. SIDERIUS
Attorney for City of East Wenatchee
EXHIBIT A