BILL ANALYSIS                                                                                                                                                                                                    Ó



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          Date of Hearing:  April 7, 2015


                           ASSEMBLY COMMITTEE ON JUDICIARY


                                  Mark Stone, Chair


          AB 703  
          (Bloom) - As Amended March 23, 2015


          SUBJECT:  JUVENILES: ATTORNEY QUALIFICATIONS


          KEY ISSUE:  SHOULD THE JUDICIAL COUNCIL ADOPT STANDARDS OF  
          TRAINING, CLIENT CONTACT, AND EXPERIENCE FOR ATTORNEYS WHO  
          REPRESENT MINORS IN JUVENILE DELINQUENCY PROCEEDINGS SIMILAR TO  
          THOSE NOW IN PLACE FOR ATTORNEYS WHO REPRESENT MINORS IN  
          JUVENILE DEPENDENCY CASES?


                                      SYNOPSIS


          There are serious and long-term repercussions to minors, their  
          families, and their communities from adjudications by juvenile  
          delinquency courts.  Because of these serious long-term  
          consequences, adjudications of delinquency must measure up to  
          the essentials of due process and fair treatment as required by  
          the Due Process Clause of the Fourteenth Amendment of our  
          Constitution.  Unfortunately, because of high caseloads, limited  
          experience, and inconsistent training, the quality of  
          representation offered by attorneys in these matters do not  
          always measure up to Constitutional standards.  This bill would  
          require the Judicial Council to establish minimum training,  
          client contact, and experience standards for attorneys who  
          represent minors in juvenile delinquency cases.  These standards  








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          would be similar to those previously adopted by the Judicial  
          Council for juvenile dependency matters.  Other states have  
          adopted standards like those proposed by this bill.  The bill is  
          supported by a number of organizations, including Children Now  
          and Public Counsel and has no reported opposition.


          SUMMARY:  In order to raise the standards of training and  
          experience of attorneys who represent minors in juvenile  
          delinquency proceedings, this bill requires counsel to have  
          sufficient contact with clients.  It also requires the Judicial  
          Council to establish minimum hours of training and education  
          necessary for attorneys to be appointed as counsel in juvenile  
          delinquency proceedings.  Specifically, this bill:


             1)   Requires counsel appointed to represent youth in  
               proceedings under Welfare and Institutions Code Sections  
               601 and 602 to do all of the following:
             a)   Provide effective, competent, diligent, and  
               conscientious advocacy and make rational and informed  
               decisions founded on adequate investigation and  
               preparation.


             b)   Provide legal representation based on the client's  
               expressed interests, and maintain a confidential  
               relationship with the minor.


             c)   Confer with the minor prior to each court hearing, and  
               have sufficient contact with the minor to establish and  
               maintain a meaningful and professional attorney-client   
                relationship, including in the postdispositional phase.


             d)   When appropriate, consult with social workers, mental  
               health professionals, educators, and other experts  
               reasonably necessary for the preparation of the minor's  








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               case, and, when appropriate, seek appointment of those  
               experts pursuant to Sections 730 and 952 of the Evidence  
               Code.


             2)   Requires the Judicial Council, in consultation and  
               collaboration with delinquency defense attorneys, judges,  
               and other justice partners including child development  
               experts, to adopt rules of court by July 1, 2016, to do all  
               of the following:


             a)   Establish minimum hours of training and education, or  
               sufficient experience in delinquency proceedings which  
               demonstrates competence, necessary for attorneys to be  
               appointed as counsel in delinquency proceedings. 


             b)   Establish required training areas related to issues  
               affecting minors in the delinquency system that are  
               necessary for attorneys to be appointed as counsel in  
               delinquency proceedings. 


             c)   Encourage public defender offices and agencies that  
               provide representation in proceedings under Welfare and  
               Institutions Code Sections 601 and 602 to provide training  
               on juvenile delinquency issues that the State Bar has  
               approved for MCLE credit.


             d)   Provide that experts whose appointment is requested by  
               delinquency attorneys, and social workers employed to work  
               with the delinquency attorney, are agents of the attorneys  
               and require those experts and social workers to adhere to  
               the attorney-client privilege under Article 3 (commencing  
               with Section 950) of Chapter 4 of Division 8 of the  
               Evidence Code. 









