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-clientrelationship, 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