GR 9 COVER SHEET

Suggested Amendment

Standard 14.1 of the Standards for Indigent Defense, the Mental Proceedings Rules (MPR), and the Standards Certification of Compliance for CrR 3.1, CrRLJ 3.1 and JuCR 9.2

Submitted by the Board of Governors of the Washington State Bar Association

A.   Name of Proponent:

Washington State Bar Association

B.   Spokespersons:

William Pickett, President, Washington State Bar Association, 1325 Fourth Avenue, Suite 600, Seattle, WA 98101-2539 (telephone 509-972-1825)

Daryl Rodrigues, Chair, Council on Public Defense, Washington State Bar Association, Seattle, WA 98101-2539 (telephone 360-701-0306) 

Diana Singleton, Access to Justice Manager, Washington State Bar Association, 1325 Fourth Avenue, Suite 600, Seattle, WA 98101-2539 (telephone 206-727-8205)

C.   Purpose:

The Standards for Indigent Defense Services (Standards) adopted by the Washington Supreme Court set a caseload limit for appointed counsel representing clients in criminal cases and for appointed counsel representing clients in civil commitment proceedings.  The Standards also require appointed counsel in criminal cases (1) to be familiar with the Performance Guidelines for Criminal Defense Representation and the Performance Guidelines for Juvenile Defense Representation approved by the Washington State Bar Association (WSBA) and (2) to file quarterly Certifications that they are in compliance with the caseload limits included in the Standards. 

Counsel appointed in the more than 10,000 civil commitment petitions filed each year have no uniform guidance for client representation and routinely do not file Certifications of Compliance.  To address this gap, the WSBA Council on Public Defense formed a Mental Health Committee (Committee), which in early 2017 began drafting Performance Guidelines for Attorneys Representing Respondents in Civil Commitment Proceedings (Guidelines).  The first draft was circulated for comment on the Washington Defender Association (WDA) civil commitment practitioners’ LISTSERV. The Committee revised and circulated the Guidelines twice more in light of the feedback.

A close to final version of the Guidelines was sent, with a request for comment, in advance of the Council’s September 2018 meeting to the Washington State Association of Counties, the Gender and Justice Commission and the Minority and Justice Commission, Disability Rights Washington and the National Alliance for the Mentally Ill (NAMI) Greater Seattle chapter. 

The Council approved the Guidelines by a supermajority at its October 5, 2018 meeting.  They were given a first reading at the November 2018 Board of Governors meeting and circulated again for comments. At the second reading of the Guidelines in January 2019, the Board of Governors voted unanimously to recommend the Supreme Court (1) add the Guidelines to the Standards (2) include the Standards in the Mental Proceedings Rules and (3) require appointed counsel representing clients in civil commitment proceedings to file Certifications of Compliance as is now required of appointed counsel in criminal cases.

Specifically, the first recommendation is that the Court add the proposed Performance Guidelines for Attorneys Representing Respondents in Civil Commitment Proceedings to Standard 14.1 of the Standards for Indigent Defense and modify the language of Standard 14.1(D) as follows:

Be familiar with the Performance Guidelines for Criminal Defense Representation approved by the Washington State Bar Association; when representing youth, be familiar with the Performance Guidelines for Juvenile Defense Representation approved by the Washington State Bar Association; and when representing respondents in civil commitment proceedings, be familiar with the Performance Guidelines for Attorneys Representing Respondents in Civil Commitment Proceedings approved by the Washington State Bar Association; and

The second recommendation is that the Court include the Standards in the Mental Proceedings Rules (newly proposed MPR 2.1) and require appointed counsel representing clients in civil commitment proceedings to file Certifications of Compliance, as is already required of appointed counsel in criminal cases.

For consistency, the newly proposed Standards in MPR 2.1 are also being proposed for inclusion in the Standards in CrR 3.1, CrRLJ 3.1, and JuCR 9.2.