BILL ANALYSIS Ó
AB 703
Page 1
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
AB 703
Page 2
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
AB 703
Page 3
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.
AB 703
Page 4
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
AB 703
Page 5
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).)
AB 703
Page 6
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
AB 703
Page 7
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
AB 703
Page 8
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
AB 703
Page 9
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.
AB 703
Page 10
(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
AB 703
Page 11
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
AB 703
Page 12
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