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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