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          EXISTING LAW:  


             1)   Provides that minors under the age of 18 years may be  
               adjudged to be a ward of the court where they "persistently  
               or habitually refuse to obey the reasonable and proper  
               orders or directions of his or her parents, guardian, or  
               custodian," are "beyond the control of that person,"  
               "violated any ordinance of any city or county of this state  
               establishing a curfew based solely on age . . .  ," or are  
               habitually truant, as specified.  (Welfare and Institutions  
               Code Section 601.  All further statutory references are to  
               the Welfare and Institutions Code, unless otherwise  
               indicated.)


             2)   Provides that minors under the age of 18 years may be  
               adjudged to be a ward of the court for violating "any law  
               of this state or of the United States or any ordinance of  
               any city or county of this state defining crime," as  
               specified.  (Section 602.)  


             3)   Provides that when a minor is adjudged a ward of the  
               court on the ground that he or she is delinquent -  
               delinquency generally pertaining to the status and criminal  
               conduct described above - the court may make any and all  
               reasonable orders for the care, supervision, custody,  
               conduct, maintenance, and support of the minor, including  
               medical treatment, subject to further order of the court,  
               as specified.  (Section 727(a).)


             4)   Requires that counsel appointed in a dependency case  
               shall have a caseload and training that ensures adequate  
               representation of the child.i  (Section 317(c).)
             5)   Requires the Judicial Council to promulgate rules of  
               court that establish caseload standards, training  








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               requirements, and guidelines for appointed counsel for  
               dependent minor children.  (Section 317(c).)


          FISCAL EFFECT:  As current in print this bill is keyed fiscal.


          COMMENTS:  Under both the Sixth Amendment to the United States  
          Constitution and article I, section 15, of the California  
          Constitution, a criminal defendant has the right to the  
          effective assistance of counsel.  (People v. Ledesma (1987) 43  
          Cal.3d 171, In re Edward S. (2009) 173 Cal.App.4th 387, 406.)   
          Juveniles have a constitutional right to counsel, and other  
          associated rights to provide due process rights in juvenile  
          proceedings.  (In re Gault (1967) - 387 U.S. 1 [abrogated on  
          other grounds in Allen v. Ill. (1986) 478 U.S. 364].)  An  
          adjudication of delinquency "must measure up to the essentials  
          of due process and fair treatment as required by the Due Process  
          Clause of the Fourteenth Amendment of our Constitution."  (Id.,  
          at pp. 30-31.) 


          When minors are tried in the juvenile court, where proceedings  
          are technically not criminal and rehabilitation, rather than  
          punishment, is the goal, imprisonment in state prison cannot be  
          ordered.  Nevertheless, the stakes are high for the minors  
          themselves, as well as their families and communities.


               Even a relatively minor offense exposes youth to  
               life-changing consequences. Because juveniles have not yet  
               developed mature judgment, delinquency representation  
               requires counsel to have special skills both in the defense  
               of the case and in working with young clients. Competent  
               representation is needed to preserve the integrity of the  
               justice system, prevent wrongful conviction, and reduce  
               unnecessary incarceration. (Burrell, 314 UC Davis Journal  
               of Juvenile Law & Policy Vol. 16:1 (2012).)









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          The First District Court of Appeals concluded in In re Edward S.  
          that the performance of appointed counsel for a minor accused of  
          attempting to molest a minor under the age of 14 was deficient  
          because the attorney "(1) failed to investigate potentially  
          exculpatory evidence, (2) sought an inadequate continuance based  
          on a mistake of law, and (3) failed to move for a substitution  
          of counsel knowing he was unable to devote the time and  
          resources necessary to properly defend appellant."  (In re  
          Edward S., supra, Cal.App.4th at p. 387.)  In its discussion,  
          the court mentioned the seriousness of the allegations against  
          the minor: a violation of Penal Code Section 288(a), which is a  
          serious felony and "strike" under state law that would require  
          lifetime registration as a sex offender.  (Ibid.)  


