After being unable to reach a contract agreement with the Washington State Department of Public Defense (OPD), the venerable Washington Appellate Project (WAP) may have to close its doors at the end of the year. Should this happen, the state’s court system could be disrupted due to the loss of experienced attorneys, a backlog of cases, and a more discouraging landscape for new lawyers who are considering pursuing appellate public defense.
Founded in 1993, WAP is the state’s only non-profit appellate public defense law firm and has historically handled about 40% of public defense appeals in the state: that is, appeals brought by clients who can’t afford to pay their own attorneys.
WAP attorneys have argued many life-altering cases over the years, including State v. Blake in 2021, in which the Washington state Supreme Court found the law criminalizing drug possession to be unconstitutional, and State v. Gregory in 2018, in which the Court found the death penalty in the state to be unconstitutional because it was being applied in an arbitrary and racially biased manner. They also argued a case that became part of the Miller fix that reformed how people who committed crimes as juveniles are sentenced and given a chance at parole.
Those cases illustrate how appellate public defense has the ability to impact a large number of Washingtonians by winning a single case.
“When you make the systemic changes, and I think Blake is a great example of this, it didn't just affect our client, Miss Blake,” Greg Link, the executive director of WAP, told The Urbanist. “It affected literally hundreds of thousands of people who would never be our client or never could have been our client.”
However, WAP’s contract with the state expired at the end of June, and OPD and WAP have been unable to agree on a new contract, a dispute that has ultimately led to a lawsuit.
WAP has said that the contract offered to them began a new pay model that was both unethical and unsustainable for the firm.
“OPD is currently paying WAP at rates that are unsustainable for the organization and incompatible with the amount of work required to provide effective, ethical, quality representation,” WAP wrote in their filing. “OPD also refuses to negotiate with WAP in good faith regarding appropriate compensation and case weighting designations going forward. Instead, OPD is insisting on WAP's acceptance of contractual terms that would cause WAP's attorneys to violate their constitutional and professional obligations to clients. This includes a case weighting model that provides far less time per case than a recent OPD-funded workload study deemed necessary for effective, ethical, quality appellate representation.”
OPD, on the other hand, says they are meeting the new caseload standards for public defense issued by the state Supreme Court and that the other law firms with whom they contract are able to make the new contracts work.
“First of all, we have always tied our contracts between compensation and number of cases. That has always been the case in the past, and that is the case in the current situation as well,” Katrin Johnson, the deputy director for operations at OPD, told The Urbanist. “What did change is simply that we added language to ensure greater accountability.”
The new language allows OPD greater flexibility in reassigning a case to a different firm if the original firm is unable to begin work on it.
“What's new was that language about making adjustments, if mid-year, it's clear that the contractor lacks capacity,” Johnson explained.
Link said that where WAP disagrees isn’t with the number of cases being handled by one attorney, but rather about how each case is weighted, which determines how many hours can be used on that case.
The calculation for determining case weight has changed in the most recent OPD contracts. In the past, case weight was determined by counting trial transcript pages, with one credit equaling 800 pages. With the new caseload standards, case weight is factored by counting both transcript pages and clerks’ pages, but a credit now equals 1,000 pages.
However, the disagreement over case weight calculations appears to be more fundamental than this change.
“There’s no way to tell if a case will be straightforward or all-consuming,” said Austin Field, the elections chair for the public defense chapter of SEIU 925.
The OPD contract does contain provisions offering extraordinary compensation for case outliers that require more work, for which attorneys have to apply on a case-by-case basis.
Some more complicated appellate cases can only be handled by attorneys with more experience. Link said OPD hadn’t been regulating the type of cases it was sending to WAP in this regard, creating capacity issues for the firm.
“The issue boils down to this: the Washington Appellate Project wanted a contract where they would be paid at the full time amount, yet only do half of the number of cases,” Johnson said.
Link emphasized that the structure of the new contracts is inherently creating ethical conundrums for attorneys.
“The dispute is about more than just the numbers in a contract,” Link said. “The dispute is about how public defense for people on appeal is going to be delivered. It’s about some of the terms in the contract that create [...] an incentive for attorneys to really minimize the work on any given case in order to make the maximum amount of money, the sort of things that we really don't want in public defense.”
