Standard 14.1. In order to assure that indigent accused receive the effective assistance of counsel to which they are constitutionally entitled, attorneys providing defense services shall meet the following minimum professional qualifications:
A. Satisfy the minimum requirements for practicing law in Washington as determined by the Washington Supreme Court; and
B. Be familiar with the statutes, court rules, constitutional provisions, and case law relevant to their practice area; and
C. Be familiar with the Washington Rules of Professional Conduct; and
D. Be familiar with the Performance Guidelines for Criminal Defense Representation approved by the Washington State Bar Association, and when representing youth, be familiar with the Performance Guidelines for Juvenile Defense Representation approved by the Washington State Bar Association; and
E. Be familiar with the consequences of a conviction or adjudication, including possible immigration consequences and the possibility of civil commitment proceedings based on a criminal conviction; and
F. Be familiar with mental health issues and be able to identify the need to obtain expert services; and
G. Complete seven hours of continuing legal education within each calendar year in courses relating to their public defense practice.
[Adopted effective October 1, 2012; Amended effective April 24, 2018.]
Standard 14.2. Attorneys’ qualifications according to severity or type of case1:
A.Death Penalty Representation. Each attorney acting as lead counsel in a criminal case in which the death penalty has been or may be decreed and which the decision to seek the death penalty has not yet been made shall meet the following requirements:
i. The minimum requirements set forth in Section 1; and
ii. At least five years’ criminal trial experience; and
iii. Have prior experience as lead counsel in no fewer than nine jury trials of serious and complex cases which were tried to completion; and
iv. Have served as lead or co-counsel in at least one aggravated homicide case; and
v. Have experience in preparation of mitigation packages in aggravated homicide or persistent offender cases; and
vi. Have completed at least one death penalty defense seminar within the previous two years; and
vii. Meet the requirements of SPRC 2.2
The defense team in a death penalty case should include, at a minimum, the two attorneys appointed pursuant to SPRC 2, a mitigation specialist, and an investigator. Psychiatrists, psychologists, and other experts and support personnel should be added as needed.
B.Adult Felony Cases-Class A. Each attorney representing a defendant accused of a Class A felony as defined in RCW 9A.20.020 shall meet the following requirements:
i. The minimum requirements set forth in Section 1; and
ii. Either:
a. has served two years as a prosecutor; or
b. has served two years as a public defender; or two years in a private criminal practice; and
iii. Has been trial counsel alone or with other counsel and handled a significant portion of the trial in three felony cases that have been submitted to a jury.
C.Adult Felony Cases-Class B Violent Offense. Each attorney representing a defendant accused of a Class B violent offense as defined in RCW 9A.20.020 shall meet the following requirements.
i. The minimum requirements set forth in Section 1; and
ii. Either;
a. has served one year as a prosecutor; or
b. has served one year as a public defender; or one year in a private criminal practice; and
ii. Has been trial counsel alone or with other counsel and handled a significant portion of the trial in two Class C felony cases that have been submitted to a jury.
D.Adult Sex Offense Cases. Each attorney representing a client in an adult sex offense case shall meet the following requirements:
i. The minimum requirements set forth in Section 1 and Section 2(C); and
ii. Has been counsel alone of record in an adult or juvenile sex offense case or shall be supervised by or consult with an attorney who has experience representing juveniles or adults in sex offense cases.
E.Adult Felony Cases-All Other Class B Felonies, Class C Felonies, Probation or Parole Revocation. Each attorney representing a defendant accused of a Class B felony not defined in Section 2(C) or (D) above or a Class C felony, as defined in RCW 9A.20.020, or involved in a probation or parole revocation hearing shall meet the following requirements:
i. The minimum requirements set forth in Section 1, and
ii. Either:
a. has served one year as a prosecutor; or
b. has served one year as a public defender; or one year in a private criminal practice; and
iii. Has been trial counsel alone or with other trial counsel and handled a significant portion of the trial in two criminal cases that have been submitted to a jury; and
iv. Each attorney shall be accompanied at his or her first felony trial by a supervisor if available.
