Provisional Appointment Of Counsel

Have you received something that looks like the document below, in which it appears you have been ordered to use a Public Defender?

We have been receiving calls by confused defendants about this document that has been sent to people who have received Summons or have been released from jail. Judge Jahns created this document that automatically assigns defendants to a Public Defender even when the defendant did not want a Public Defender and would not qualify for one due to income.

So what do I do now?

Nearly every private attorney in the Kitsap County is confused so we aren’t surprised that defendants are so perplexed. We even had a client receive correspondence to contact his “Provisional” attorney after we had filed our Notice of Appearance—thereby interfering and confusing legal communication with our client. This troubles us on many levels and calls into questions the ethics of this communication.

Another private attorney had a client, who makes $120,000 a year, ask if she was required to use the Provisional attorney against her wishes. She saw that Judge Jahns ORDERED that public defense is representing her. She wanted to use this private attorney and, in particular, needed him to handle the Department of Licensing hearing (something public defense does not do). She was pretty upset when she thought her Constitutional right to counsel of her choosing was being infringed upon.

No, you are definitely not ORDERED to use a Public Defender

If you are also confused, NO JUDGE CAN ORDER YOU TO USE PUBLIC DEFENSE rather than an attorney of your choosing. And, be aware, if you choose a Public Defender:

1) They do not handle any Department of Licensing hearings regarding suspension of your license. Since you only have 7 days to request the hearing following an arrest for DUI, minor DUI, or Physical Control, be very careful about reliance on public defense for legal representation (i.e. this Order). If you are accustomed to private counsel, you may incorrectly believe that a Public Defender is supposed to handle all administrative matters along with criminal matters. This is not so.

2) If you have criminal history or open cases in other counties that will be impacted by your Kitsap County case, be very careful about using a Public Defender. The public defense dollars are assigned to attorneys in Kitsap. If you have a deal in Pierce that might be revoked or need to resolve cases in a certain order to avoid serving consecutive sentences (rather than concurrent), it is not your Kitsap Public Defender’s job to handle those details. They can not and will not appear to assist with you Pierce County case or any other county, for that matter.

3) You may be limited in resolutions. Creative resolutions can take time. A Public Defender will be assigned 100’s of cases during the year. A private attorney likely has no more than 20-40 active cases at any one time.

Of the 39 counties that receive funding from Washington State Office of Defense, we have yet to find one that is bypassing private counsel in this manner. The argument for the Provisional Appointment (free lawyers for everyone) is that they can’t screen defendants for indigency without a face-to-face meeting in the Clerk’s office. Yet, we can find no other city or county in the state that is essentially using tax payer dollars to fund ALL criminal defense (over 3500 misdemeanor cases in Kitsap District Court each year). In fact, in the state’s largest county, King, they have switched to doing screenings over the phone. And, Bainbridge Island allows you to mail, fax, or phone in your form for requesting a public defender.

Considering how the state responded to people who were inappropriately filing for unemployment benefits (forced to repay those benefits and some were criminally charged), this reeks of trouble to us. When the fall comes and so many are out of work, teachers are furloughed, bus drivers are unemployed, parks are closed, and Kitsap County Commissioners are explaining there are not enough funds to support Kitsap citizens’ needs, I would not want to be a person who made $70,000 a year and used free defense that was intended (by law) for those who are at or below poverty level. In the court of public opinion, this looks pretty bad.

If in doubt of whether you qualify for indigency, you can probably call any other court in the state and have your qualification determined. If you don’t want to be one of those folks explaining yourself later, it’s probably best to use the same standard that everyone else is using in the State of Washington.

KITSAP COUNTY DISTRICT COURT
STATE OF WASHINGTON

STATE OF WASHINGTON,                              No. XXX 
                                                     Plaintiff,
                                                                             PROVISIONAL APPOINTMENT OF COUNSEL

JOHN DOE
                                                     Defendant.

__________________________________________________________________
APPOINTMENT OF COUNSEL

               Effective “legal representation must be provided for indigent persons and persons who are indigent and able to contribute, consistent with the constitutional requirements of fairness, equal protection, and due process in all cases where the right to counsel attaches.” RCW 10.101.005.

               A court shall appoint counsel for all persons “wishing the appointment of counsel” in criminal cases upon a determination of indigency. RCW 10.101.020.

               This Court is unable to make a determination of indigency before the time when the first services are to be rendered.” In such a situation, a court “shall appoint an attorney on a provisional basis.”

               The Defendant wishes the appointment of counsel. Accordingly, it is hereby –

               ORDERED that the Kitsap County Office of Public Defense is appointed to represent the Defendant on a provisional basis.

DATED AND FILED – July 17, 2020

                                                                                                                                                                  /s/ Signed Electronically
                                                                                                                                                                 JEFFREY J. JAHNS Presiding Judge

INSTRUCTIONS TO DEFENDANT

Your case has been assigned to the Kitsap County Office of Public Defense, which may assign your case to one of the OPD contract attorneys.

Please make sure that you have completed OPD’s gold client information sheet and given it to your arraignment counsel. If you have not done this, please contact OPD following your arraignment by either going to room 103 of the courthouse or by calling (360) 337-7015 and let them know that you wish to complete the gold client information sheet.

Your attorney contact information will be mailed to you within three business days of today’s order. If you do not receive anything from OPD within one week from today, please contact OPD at (360) 337-7015.

1 Emergency Administrative Order No. 2020-22 (District Court Phase 2 Operations) (June 9, 2020), $19 at pages 15-16.
2 RCW 10.101.020(4)
3 Hereafter “OPD.”