Six law professors in the state who teach legal ethics wrote a letter supporting WAP. The Washington Defender Association also support WAP’s position.
According to Johnson, WAP filed their lawsuit against OPD while the two parties were in the middle of negotiating a six-month interim contract. More recently, WAP and OPD failed to reach a resolution through mediation, and in early September, certain claims of the lawsuit were dismissed while others continue to be in play.
The remaining lawsuit centers on WAP seeking adequate funding for their continued representation of what they say is nearly 500 people.
Possible consequences
Without receiving more funding for its work, WAP will have to close its doors by the end of the year, meaning its remaining clients will be left without attorneys mid-case. While Washington’s public defense system is already considered to be in crisis, an additional backlog created by WAP’s current cases could worsen an already difficult situation.
“OPD has no demonstrated capacity to assign new attorneys to these individuals any time soon,” Link said. “So the crisis that looms is that come January hundreds of people will be without the attorney they are constitutionally entitled to.”
When a new attorney comes onto a case, it generally adds several months to its timeline, according to Field.
In contrast, Johnson said that recruitment for public defense appellate attorneys has been going well.
“Because the Supreme Court had lowered those caseload standards, we had to do strong recruiting of additional contract attorneys for appellate work because mathematically, if the number of cases per attorney is lower, then you need more attorneys to handle the workload,” Johnson said. “And so, in the springtime, while we were having challenges with Washington Appellate Project, we were also, meanwhile, recruiting for additional attorneys because of the reduced caseload standard. What we found was many public defenders who were at that time in trial level practice who wanted to branch into and begin doing appellate work, and the number of talented attorneys wanting to join our program was surprisingly bigger than we expected.”
While OPD is providing free training on appellate practice as well as a resource attorney to meet regularly with new appellate attorneys, the decades of appellate experience housed within WAP won’t be easy to replace, especially since only more experienced attorneys are allowed to handle more serious cases.
Field told The Urbanist that if WAP closes its doors, it would be an “unfathomable disaster.”
“It’s impossible to overstate the importance of appellate public defense,” Field said.
Appellate public defense offers opportunities to reshape the law on a structural level. And experience is critical for achieving wins with big impacts like Blake and Gregory, Link said, pointing out that it took many years before WAP was able to achieve such results.
“The one thing appeals can do is, and this is true to a very lesser degree in trial court, but appellate courts have the ability to shape the law,” Link said. “They have the ability to say this is what the law actually means, and this is what the law actually allows, in a way that's just not possible anywhere else.”
As a trial public defender himself, Field said he relies on the work of appellate public defenders to do his own work. And with WAP’s critical mass of lawyers experienced in appellate work who can collaborate on and check each other’s work while training the next generation, WAP has worked on a lot of the cases Field depends on to defend his clients today. Field thinks the loss of WAP would have wide-reaching ramifications to the quality of justice indigent people in Washington receive.
“We’re not going to be able to rely on the kind of high quality appellate advocacy that has resulted in the life-changing decisions like Blake, like Gregory, that allow us to advocate effectively at the trial court level,” Field said. “The flow of those decisions will be disrupted and we will probably see fewer critical cases like that that made such a huge difference at our level.”
Field also worries that if WAP closes its doors, new lawyers might be discouraged from pursuing public defense appellate law. Combined with the Washington state legislature’s decision earlier this year not to dedicate some of the new revenue from the millionaires tax to public defense, attorneys might not want to practice in an area of law that it appears the state’s leadership doesn’t value.
Meanwhile, the legal staff at WAP face an uncertain future.
“These are talented lawyers, paralegals, legal assistants who are dedicated to public defense,” Johnson said. “We are very concerned about their future ability to work being so impacted by their director's decision on accountability.”
The next court hearing of the WAP suit will be on Friday, November 6, when the court is set to consider dispositive motions. If the judge grants either side’s summary judgment motion, the case will most likely come to an end.
Otherwise, the legal battle is set to continue.
“I think the loss of our office is going to have a wider-ranging impact on the shaping of the law over time,” Link said. “It’s going to take a long time to rebuild that.”
Amy Sundberg
Amy Sundberg