F.Persistent Offender (Life Without Possibility of Release) Representation. Each attorney acting as lead counsel in a “two strikes” or “three strikes” case in which a conviction will result in a mandatory sentence of life in prison without parole shall meet the following requirements:
i. The minimum requirements set forth in Section 1;3 and
ii. Have at least:
a. four years’ criminal trial experience; and
b. one year’s experience as a felony defense attorney; and
c. experience as lead counsel in at least one Class A felony trial; and
d. experience as counsel in cases involving each of the following:
1. Mental health issues; and
2. Sexual offenses, if the current offense or a prior conviction that is one of the predicate cases resulting in the possibility of life in prison without parole is a sex offense; and
4. One year of appellate experience or demonstrated legal writing ability.
G.Juvenile Cases-Class A. Each attorney representing a juvenile accused of a Class A felony shall meet the following requirements:
i. The minimum requirements set forth in Section 1, and
ii. Either:
a. has served one year as a prosecutor; or
b. has served one year as a public defender; or one year in a private criminal practice; and
iii. Has been trial counsel alone of record in five Class B and C felony trials; and
iv. Each attorney shall be accompanied at his or her first juvenile trial by a supervisor, if available.
H.Juvenile Cases-Classes B and C. Each attorney representing a juvenile accused of a Class B or C felony shall meet the following requirements:
i. The minimum requirements set forth in Section 1; and
ii. Either:
a. has served one year as a prosecutor; or
b. has served one year as a public defender; or one year in a private criminal practice, and
iii. Has been trial counsel alone in five misdemeanor cases brought to a final resolution; and
iv. Each attorney shall be accompanied at his or her first juvenile trial by a supervisor if available.
I.Juvenile Sex Offense Cases. Each attorney representing a client in a juvenile sex offense case shall meet the following requirements:
i. The minimum requirements set forth in Section 1 and Section 2(H); and
ii. Has been counsel alone of record in an adult or juvenile sex offense case or shall be supervised by or consult with an attorney who has experience representing juveniles or adults in sex offense cases.
J.Juvenile Status Offenses Cases. Each attorney representing a client in a “Becca” matter shall meet the following requirements:
i. The minimum requirements as outlined in Section 1; and
ii. Either:
a. have represented clients in at least two similar cases under the supervision of a more experienced attorney or completed at least three hours of CLE training specific to “status offense” cases; or
b. have participated in at least one consultation per case with a more experienced attorney who is qualified under this section.
K.Misdemeanor Cases. Each attorney representing a defendant involved in a matter concerning a simple misdemeanor or gross misdemeanor or condition of confinement, shall meet the requirements as outlined in Section 1.
L.Dependency Cases. Each attorney representing a client in a dependency matter shall meet the following requirements:
i. The minimum requirements as outlined in Section 1; and
ii. Attorneys handling termination hearings shall have six months’ dependency experience or have significant experience in handling complex litigation.
iii. Attorneys in dependency matters should be familiar with expert services and treatment resources for substance abuse.
iv. Attorneys representing children in dependency matters should have knowledge, training, experience, and ability in communicating effectively with children, or have participated in at least one consultation per case either with a state Office of Public Defense resource attorney or other attorney qualified under this section.
M.Civil Commitment Cases. Each attorney representing a respondent shall meet the following requirements:
i. The minimum requirements set forth in Section 1; and
ii. Each staff attorney shall be accompanied at his or her first 90 or 180 day commitment hearing by a supervisor; and
iii. Shall not represent a respondent in a 90 or 180 day commitment hearing unless he or she has either:
a. served one year as a prosecutor; or
b. served one year as a public defender; or one year in a private civil commitment practice, and
c. been trial counsel in five civil commitment initial hearings; and
iv. Shall not represent a respondent in a jury trial unless he or she has conducted a felony jury trial as lead counsel; or been co-counsel with a more experienced attorney in a 90 or 180 day commitment hearing.
N.Sex Offender “Predator” Commitment Cases. Generally, there should be two counsel on each sex offender commitment case. The lead counsel shall meet the following requirements:
i. The minimum requirements set forth in Section 1; and
ii. Have at least:
a. Three years’ criminal trial experience; and
b. One year’s experience as a felony defense attorney or one year’s experience as a criminal appeals attorney; and
c. Experience as lead counsel in at least one felony trial; and
d. Experience as counsel in cases involving each of the following:
1. Mental health issues; and
e. Familiarity with the Civil Rules; and
f. One year of appellate experience or demonstrated legal writing ability.
Other counsel working on a sex offender commitment case should meet the minimum requirements in Section 1 and have either one year’s experience as a public defender or significant experience in the preparation of criminal cases, including legal research and writing and training in trial advocacy.
