Public Defense Standards Are Changing: Selecting and Contracting for Public Defense Services

As municipalities grapple with the caseload standards established by the Washington Supreme Court for public defense services, it’s important for cities, towns, and counties to familiarize themselves with the minimum requirements.

In Part 1 of this series, Oskar Rey and I wrote about the Washington State Bar Association (WSBA) Standards adopted in May 2024, which required public defenders to reduce their caseloads from 400 cases a year to 120 case credits a year over a three-year period.

In Part 2, we wrote about the Washington State Supreme Court’s (Supreme Court) Interim Order adopting the WSBA’s 120 case credits limit but requiring that public defenders reduce their caseloads by at least 10% over a ten-year period.

This blog will shift the focus to selecting and contracting with a public defense contractor including selecting/adopting indigent defense standards, setting compensation, gathering data, and contracting for conflict counsel.

Selecting A Public Defender: The Process and the Strategy

Generally, to meet the constitutional requirement to provide public defense for indigent individuals facing criminal charges, public defense is addressed in one of four ways by municipalities:

1. The municipality establishes a public defender office, which operates as a department in the same manner as the prosecutor’s office. Typically, only counties operate fully formed public defender offices.
2. The municipality contracts, on an individual basis, with a private law firm, or firms, to function as the public defenders.
3. The municipality contracts with the county public defense department that will then operate as the public defense office for the municipality.
4. The municipality forms a regional consortium with other local jurisdictions and “pool” resources to pay for a public defender (private law firm or county office) to provide public defense services to all municipalities in the consortium.

One important limitation on cities is the prohibition on participation by officers who serve as the city prosecutor. City prosecutors cannot participate in the selection or management of the municipality’s public defense system, as this represents a conflict of interest. Municipalities with city attorney offices that also function as the city prosecutors must seek outside counsel when contracting for and managing their public defenders.

Setting the Foundation: Adopting Standards

RCW 10.101.030 states:

Each county or city under this chapter shall adopt standards for the delivery of public defense services, whether those services are provided by contract, assigned counsel, or a public defender office.

These standards include: compensation of counsel, duties and responsibilities of counsel, case load limits and types of cases, responsibility for expert witness fees and other costs associated with representation, administrative expenses, support services, reports of attorney activity and vouchers, training, supervision, monitoring and evaluation of attorneys, substitution of attorneys or assignment of contracts, limitations on private practice of contract attorneys, qualifications of attorneys, disposition of client complaints, cause for termination of contract or removal of attorney, and nondiscrimination.

Both the Supreme Court and the WSBA have established standards for indigent defense. Some of those standards, including how to count cases for individual public defenders, currently conflict with each other. Which standards should a municipality follow?

RCW 10.101.030 requires that the indigent defense standards endorsed by the WSBA for the provision of public defense services should serve as guidelines to local legislative authorities in adopting standards. That means they are not mandatory, but the WSBA Standards must still be considered when adopting indigent defense standards.

The Supreme Court standards apply to individual attorneys, which means that while they are not binding on the municipality, they are binding on the individual public defenders. At minimum, when choosing standards to adopt, municipalities should do the following:

• Ensure the local standards are in compliance with the Supreme Court standards, as all individual attorneys will need to comply with those standards; and
• Review the WSBA Standards, particularly those standards which do not conflict with the Supreme Court standards and determine which standards the municipality will adopt.

A city/town must also decide how it will adopt public defense standards. Adoption of public defense standards can occur by:

• Passing an ordinance codifying the standards into the municipal code;
• Adopting standards by resolution and then incorporating them by reference into the public defense agreement itself; or
• Putting the standards into the agreement itself, or as an exhibit.

Download sample contract language regarding implementation of the new indigent public defense standards.

Gathering and Utilizing Data

It is particularly important to collect and review data about the cases coming through the local municipal court, such as the number of cases, type of cases (i.e., domestic violence charges, DUIs, etc.), case disposition, and the use of specialty courts (i.e., immunity courts, drug courts, and domestic violence courts). Such data dictates how many attorneys the municipality will need to budget for in any given year as well as provide information for policymakers in evaluating the court system as whole.

As a general rule, most municipalities will tie compensation to total number of cases per year, and since that number changes over time, it is recommended that a municipality use an average case count based on previous years. Using a three- or five-year average will usually be sufficient to provide an accurate estimate of cases that should be compensated for in a new agreement.

Download sample contract language outlining how the parties will gather and utilize court case data.

Case Counts, Compensation, and Other Costs

As was covered in Part 1 and Part 2, the largest change in the last two years in public defense contracting has been the reduction of individual public defender caseloads. Before 2024, the adopted caseload standards were 400 unweighted misdemeanor cases per year.

Both the WSBA and the Supreme Court have mandated that the caseloads must come down to 120 misdemeanor case credits per year for a single public defender. The WSBA requires this reduction to occur within three years, while the Supreme Court has adopted a 10-year period.

Additionally, the WSBA requires that certain types of misdemeanor cases be “weighted,” meaning they are worth 1.5 case credits. On the other hand, the Supreme Court does not require case weighting but encourages municipalities to consider a weighted system.

Based on the Supreme Court’s Interim Order, minimum required reductions should look like this:

Other factors for municipalities include:

• Whether to adopt a weighted system, and if so, whether to follow the WSBA Standards. In the course of its analysis, a municipality should consider the costs of adopting a weighted case credit system as well as the policy objectives for its criminal justice system as a whole.
• Whether to adopt the Supreme Court’s 10-year timeline, the WSBA’s three-year timeline, or some other timeline for drawing down the caseload limit to 120 misdemeanor case credits. It is important to note that the Supreme Court Interim Order sets forth the minimum requirements. Municipalities may choose a more rapid schedule.
• Whether to adopt a multi-year agreement with its chosen public defense provider. In such a scenario, both the caseload limits for individual attorneys and the compensation paid should reflect the caseload reduction over the life of the agreement.
• Whether the municipality will compensate the public defense provider for hiring certain employees or contractors. For example, WSBA Standard 4.B requires hiring or contracting with a social worker.
• Whether to compensate for other services beyond the base continuation. Typically, these other costs, such as paying expert witnesses, are compensated separately from the base compensation under the agreement.

Download sample contract language describing how the parties will measure case counts.

Conflict Counsel

Whether it’s because of caseloads or due to conflicts of interest, it is important to have multiple attorneys under contract as conflict counsel.

Conflict counsel will have to follow the municipality’s adopted indigent defense standards, but contracting with conflict counsel has several critical differences. For example, conflict counsels are generally not compensated on a monthly basis and are typically compensated on a per case or an hourly basis.

Conclusion

Selecting and contracting with a public defense provider requires thoughtful planning, careful analysis of standards, and a long-term strategy for managing caseload reductions. By laying a strong foundation now—through clear standards, appropriate compensation structures, and robust oversight—municipalities can help ensure that their public defense systems remain both sustainable and constitutionally sound in the years ahead.