§ 23.7 Assistance of Counsel

• Jurisdiction: Washington

§23.7 ASSISTANCE OF COUNSEL

Procedures for the appointment of counsel are evolving and vary from county to county; it is best to check with the Office of Public Defense (OPD). See Office of Public Defense, http://www.opd.wa.gov (last visited Mar. 17, 2015). The order of indigency should authorize appointment of counsel. RAP 15.2(e), (g). Superior court judges no longer appoint appellate counsel. Pursuant to RAP 15.2(g), the Court of Appeals appoints counsel for indigent parties on review in all three divisions. OPD provides the court with the names of eligible counsel for appointment and contracts with private attorneys and firms who wish to be designated. The Supreme Court will appoint counsel for cases originating in that court.

An order of indigency need not always provide for appointment of counsel. A party may be determined partially indigent and to need assistance only with other expenses of review.

The indigent party has no right to select a particular attorney. Removal of appointed counsel and appointment of other counsel at the request of the indigent are within the sound discretion of the trial court. State v. Shelton, 71 Wn.2d 838, 431 P.2d 201 (1967); State v. Stark, 48 Wn. App. 245, 738 P.2d 684, review denied, 109 Wn.2d 1003 (1987).

A criminal defendant has no federal constitutional right to counsel to seek discretionary review in a state court proceeding. Wainwright v. Torna, 455 U.S. 586, 102 S. Ct. 1300, 71 L. Ed. 2d 475 (1982). The Washington Court of Appeals has similarly held that appointed counsel has no obligation to prepare a petition for review once the appeal has concluded in the Court of Appeals. State v. Folden, 53 Wn. App. 426, 767 P.2d 589, review denied, 112 Wn.2d 1022 (1989); see also State v. Mills, 85 Wn. App. 286, 932 P.2d 192 (1997). However, appointed counsel should advise the indigent person of his or her right to file such a petition, and when and where it should be filed. Folden, 53 Wn. App. at 430-31.

Although there is no federal right to counsel to seek discretionary review, counsel may be appointed for that purpose. See Mount Vernon v. Weston, 68 Wn. App. 411, 844 P.2d 438 (1992), review denied, 121 Wn.2d 1024 (1993). If counsel appointed for discretionary review of a superior court decision on review of a decision by a court of limited jurisdiction finds that the case does not meet the criteria for discretionary review, counsel need not file what he or she deems to be a frivolous motion. In such instances, counsel need not move to formally withdraw under RAP 18.3. However, if counsel decides not to submit a motion for discretionary review, counsel should inform the Court of Appeals in writing and advise the indigent of the right to proceed pro se. Counsel should take these steps while sufficient time remains for the client to proceed on his or her own.

When there is a statutory or constitutional right to counsel at all stages of a proceeding, a party is entitled to appointed counsel in seeking discretionary review of an interlocutory trial court decision. In re Grove, 127 Wn.2d 221, 233, 897 P.2d 1252 (1995).

The Office of Public Defense has developed standards and guidelines for several aspects of appellate representation of indigents. See, e.g., Client Communication Protocol Guidelines, Washington State Office of Public Defense, http://www.opd.wa.gov/index.php/8-app/85-appellate-communication (last visited Apr. 18, 2015). The OPD also maintains a brief bank that is available to the public.

(1) Assistance of trial counsel on appeal

Trial counsel has an obligation to prepare a motion for an order of indigency. Woods v. Rhay, 54 Wn.2d 36, 44 n.3, 338 P.2d 332 (1959). If trial counsel does not continue representing the indigent party, trial counsel must assist counsel appointed for review in selecting and preparing the record. RAP 15.2(g). Trial counsel...