BILL ANALYSIS Ó
SENATE COMMITTEE ON APPROPRIATIONS
Senator Ricardo Lara, Chair
2015 - 2016 Regular Session
AB 703 (Bloom) - Juveniles: attorney qualifications
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|Version: April 13, 2015 |Policy Vote: PUB. S. 5 - 1 |
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|Urgency: No |Mandate: No |
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|Hearing Date: June 22, 2015 |Consultant: Jolie Onodera |
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This bill meets the criteria for referral to the Suspense File.
Bill
Summary: AB 703 would require the Judicial Council, by July 1,
2016, to adopt rules of court regarding the establishment of
minimum hours of training and education necessary to be
appointed as counsel in delinquency proceedings, as specified.
Fiscal
Impact:
One-time minor costs of less than $10,000 (General 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 and district attorneys,
resulting in increased costs to local agencies determined to
be a reimbursable state mandate.
To the extent the minimum qualifications established result
in more experienced representation in delinquency
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proceedings, potential long-term future cost savings
(General Fund) to the criminal justice system in reduced
incarceration and recidivism.
*Trial Court Trust Fund
Background: According to the Department of Justice (DOJ) report on
juvenile justice in California, approximately 97,000 juveniles
were arrested in 2013, with about 58,000 cases referred to the
juvenile court for disposition and largely represented by public
defenders and court-appointed counsel (92 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
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."
An 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
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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, by July 1, 2016,
in consultation and collaboration with delinquency defense
attorneys, judges, and other justice partners including child
development experts, to adopt rules of court to do all of the
following:
Establish minimum hours of training and education, or
sufficient recent experience in delinquency proceedings in
which the attorney has demonstrated competence, necessary
in order to be appointed as counsel in delinquency
proceedings.
Provide that training hours approved by the State Bar
for Minimum Continuing Legal Education (MCLE) credit are to
be counted toward the MCLE hours required of all attorneys
by the State Bar.
Establish required training areas that may include, but
are not limited to, an overview of juvenile delinquency law
and procedure, child and adolescent development, special
education, competence and mental health issues, counsel's
ethical duties, advocacy in the post-dispositional phase,
appellate issues, direct and collateral consequences of
court involvement for a minor, 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.
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.
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This bill provides that counsel appointed to represent youth in
juvenile delinquency proceedings shall do all of the following:
Provide effective, competent, diligent, and
conscientious advocacy and make rational and informed
decisions founded on adequate investigation and
preparation.
Provide legal representation based on the client's
expressed interests, and maintain a confidential
relationship with the minor.
Confer with the minor prior to each court hearing, and
have sufficient contact with the minor establish and
maintain a meaningful and professional attorney-client
relationship, including in the postdispositional phase.
When appropriate, delinquency attorneys should consult
with social workers, mental health professionals,
educators, and other experts reasonably necessary for the
preparation of the minor's case, and, when appropriate,
seek appointment of those experts, as specified.
Provides that nothing specified in this subdivision of
the bill is to be construed to modify the role of counsel,
as specified.
This bill also includes numerous uncodified legislative findings
and declarations.
Prior Legislation: SB 166 (Liu) 2013 was similar to this
measure. This bill was held on the Suspense File of this
Committee.
SB 988 (Liu) 2012 was substantially similar to SB 166 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 or experience 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 2013,
there were 84,740 juvenile petitions filed in 2013. Of the cases
represented, about 25 percent were represented by
court-appointed counsel, slightly more than 67 percent were
represented by public defenders, and less than eight 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 708 attorneys based on an annual
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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
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:
To contain potential costs, staff recommends an amendment to
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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.
To clarify the bill's intent, staff recommends an amendment
to specify the minimum hours of training and education
established by the Judicial Council apply to defense counsel
in delinquency proceedings.
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