           The stakes are similarly high in juvenile dependency matters,  
          where parents can lose custody of their children and ultimately  
          have their parental rights terminated and children can be  
          removed from their homes and be placed with strangers.   
          Recognizing the importance of competent representative in  
          juvenile dependency matters, the Legislature has imposed special  
          requirements and duties on attorneys who handle those cases.   
          For example, Section 317 requires that counsel appointed in a  
          dependency case "shall have a caseload and training that ensures  
          adequate representation of the child."  (Section 317(c).)   
          Likewise, the California Rules of Court (promulgated by the  
          Judicial Council pursuant to Section 317 (c)) establish caseload  
          standards, training requirements, and guidelines for appointed  
          counsel for dependent minor children.  (California Rule of Court  
          5.660(d).)


          This bill seeks to impose similar training and competency  
          requirements on attorneys who represent minors in delinquency  
          cases.  In support of the bill, the author writes: 


               Juvenile delinquency practice is a specialty area of the  








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               law, with its own ethical duties, procedures, timelines,  
               and case law.  It requires counsel to be knowledgeable in  
               traditional criminal law, but also in adolescent  
               development and rehabilitative services. Although young  
               people in juvenile delinquency proceedings have the right  
               to be represented by competent legal counsel, close to half  
               of California delinquency defense counsel begin their  
               practice with zero training in juvenile specific law and  
               practice.  This results in wrongful conviction, over  
               incarceration, unnecessary costs in legal challenges, and a  
               variety of costs in relation to future delinquency, when  
               youth do not have their needs addressed.   Because the  
               system depends on all players in the court process being  
               able to competently uphold their part, ill-trained  
               attorneys also harm the integrity of the juvenile justice  
               system.  Further, young people who are represented by such  
               attorneys understandably perceive the system as unfair -  
               not the kind of civics lesson we want them to receive.


               Many of the most common mistakes made by delinquency  
               counsel could be avoided if counsel had basic knowledge  
               about their ethical duties and training in the essentials  
               of juvenile law and procedure, how to work with  
               adolescents, and how to assure that their clients receive  
               appropriate rehabilitative services.  Dependency counsel  
               for children are already required to have such training,  
               but California has not yet assured that lawyers for youth  
               in delinquency cases have the requisite knowledge and  
               skills to provide competent representation.


               This bill sets forth the basic duties of juvenile  
               delinquency defense counsel with respect to representing  
               the expressed interests of the client, confidentiality,  
               investigation of the case, use of experts, and maintenance  
               of an ongoing relationship with the client.  The bill also  
               requires the Judicial Council, by July 1, 2016, to  
               establish minimum hours of training and education necessary  








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               to be appointed as counsel in delinquency proceedings,  
               required training areas, and provisions for exemption of  
               experienced attorneys.  The required training will count  
               toward the State Bar required continuing legal education  
               requirements that California attorneys must complete.  This  
               is a modest change that will vastly improve current  
               practice in the state and help to ensure the integrity of  
               the juvenile justice system.


          Evidence of Inadequate Quality of Legal Representation of Youth  
          in the Delinquency System - in California and the Nation.  In  
          1995, the American Bar Association assessed the state of legal  
          representation in juvenile delinquency courts by conducting a  
          national survey of juvenile defenders, as well as site visits to  
          several jurisdictions, interviews with people working in the  
          field, client interviews, and an extensive literature search.   
          Information was sought on juvenile access to counsel, quality of  
          representation, the role of counsel in delinquency proceedings,  
          and promising approaches to effective representation.  The  
          survey found that while many attorneys "vigorously and  
          enthusiastically represented their young clients," such  
          high-quality representation "was not widespread and serious  
          concern was raised about whether the interests of many young  
          people in juvenile courts were significantly compromised."   
          (Call for Justice: An Assessment of Access to Counsel and  
          Quality of Representation in Delinquency Proceedings (1995)  
          Puritz, Burrell, Schwartz, Soler, and Warboys, American Bar  
          Association, Washington, DC.)  
           https://www.ncjrs.gov/App/Publications/abstract.aspx?ID=162231  ) 


          Almost ten years later, a follow-up survey found that some  
          conditions had improved, but many problems remained.  For  
          example, although the U.S. Bureau of Justice Assistance  
          recommends an annual caseload no greater than 200 to 250 for  
          public defenders handling juvenile cases on a full-time basis,  
          national and state studies indicate that caseloads are much  
          larger. The average juvenile caseload in the ABA's national  








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          survey was 300 (of a total caseload exceeding 500).  
          (  https://www.ncjrs.gov/pdffiles1/ojjdp/204063.pdf  )


