All data is current as of 2022, unless otherwise noted.
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How the right to counsel is administered and structured
Trial-level right to counsel services in Washington criminal and juvenile delinquency cases are almost entirely the responsibility of the counties and the municipalities. Local governments are required by state statutes to adopt standards related to, among others: attorney qualifications; training and supervision of attorneys; attorney performance; and compensation of counsel. The Washington Supreme Court has issued a number of rules about how right to counsel services should be provided, including some contract terms, performance standards, and caseload controls.
The Washington State Office of Public Defense (OPD) is an agency within the judicial branch of state government that administers state funds and programs to improve indigent defense services, but OPD does not itself provide direct representation. OPD is guided by a 13-person advisory committee, appointed by diverse authorities. The advisory committee’s statutory duties include, among other things, making policy recommendations to the state legislature and state supreme court, and advising the OPD director regarding administration and oversight of the OPD. The Washington Supreme Court directly appoints the director of OPD from a list of three names submitted by the advisory committee.
How the right to counsel is funded
Trial-level indigent defense services in Washington are, for the most part, funded entirely by counties and municipalities.
The State of Washington provides a limited amount of state funding to the OPD for it to distribute to counties and municipalities for the purpose of “improving the quality of public defense services.” In theory, local governments must apply to OPD for a grant of state funding, and their receipt of state funding through OPD obligates them to report their indigent defense expenditures and attorney caseloads and provide to OPD copies of any contracts they have for the provision of indigent defense services, among other things. In practice, the state has never allocated sufficient funding to OPD to allow it to monitor and evaluate the local governments’ compliance, so OPD simply distributes the limited available state funding to all local governments according to a formula based on criteria such as population and number of criminal and delinquency cases, and without regard to whether localities comply with the statutory requirements.
The methods used to provide public counsel
Trial-level representation. Direct representation of indigent people at trial is primarily provided by counties and municipalities. Local governments can provide the right to counsel through a public defender office, contracts with private attorneys or law offices, appointing private attorneys on a case-by-case basis, or a combination of these methods.
Washington rules of court prohibit lawyers from entering into a contract to provide indigent defense services if the contract obligates the lawyer to pay for conflict services or “to bear the cost of providing investigation or expert services, unless a fair and reasonable amount for such costs is specifically designated in the agreement in a manner that does not adversely affect the income” of the attorney.
Appellate representation. The Office of Public Defense contracts with private attorneys to provide all indigent appellate representation.
Civil cases representation. The Office of Public Defense contracts with private attorneys to provide representation throughout the state in dependency and termination of parental rights cases, civil commitment cases, and certain civil case direct appeals.
Legal authority
Washington Constitution, art. I, § 22
Washington Revised Code, §§ 2.70.005 through 2.70.900 (office of public defense), and §§ 10.101.005 through 10.101.900 (indigent defense services), and §§ 13.34.090 through 13.34.092 (dependency and termination of parental rights cases), and § 13.40.740 (juvenile access to an attorney), and § 43.330.190 (extraordinary criminal justice costs act)
Washington State Court, Superior Court Criminal Rules, rules 3.1 and 3.1 stds
Source of data: original research conducted by Sixth Amendment Center staff.
