BILL ANALYSIS Ó SENATE COMMITTEE ON APPROPRIATIONS Senator Ricardo Lara, Chair 2015 - 2016 Regular Session AB 703 (Bloom) - Juveniles: attorney qualifications ----------------------------------------------------------------- | | | | | | ----------------------------------------------------------------- |--------------------------------+--------------------------------| | | | |Version: April 13, 2015 |Policy Vote: PUB. S. 5 - 1 | | | | |--------------------------------+--------------------------------| | | | |Urgency: No |Mandate: No | | | | |--------------------------------+--------------------------------| | | | |Hearing Date: June 22, 2015 |Consultant: Jolie Onodera | | | | ----------------------------------------------------------------- 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 AB 703 (Bloom) Page 1 of ? 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 AB 703 (Bloom) Page 2 of ? 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. AB 703 (Bloom) Page 3 of ? 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. AB 703 (Bloom) Page 4 of ? 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 AB 703 (Bloom) Page 5 of ? 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 AB 703 (Bloom) Page 6 of ? 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. -- END --