Ethics and the very best practice For Florida Juvenile Defenders August 2016

Agenda

Professional Responsibility Standards generate ideal advocacy Best Practices can help Model Rules guide us Case law can inform

Or do they compliment each other? What controls? Rules Standards Case law Or do they compliment each other?

ABA Model Rules of Professional Conduct Florida Rules of Professional Conduct ABA Model Rules of Professional Conduct

AGENDA Competence Who can practice? UPL Scope of Representation Communication Candor Toward Tribunal Practical Applications

Competence of Child’s LAWYER FL ST BAR RULE 4-1.1 A lawyer shall provide competent representation to a client. Competent representation requires legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

WHAT IS YOUR ROLE? COUNSELOR / ATTORNEY

We better THINK.

Child’s Preferences Who decides what motions to bring? Whether to bring any? What about a parent who wants case to be over? What about a parent who overborns will of the child to plea case without motions?

WHAT IS A CHILDREN’S LAWYER? What is your role? What must you do? What are your ethical duties? Answers influenced by the ABA Standards/Model Rules

UNAUTHORIZED PRACTICE OF LAW, FL ST BAR RULE 4-5.5 A lawyer shall not practice law in Florida in violation of the regulation of the legal profession in Florida But a lawyer admitted in another state may provide legal services on a temporary basis in Florida that: are undertaken in association with a lawyer who is admitted to practice in Florida and who actively participates in the matter; are in or related to a pending or potential proceeding before a tribunal in this or another jurisdiction, if the lawyer is authorized by law or order to appear in such proceeding… in an arbitration, mediation, or ADR program where no pro hac vice admission is required…  

Benefits of WISE COUNSEL: Bar Rule 12 EMERITUS ATTORNEYS PRO BONO PARTICIPATION PROGRAM "emeritus attorney" = another state and in-house a certificate from a supervising legal aid organization a certificate from the highest court where licensed to practice law a sworn statement to abide by the Florida Rules and will not receive compensation for legal services authorized under this rule.

SCOPE!

Obj and Scope = Effected by Competence of client 4-1.2 (a) Lawyer to Abide By Client’s Decisions “a lawyer shall abide by a client’s decisions concerning the objectives of the representation, and … reasonably consult with the client as to the means by which they are to be pursued. Subject to communication rules (1.4) “explain to allow informed decisions) Subject to limited scope (below)

Competence of Child Client - Florida “When a client’s ability to make adequately considered decisions in connection with the representation is impaired, whether because of minority, mental disability or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal lawyer-client relationship with the client.” Comment “Intermediate degrees of competence” “Children a young as 5 or 6 … entitled to weight” RULE 4-1.14 Rules Regulating the Florida Bar

Competence? Who decides who brings a competence motion? How is a lawyer qualified to evaluate competence? Doesn’t this bleed into best interest advocacy?

Great Rules – But no help Limitation of Objectives of Representation 4-1.1 (c) If not prohibited by law or rule, a lawyer and client may agree to limit the objectives or scope of the representation if the limitation is reasonable under the circumstances and the client consents in writing after consultation. If the attorney and client agree to limit the scope of the representation, the lawyer shall advise the client regarding applicability of the rule prohibiting communication with a represented person.

Lawyer’s Duties in Hearing Make motions and objections File Briefs Preserve issues for appeal Present evidence and witnesses ABA Juvenile Justice Standards

Actions: Establish Trust Establish trust relationship Provide advice and counsel Advocate Zealously “You can’t always get what you want But if you try sometimes, you just might find, you get what you need.” The Stones

Model Rules - Counselor Rule 2.1 Advisor In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client's situation.

Professional Responsibility Diligence Counselor Duty of Loyalty Confidentiality

Communication and Confidentiality and Candor Toward the Tribunal

Florida Rules = Model Rules Rule 1.4: Communication (a) A lawyer shall: (1) promptly inform the client of any decision or circumstance with respect to which the client's informed consent…is required… (2) reasonably consult with the client about the means by which the client's objectives are to be accomplished; (3) keep the client reasonably informed about the status…

Florida Rules = Model Rules Rule 1.4: Communication (continued…) (a) A lawyer shall: (4) promptly comply with reasonable requests for information; and (5) consult with the client about …limitation … by the Rules of Professional Conduct or other law. (b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

Who’s decision is it whether or not to plea? ALWAYS THE CLIENT But what about the parent/guardian? What if parent objects?

Advice v. Persuasion Can we guide without influencing? Should we influence? Do we influence without knowing it? Don’t we owe our client our judgment?

Model Rules -= Florida Rule ALMOST Rule 1.6: Confidentiality of Information (a) A lawyer shall/must (FL) not reveal information relating to the representation of a client unless the client gives informed consent

Client Confidentiality How does it differ from an adult client relationship? What if child shares facts that make motions untrue? What if child shares facts that defeat the motion?

Model Rules - Exceptions Rule 1.6: Confidentiality of Information (b) A lawyer may reveal information … to the extent the lawyer reasonably believes necessary: (1) to prevent…death or substantial bodily harm; (2) to prevent the client from committing a crime… (3) to prevent, mitigate or rectify … injury … (4) to secure legal advice about lawyer's compliance… (5) to establish a …defense on behalf of the lawyer… (6) to comply with other law or a court order.

Confidentiality of Information Rule 4-1.6 Not the MODEL (a) Consent Required to Reveal Information. A lawyer must not reveal information relating to representation of a client except as stated in subdivisions (b), (c), and (d), unless the client consents after disclosure to the client. (b) When Lawyer Must Reveal Information. A lawyer shall reveal such information to the extent the lawyer reasonably believes necessary: (1) to prevent a client from committing a crime; or (2) to prevent a death or substantial bodily harm to another.

(c) When Lawyer May Reveal Information. A lawyer may reveal such information to the extent the lawyer reasonably believes necessary: (1) to serve the client's interest unless it is information the client specifically requires not to be disclosed; (2) …in a controversy between the lawyer and client; (3) to establish a defense to a criminal charge/civil claim against the lawyer… (4) to respond to allegations …concerning the lawyer's representation … (5) to comply with the Rules of Professional Conduct….. (6) Difference in employment … (f) When disclosure is mandated or permitted, the lawyer shall disclose no more information than is required to meet the requirements or accomplish the purposes of this rule.

(c) When Lawyer May Reveal Information. A lawyer may reveal such information to the extent the lawyer …reasonably believes necessary… How do you advise the client about that relationship? Can you promise any confidentiality at all?

Why is all this so important?

What is effect of juvenile justice case? Child Client ?

Consequences? ? Jail Immigration financial aid College Housing law enforcement Relationship to (Schools and jobs) Records

Good advocate considers the whole child ChildClient Delinquency Protection Child Housing Expulsion Education Special Benefits Public

Just one more …

Model Rules - Pro Bono Publico Rule 6.1 Voluntary Pro Bono Publico Service Every lawyer has a professional responsibility to provide legal services to those unable to pay. A lawyer should aspire to render at least (50) hours of pro bono publico legal services per year.