          In California, A Loyola Law School report released last year  
          analyzed about 3,000 Los Angeles County juvenile cases and  
          concluded that, on average, youths represented by panel  
          attorneys got more severe convictions and heavier sentences than  
          those represented by public defenders.  The researchers also  
          found that public defenders were more active than panel  
          attorneys in filing motions, bringing in experts and seeking  
          pretrial release of their clients.  Advocates for youth  
          attribute the discrepancy in quality, among other things, to  
          greater experience and training of attorneys working in the  
          public defender's office and flat fees for panel attorneys,  
          which according to critics, result in a disincentive to  
          investigate cases and file motions.   
          (  http://articles.latimes.com/2014/feb/11/local/la-me-juvenile-def 
          ense-20140212  )  


          Low-quality legal representation in juvenile delinquency cases  
          has a disproportionately negative impact on economically  
          disadvantaged families and communities of color.  According to  
          the author:


               In 2013, there were 58,001 juvenile court petitions filed  
               in California, and youth in 43,198 (92%) of those petitions  
               were represented by a court appointed attorney.  That  
               number includes 31,489 represented by a public defender,  
               and 11,709 by other appointed counsel.   (Source: Juvenile  
               Justice in California 2013, California Department of  
               Justice, Criminal Justice Statistics Center, Table 20.)


               Of the 43,198 cases in which youth were represented by  
               appointed counsel in 2013, fully 35,618 involved youth who  
               are Black, Latino or of other non-white race/ethnicity.   








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               (Source: Juvenile Justice in California 2013, California  
               Department of Justice, Criminal Justice Statistics Center,  
               Table 20.)


          This bill may help correct such disparities.  According to the  
          Youth Law Center, co-sponsor of AB 703:


               [T]his bill will help to prevent wrongful conviction,  
               unnecessary incarceration, and inappropriate service  
               orders.  It will help young people coming before the  
               juvenile court to perceive the system as fair and to have a  
               meaningful opportunity to be heard.  Assuring competent  
               representation will also help to reduce racial disparities  
               in the justice system. . . . AB 703 seeks to end the very  
               common practice of allowing untrained attorneys to practice  
               on poor youth of color.  The constitutional right to  
               competent legal representation demands that lawyers  
               representing children in juvenile court have at least some  
               training in the essentials of juvenile delinquency  
               representation.


          Response of National Working Groups and Other States - Laws  
          Similar to AB 703.  With the support of the John D. and  
          Catherine T. MacArthur Foundation and under the rubric of the  
          Juvenile Indigent Defense Action Network, the National Juvenile  
          Defender Center drafted a detailed set of standards for over a  
          5-year period.  These standards were drafted, promulgated, and  
          reviewed by multi-disciplinary teams with the guidance and  
          support of juvenile indigent defense experts and consultants  
          from across the nation.  These multi-disciplinary teams were led  
          by juvenile defenders and included public defenders, appointed  
          counsel, law school clinicians, non-profit attorneys, judges,  
          legislators, prosecutors, probation officers, clinicians,  
          government officials, advocates, philanthropists, and a myriad  
          of other juvenile defense stakeholders.   
          (  http://njdc.info/wp-content/uploads/2013/09/NationalJuvenileDefe 








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          nseStandards2013.pdf)   


          At least partly in response to the MacArthur Foundation work, at  
          least 12 other states have adopted standards for the competence  
          of juvenile delinquency counsel.


          Prior Related Legislation:  SB 988 (Liu, 2012) required defense  
          attorneys in delinquency cases to have a minimum of 8 hours of  
          continuing education - held on suspense in Senate  
          Appropriations.


          SB 166 (Liu, 2013) required the Judicial Council to establish  
          minimum training and education standards for attorneys in  
          juvenile delinquency cases - held on suspense in Senate  
          Appropriations.


          REGISTERED SUPPORT / OPPOSITION:




          Support


          East Bay Children's Law Offices (co-sponsor)
          Pacific Juvenile Defender Center (co-sponsor)


          Youth Law Center (co-sponsor)


          Children Now


          National Center for Lesbian Rights








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          National Center for Youth Law


          Public Counsel


          San Francisco Public Defender Jeff Adachi




          Opposition


          None on file


          Analysis Prepared by:Alison Merrilees / JUD. / (916) 319-2334