O.Contempt of Court Cases. Each attorney representing a respondent shall meet the following requirements:
i. The minimum requirements set forth in Section 1; and
ii. Each attorney shall be accompanied at his or her first three contempt of court hearings by a supervisor or more experienced attorney, or participate in at least one consultation per case with a state Office of Public Defense resource attorney or other attorney qualified in this area of practice.
P.Specialty Courts. Each attorney representing a client in a specialty court (e.g., mental health court, drug diversion court, homelessness court) shall meet the following requirements:
i. The minimum requirements set forth in Section 1; and
ii. The requirements set forth above for representation in the type of practice involved in the specialty court (e.g., felony, misdemeanor, juvenile); and
iii. Be familiar with mental health and substance abuse issues and treatment alternatives.
[Adopted effective October 1, 2012.]
Standard 14.3. Appellate Representation. Each attorney who is counsel for a case on appeal to the Washington Supreme Court or to the Washington Court of Appeals shall meet the following requirements:
A. The minimum requirements as outlined in Section 1; and
B. Either:
i. has filed a brief with the Washington Supreme Court or any Washington Court of Appeals in at least one criminal case within the past two years; or
ii. has equivalent appellate experience, including filing appellate briefs in other jurisdictions, at least one year as an appellate court or federal court clerk, extensive trial level briefing, or other comparable work.
C. Attorneys with primary responsibility for handling a death penalty appeal shall have at least five years’ criminal experience, preferably including at least one homicide trial and at least six appeals from felony convictions, and meet the requirements of SPRC 2.
RALJ Misdemeanor Appeals to Superior Court: Each attorney who is counsel alone for a case on appeal to the Superior Court from a court of limited jurisdiction should meet the minimum requirements as outlined in Section 1, and have had significant training or experience in either criminal appeals, criminal motions practice, extensive trial level briefing, clerking for an appellate judge, or assisting a more experienced attorney in preparing and arguing a RALJ appeal.
[Adopted effective October 1, 2012.]
Standard 14.4. Legal Interns.
A. Legal interns must meet the requirements set out in APR 9.
B. Legal interns shall receive training pursuant to APR 9, and in offices of more than seven attorneys, an orientation and training program for new attorneys and legal interns should be held.
1 Attorneys working toward qualification for a particular category of cases under this standard may associate with lead counsel who is qualified under this standard for that category of cases.
2
SPRC 2
APPOINTMENT OF COUNSEL
At least two lawyers shall be appointed for the trial and also for the direct appeal. The trial court shall retain responsibility for appointing counsel for trial. The Supreme Court shall appoint counsel for the direct appeal. Notwithstanding RAP 15.2(f) and (h), the Supreme Court will determine all motions to withdraw as counsel on appeal.
A list of attorneys who meet the requirements of proficiency and experience, and who have demonstrated that they are learned in the law of capital punishment by virtue of training or experience, and thus are qualified for appointment in death penalty trials and for appeals will be recruited and maintained by a panel created by the Supreme Court. All counsel for trial and appeal must have demonstrated the proficiency and commitment to quality representation which is appropriate to a capital case. Both counsel at trial must have five years’ experience in the practice of criminal law (and) be familiar with and experienced in the utilization of expert witnesses and evidence, and not be presently serving as appointed counsel in another active trial level death penalty case. One counsel must be, and both may be, qualified for appointment in capital trials on the list, unless circumstances exist such that it is in the defendant’s interest to appoint otherwise qualified counsel learned in the law of capital punishment by virtue of training or experience. The trial court shall make findings of fact if good cause is found for not appointing list counsel.
At least one counsel on appeal must have three years’ experience in the field of criminal appellate law and be learned in the law of capital punishment by virtue of training or experience. In appointing counsel on appeal, the Supreme Court will consider the list, but will have the final discretion in the appointment of counsel.
3RCW 10.101.060(1)(a)(iii) provides that counties receiving funding from the state Office of Public Defense under that statute must require “attorneys who handle the most serious cases to meet specified qualifications as set forth in the Washington state bar association endorsed standards for public defense services or participate in at least one case consultation per case with office of public defense resource attorneys who are so qualified. The most serious cases include all cases of murder in the first or second degree, persistent offender cases, and class A felonies.”
Wash. Sup. Ct. Crim. R. Standard 14
Adopted effective October 1, 2012.
