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June 14, 2022

Indemnification Update for Proposed Public Defense Contracts  

Public Defense Community and Potential Contractors:
Since last Friday, there has been some discussion about the indemnification provision in the proposed public-defense contract, prompted by a notice from the PLF to its policyholders about coverage for liability under overly broad provisions of this sort. 
There has always been an indemnification provision in OPDS contracts, as there are in almost all contracts between lawyers and public agencies, as wells as contracts between lawyers and private entities.  The OPDS provision, including the current version, is not atypical, nor is it overbroad.  It is designed to ensure that the agency is not held liable to the client of a provider for the provider’s malpractice in representing the client.  And it does not accomplish the opposite:  it does not make the provider liable for the agency’s mistakes.  To make that all the more clear, we met with the PLF and drafted an addition to the provision as follows:

Contractor shall protect, indemnify, defend, and hold harmless PDSC, OPDS, and the State of Oregon from all liability, obligations, damages, losses, claims, suits, or actions of whatever nature that are related to, result from, or arise out of Contractor’s or Contractor’s employees’ or agents’ actions, decisions, work, advice, activities, or failures to act under this Agreement.  Notwithstanding the above, Contractor has no duty to indemnify, defend, or hold harmless PDSC, OPDS, or the State for their actions, decisions, work, activities, or failures to act related to this Agreement.

The PLF, OPDS, and Department of Justice have all reviewed this language and agree that the intention is not to impose any duty on the contractor to indemnify the State, OPDS, or the PDSC for any State, OPDS, or PDSC actions or decisions. 

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