In the three weeks since the state Supreme Court announced a new cap on public defender caseloads, Tri-City court officials have been busy crunching numbers from almost 9,000 criminal cases spanning two years.
As head of the Benton & Franklin Counties Office of Public Defense, Eric Hsu must devise a numerical case-weighting system that will satisfy the newly adopted standards and each county's budget constraints.
Yet, while the annual limits might be dropping for many contract lawyers who represent poor defendants, it does not necessarily mean they will see fewer cases.
That's because the value given to each crime based on its complexity and other factors could end up being just a fraction of one point, leaving room for adding more cases before hitting that magical number set by Washington's highest court.
Of equal concern is the fact that private law firms that handle some of the defense work in the Tri-Cities may no longer be allowed to continue taking cases.
The Supreme Court said attorneys who agree to defend a certain number of cases will be considered working full time and cannot do any private practice legal work on the side.
"Under the new rule, they must pick between a lucrative private practice and public defense -- something that pays a lot of money or something they want to do to serve," Hsu said.
Balancing the workload
The justices, in a 7-2 vote last month, said full-time public defenders should take on no more than 150 felony cases each year or 300 misdemeanor cases.
The state Bar Association recommended the standards after several cities and counties in Washington were assigning public defenders up to 500 felony cases a year and more than 2,100 misdemeanor cases.
The new limits would ensure that lawyers give each indigent client's case at least "the minimum level of attention, care and skill that Washington citizens would expect of their state's criminal justice system," said the court order.
The guidelines don't go into effect until September 2013, but Hsu said he doesn't want to wait a year to flip the switch.
Not only could it mean a lot of juggling of cases by defense attorneys, but county commissioners also need to know by August if they're going to have to pay more to cover all the cases.
"It's going to be a lot of work, and it's not going to go away once we start this system," Hsu said.
He started by looking at the court where lately he's seen the greatest number of requests for public defenders -- Benton County District Court.
Known as a court of limited jurisdiction, it handles misdemeanors and gross misdemeanors in violation of state laws and county or city ordinances. It also handles traffic and non-traffic violations and parking tickets.
Two years ago, 4,300 people accused of crimes couldn't afford their own attorneys and were appointed a publicly paid lawyer. That number grew to 4,440 last year.
As of April, public defenders have been appointed to 1,500 cases in District Court -- on track for reaching 4,550 by year's end.
The office has eight contractors to do criminal cases in Benton County District Court and three to deal with the daily arraignment docket and probation cases. Hsu also has two staff attorneys to help them.
By comparison, the two attorneys under contract to defend criminals in Franklin County District Court have a limit of 400 but they rarely get close to that number, Hsu said.
Those attorneys together handled 458 cases last year. And they're seeing similar numbers this year.
One reason is that Pasco Municipal Court handles its own misdemeanor cases, traffic and nontraffic infractions and parking tickets.
Currently, the Superior Court public defenders have a 150 case cap and the District Court maximum is 390 -- well above the new standard of 300 cases.
So, Hsu's first priority is to reduce the Benton County District Court load, enlisting the help of his office's law school intern to break down that court's almost 9,000 cases from the previous two years.
It's an attempt to calculate how much time an attorney is likely to spend on a certain type of case. Then Hsu can estimate how many cases lawyers will be assigned.
While the new case-weighting system will be more complicated than his contractors are used to, he said it also will be easier once it's all organized.
Up until now, Hsu has counted most crimes as one case and probation violations as a third of a case.
Now he is looking at factors such as whether the crime involves a victim, the anticipated number of witnesses, whether experts will be needed and if it is considered a complex case that will take more of the attorney's time.
Each charge is being assigned a credit that will go toward the lawyer's final case count.
"We're forced to. It's either that or everything is regarded as a full case, including probation violations, and we'd probably need another three attorneys if we did," Hsu told the Herald. "We don't have any choice but to dive deep into the charges and decide what weight we want to give them."
For example, driving with a suspended or a revoked license is one of the most common charges in District Court taking up almost a quarter of the caseload, Hsu said.
Generally, those cases can be resolved fairly quickly, so the charge may be worth just a half-point under the new system.
In the end, Hsu said, he might find that the analysis shows that his public defenders are under the 300 case ceiling.
The Supreme Court also ruled that starting July 1, public defense attorneys must submit every three months a signed "Certification of Compliance" to each court they have a contract with.
The attorneys must note the percentage of their time they devote to indigent defense cases, if investigators are available to them and if they have access to an office to hold confidential meetings with clients and have an established mailing address and adequate phone services.
The point of the quarterly checks is to make sure defendants with court-appointed attorneys are getting "the effective assistance of counsel to which they are constitutionally entitled," the Supreme Court order said.
Hsu said he contracts with about 40 attorneys and has the luxury of being "pretty picky" when it comes to choosing the best lawyers. He wants people "who pride themselves on wanting to do a good job."
But the new certification requirements and caseload limits have upset and even offended some attorneys "because a lot of them feel like they're being punished for other people's wrongdoings, because we haven't had issues here."
"They feel like, 'I'm an attorney sworn under oath to uphold the Constitution, and I do the best for my client. Why do you need to keep asking me? Shouldn't it be enough that I show up in court for my client,' " he added.
Public defense contracts typically are negotiated for two or three years.
In District Court, Benton County contractors get $63,960 and Franklin County lawyers -- operating under what Hsu describes as a "vintage system" implemented before he was hired -- receive $33,408 for 200 cases.
If they're appointed more than that in a year, they are paid $87 a case.
Lawyers in Benton County Superior Court get paid $82,105 a year, while their counterparts in Franklin County receive $75,000.
Contracts vs. private practice
In addition to the case limits, the Supreme Court decided that defense attorneys who take on the maximum load need to consider that their full-time job.
A large percentage of Hsu's contract attorneys do private work on the side, and some even own law firms.
The money they make representing indigent defendants might go toward their firm's overhead and liability insurance, Hsu said.
"It's not as if we're making them rich by giving them contracts for public defense. Some I think are motivated by the desire to serve the community, to have interaction with the community and help," he said.
So, Hsu must come up with a plan to cut some defense attorneys' caseloads so they don't reach the maximum. But that also will mean those attorneys won't get paid as much, and then other attorneys would need to be hired.
"We're going to be really putting our heads together because I can't afford to lose the talent that is there, in Superior Court especially, because a number of these attorneys have been around for 20-plus years," Hsu said.
The question for some lawyers then will be if it's worth it to maintain the public contract.
Kennewick attorney Scott Johnson said, "I think the Supreme Court's rule is well intentioned, but practically it's a nightmare for the county, for Eric (Hsu) and for public defenders who have an outside practice. One hundred and fifty cases is a reasonable amount, but to say that's full time puts a huge financial burden on the county because now they have to treat public defenders as full-time employees, or full-time contractors. I really don't know what we're going to do."
Johnson, who has a contract with Benton County Superior Court, said it has reached the point where putting a lump sum payment for 150 cases is not going to work.
The Office of Public Defense should consider part-time contractors, or figure out what a full-time defender should make and divide that by 150 cases, and then pay the lawyers per case.
That way, Johnson said, if he hits 100 cases, he can tell Hsu he has reached his limit for the year so he can continue with his private clients.
"The thing that is frustrating about it is I actually really enjoy the contract," said Johnson, adding that Hsu has scheduled meetings with the lawyers this week. "So I think it would be a real shame to lose the people that enjoy doing the contract."