Current through 2024-13, March 27, 2024
1. Basic
Competency of Defense Counsel in Juvenile Proceedings
A. Before agreeing to defend a juvenile,
defense counsel has an obligation to make sure that they have sufficient time,
resources, knowledge and experience to offer quality representation to the
juvenile. Before defending a juvenile, defense counsel should observe juvenile
court, including every stage of a juvenile proceeding, and have a working
knowledge of juvenile law and practice.
B. Defense counsel should accept the more
serious and complex cases only after having had experience and/or training in
less complex juvenile matters. Where appropriate, defense counsel should
consult with more experienced counsel to acquire knowledge and familiarity with
all facets of juvenile representation, including information about the
practices of judges, prosecutors, juvenile community corrections officers, and
other court personnel.
C. There are
special hearings for a juvenile, such as a bind-over hearing, in which defense
counsel may not have the necessary skills and resources to represent the
juvenile. In those proceedings defense counsel may need to consult with or seek
co-counsel with adequate experience in these matters.
2. Prior to representing a juvenile, at a
minimum, defense counsel should receive training or be knowledgeable in the
following areas:
A. Information about
relevant federal and state statutes, court decisions and Maine court rules,
including but not limited to:
(1) Maine
Juvenile Code;
(2) Maine Rules of
Criminal Procedure; and
(3) Maine
Rules of Evidence;
B.
Placement options for detention and disposition; and
C. Adolescent development, needs, and
abilities.
3. Defense
counsel representing juveniles should annually complete Continuing Legal
Education relevant to the representation of juveniles. Additional legal
education may include, but is not limited to:
A. Adolescent mental health diagnoses and
treatment including the use of psychotropic medications;
B. How to read a psychological or psychiatric
evaluation and how to use these in motions including but not limited to those
involving issues of consent and competency relating to Miranda, search and
waivers;
C. Normal childhood
development (including brain development), developmental delays and mental
retardation;
D. Information on the
multidisciplinary input required in child-related cases, including information
on local experts who can provide consultation and testimony;
E. Information on educational rights
including special educational rights and services and how to access and
interpret school records and how to use them in motions including but not
limited to those related to consent and competency issues;
F. School suspension and expulsion
procedures;
G. Use and application
of the current assessment tool(s) used in your jurisdiction and possible
challenges that can be used to protect the juvenile clients;
H. Immigration issues regarding juveniles;
and
I. Cultural competence.
2. Basic Obligations of
the Attorney
A. Defense counsel should:
(1) Obtain copies of all pleadings,
discovery, and relevant notices;
(2) Participate in all proceedings,
negotiations, pretrial conferences, and hearings;
(3) Advise the juvenile concerning the
subject matter of the litigation, the juvenile's rights, the court system, the
proceedings, defense counsel's role, and what to expect throughout the process;
and
(4) Develop a theory and
strategy of the case to implement at hearings.
3. Conflicts of Interest
A. Defense counsel must be alert to all
potential and actual conflicts of interest that would impair their ability to
represent a juvenile. Loyalty and independent judgment are essential elements
in defense counsel's relationship to a juvenile. Conflicts of interest can
arise from defense counsel's responsibilities to another client, a former
client or a third person, or from defense counsel's own interests.
B. Joint representation of co-defendants is
not a per se> violation of the constitutional guarantee of
effective assistance of counsel. However, if defense counsel must forbear from
doing something on behalf of a juvenile because of responsibilities or
obligations to another client, there is a conflict. Similarly, if by doing
something for one client, another client is harmed, there is a
conflict.
C. If a conflict arises,
defense counsel should be cautious about permitting a juvenile to waive the
conflict. The waiver may have collateral consequences in other motions in the
case regarding the juvenile's competency to waive constitutional
protections.
D. Defense counsel
should not permit a parent or custodian to direct the representation or share
information unless disclosure of such information has been approved by the
juvenile. Especially when a parent is the alleged victim or has some other
adverse interest, defense counsel needs to ensure the confidentiality of the
attorney-client communication and independence of the judgment made by the
juvenile.
4. Client
Communications
A. Defense counsel should keep
the juvenile informed of the developments in the case, and the progress of
preparing the defense and should promptly comply with all reasonable requests
for information.
B. Defense counsel
should communicate with the juvenile in a manner that will be effective,
considering the juvenile's maturity, intellectual ability, language,
educational level, special education needs, cultural background, gender, and
physical, mental and emotional health. If appropriate, defense counsel should
request funds pursuant to Chapter 302, Procedures Regarding Funds for Experts
and Investigators, for an interpreter to facilitate communication with the
client and insist that the court provide necessary interpreter services at all
stages of court proceedings.
5. Client Confidentiality
A. Defense counsel should seek from the
outset to establish a relationship of trust and confidence with the juvenile.
Defense counsel should explain defense counsel's obligation of confidentiality
thus making privileged the juvenile's disclosures relating to the
case.
B. Defense counsel should
ensure that communications with a juvenile in an institution including a
detention center are confidential. One way to ensure confidentiality is to
stamp all mail as legal and confidential.
6. Case Organization
A. Defense counsel should maintain a juvenile
case file on each active case, and when appropriate, provide the case file to
successor attorneys. Defense counsel is expected to maintain all information
about the case's history and future proceedings, deadlines, dates, etc., on or
within the juvenile's case file so that it is readily discernible.
B. All case files must reflect the procedural
history of the case, and all other information necessary to render effective
representation, including copies of the charging documents, all discovery,
pleadings, plea offers, notes and other communications.
C. As part of the juvenile representation,
defense counsel should maintain relevant updated notes that record information
such as information obtained during all interviews of the juvenile; interviews
of witnesses, interviews of family members; juvenile's background and history;
conversations with the prosecutor regarding discovery, dispositional issues
including plea offers, trial issues; conversations with the juvenile community
correction officer(s); conversations with police officers or investigators;
telephone conversations regarding the case; conversations, consultation and
evaluation by experts, etc.
7. Continuity of Representation
Defense counsel should continue their representation through
all stages of the proceedings. Unless otherwise ordered by the court, defense
counsel should continue to represent the juvenile from the point of the initial
court proceedings through disposition, and any other related proceedings until
the case is closed.
8. Duty
of Stand-In Counsel
Defense counsel who is requested to stand in for another
assigned defense counsel at any hearing must (1) represent the juvenile
zealously as if it is his or her own client; (2) ensure that the juvenile knows
how to contact stand-in counsel in case he or she does not hear from the
defense counsel of record; (3) immediately communicate with the defense counsel
of record regarding upcoming dates/hearings, how to contact the juvenile,
placement of the juvenile, nature of charges, and other timely issues that the
defense counsel of record may need to know or address; and (4) immediately or
within a reasonable time thereafter provide to the defense counsel of record
all notes, documents, and any discovery received.
9. Caseloads
Defense counsel should not have such a large number of cases
that he or she is unable to comply with these guidelines. Before agreeing to
accept assignment, defense counsel has an obligation to make sure that he or
she has sufficient time, resources, knowledge, and experience to offer quality
legal services in a particular matter.
