BILL ANALYSIS                                                                                                                                                                                                    Ó




                   Senate Appropriations Committee Fiscal Summary
                            Senator Kevin de León, Chair


          SB 166 (Liu) - Juveniles: attorney qualifications.
          
          Amended: As Introduced          Policy Vote: Public Safety 5-1
          Urgency: No                     Mandate: No (See Staff Comments)
          Hearing Date: May 23, 2013      Consultant: Jolie Onodera
          
          SUSPENSE FILE. AS PROPOSED TO BE AMENDED.
          
          
          Bill Summary: SB 166 would require the Judicial Council to  
          establish minimum hours of training and education necessary in  
          order to be appointed as counsel in delinquency proceedings.  
          This bill would require the Judicial Council to adopt rules of  
          court establishing required training areas for counsel in  
          juvenile delinquency proceedings, as specified. This bill  
          contains codified legislative findings and declarations.

          Fiscal Impact: 
              One-time minor costs (Trial Court Trust Fund) for the  
              Judicial Council to establish the training and education  
              standards and adopt the rules of court.
              Potential ongoing state-reimbursable local costs in excess  
              of $150,000 (General Fund) per year to the extent the rules  
              of court establish guidelines mandating delinquency-specific  
              training and education requirements for court appointed  
              counsel, including public defenders.
              To the extent the minimum qualifications established result  
              in more experienced representation in delinquency  
              proceedings, potential long-term cost savings to the justice  
              system in reduced incarceration and recidivism.

          Background: According to the Department of Justice (DOJ) report  
          on juvenile justice in California, approximately 150,000  
          juveniles were arrested in 2011, with nearly 74,000 cases  
          referred to the juvenile court for disposition and largely  
          represented by public defenders and court appointed counsel (93  
          percent). 
          
          In its Juvenile Delinquency Court Assessment 2008, the  
          Administrative Office of the Courts concluded, "Given the  
          complexity and the unique nature of the juvenile delinquency  
          court setting, having experienced, well-trained attorneys is  








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          critical in order to ensure the fair processing of delinquency  
          cases and quality representation for youth who enter the  
          delinquency system. The fact that there are many professionals  
          who are new to the delinquency system indicates the importance  
          of early training when first entering a juvenile delinquency  
          assignment. Training, along with other practices that allow for  
          attorneys with delinquency-related experience to handle or  
          supervise delinquency cases, should be encouraged by district  
          attorneys' and public defenders' offices."

          A recent article in the UC Davis Journal of Juvenile Law and  
          Policy, Contracts for Appointed Counsel in Juvenile Delinquency  
          Cases: Defining Expectations (Volume 16:1, Winter 2012), stated,  
          "The analysis of California contracts for appointed delinquency  
          counsel reveals troubling deficiencies. The contracts fail, as a  
          whole, to include the basic elements of competent delinquency  
          representation. Some have well-drafted provisions with respect  
          to particular elements but, in general, the contracts fail to  
          address basic elements of delinquency representation. Moreover,  
          the structure for compensation in many counties raises serious  
          questions about whether delinquency attorneys are compensated  
          for providing services they are ethically and legally bound to  
          provide." Additionally, with regard to delinquency-specific  
          training, the article reported, "Disappointingly, a 2009 survey  
          [by the MacArthur Juvenile Indigent Defense Action Network] of  
          California delinquency counsel found that 47 percent of panel  
          and contract attorneys had no specific juvenile training when  
          they began to represent children in delinquency cases, and that  
          of those who did have some training, 48 percent had a day or  
          less."

          With regard to counsel in dependency proceedings, California  
          Rule of Court 5.660(d) establishes caseload standards, training  
          requirements, and guidelines for appointed counsel for children.  
          This bill seeks to establish a minimum level of training and  
          education for counsel in delinquency proceedings in order to  
          assure justice for youth coming before the juvenile court.

          Proposed Law: This bill would require the Judicial Council to  
          establish minimum hours of training and education necessary in  
          order to be appointed as counsel in delinquency proceedings.  
          Training hours approved by the State Bar for Minimum Continuing  
          Legal Education (MCLE) credit would be counted toward the MCLE  
          hours required of all attorneys by the State Bar. This bill  








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          would also require the Judicial Council to adopt rules of court  
          to do all of the following:

                 Establish required training areas that include, but are  
               not limited to, developments in juvenile delinquency law,  
               child and adolescent development, special education, mental  
               health issues, child abuse and neglect, counsel's ethical  
               duties, appellate issues, direct and collateral  
               consequences for a minor of court involvement, and securing  
               effective rehabilitative resources.
                 Encourage public defender offices and agencies that  
               provide representation in juvenile delinquency hearings to  
               provide training on juvenile delinquency issues. District  
               attorneys would also be encouraged to pursue education in  
               the relevant areas.
                 Provide that experts whose appointment is requested by  
               delinquency attorneys are agents of the attorneys and  
               require those experts to adhere to the attorney-client  
               privilege.
                 Provide that attorneys practicing in juvenile  
               delinquency courts shall be solely responsible for  
               compliance with the training and education requirements  
               adopted pursuant to this section.

          The bill specifies that the rules shall not require a  
          delinquency attorney to assume the responsibilities of a  
          probation officer, social worker, parent, or guardian, shall not  
          be required to provide non-legal services or assistance to the  
          minor, or represent the minor in any proceeding outside of the  
          delinquency proceedings. This bill also includes numerous  
          codified legislative findings and declarations. 

          Related Legislation: SB 988 (Liu) 2012 was similar to this  
          measure and required the Judicial Council to adopt rules of  
          court regarding the qualifications of appointed counsel in  
          juvenile delinquency proceedings. This bill was held on the  
          Suspense File of this committee.

          SB 783 (Lockyer) Chapter 1073/1994 provided that all parties in  
          juvenile dependency cases are entitled to competent counsel and  
          required the Judicial Council to develop rules of court  
          regarding the appointment of competent counsel in dependency  
          proceedings.









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          Staff Comments: The Judicial Council would incur one-time minor  
          costs to establish the training and education requirements and  
          adopt the rules of court. The bill does not specify the number  
          of minimum training and education hours necessary in order to be  
          appointed as counsel, but requires the Judicial Council to  
          establish this standard, as well as establish required training  
          areas in the rules of court to be adopted. Staff notes that to  
          the extent the Judicial Council considers the State Bar of  
          California Guidelines on Indigent Defense Service Delivery  
          Systems (2006), these guidelines specify that appointed counsel,  
          "should receive training in understanding child emotional and  
          brain development, substance abuse, mental health issues and  
          educational rights issues, such as special education and  
          educational accommodation. With the scope of representation  
          continually expanding, counsel shall be encouraged to exceed the  
          mandatory minimum training required by the State Bar with  
          special emphases on training in areas of juvenile practice."

          Although not keyed as a state-mandated local program, to the  
          extent the minimum hours of training and education established  
          by the Judicial Council include mandated delinquency-specific  
          training areas in its adopted rules of court, even if within the  
          State Bar minimum standard of 25 hours of approved MCLE credit  
          every three years, local costs for continued education training  
          courses for public defenders and court appointed counsel  
          representing juveniles in delinquency proceedings could result  
          in increased costs to local entities, including county-operated  
          public defender offices, that could be subject to reimbursement  
          by the state if so determined by the Commission on State  
          Mandates. 

          

          Based on the DOJ report, Juvenile Justice in California 2011,  
          there were 73,639 juvenile petitions filed in 2011. Of the cases  
          represented, nearly 26 percent were represented by court  
          appointed counsel, slightly more than 67 percent were  
          represented by public defenders, and about seven percent of  
          cases were represented by private counsel or other. The number  
          of attorneys required to represent the juvenile petitions filed  
          annually is estimated at about 625 attorneys based on an annual  
          juvenile caseload of 50 cases for court appointed counsel and  
          200 for public defenders. Assuming $150 to $200 for an  
          eight-hour training course would result in potentially  








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          state-reimbursable costs in excess of $100,000 (General Fund)  
          for the minimum number of attorneys estimated to be required to  
          meet the representative caseload. It should be noted costs would  
          likely be higher, however, as juvenile delinquency cases would  
          not necessarily encompass an attorney's full caseload, and many  
          more attorneys could complete the training to meet the  
          requirements.


          Alternatively, to the extent the minimum training and education  
          standards result in the need for counties to utilize more  
          experienced counsel (at higher cost) could also result in  
          increased ongoing costs, potentially significant and  
          state-reimbursable, to county public defenders' offices. 

          Contract costs for appointed counsel could also be impacted by  
          the new minimum standards. In the UC Davis article noted above,  
          the author reports, "Disturbingly, most of the contracts  
          compensate appointed counsel on a flat fee rate for the case, or  
          a lump sum based on exceedingly low per case assumptions that  
          would not cover even a fraction of the work required for  
          competent representation in the simplest case." Increases to  
          contract fee schedules, via increases to flat fee/lump sum or  
          transition to an hourly rate compensation system to account for  
          the increased training and education standards, could  
          potentially increase annual contract costs to local  
          jurisdictions for appointed delinquency counsel. The magnitude  
          of costs is unknown, but could be significant, and would be  
          dependent upon the level of training and education ultimately  
          established by the Judicial Council and the varying impacts to  
          local jurisdictions to meet the new standards.


          To the extent the establishment of minimum qualifications for  
          court appointed counsel in delinquency proceedings results in  
          improved representation, substantial long-term cost savings from  
          reduced incarceration, recidivism, and ultimately, more positive  
          lifelong outcomes for youth, could result.
          
          Recommended Amendments: This bill contains numerous codified  
          findings and declarations. In the interest of code clarity and  
          efficiency, staff recommends the bill be amended to place the  
          findings and declarations in an uncodified section of the bill.









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          It appears the Judicial Council has the authority to establish  
          the rules of court proposed in this measure in the absence of  
          legislation. If the intent is to encourage the Judicial Council  
          to take action sooner than otherwise would occur, the author may  
          wish to consider an amendment to specify a date by which the  
          Judicial Council must adopt the rules of court.

          Author amendments specify the minimum hours of training and  
          education established by the Judicial Council shall not increase  
          the minimum number of MCLE hours required of all attorneys by  
          the State Bar.