1. Representing Juveniles in Family Court Ashley Case, Esq. Heather Scalzo, Esq.

2. Role of Counsel in Juvenile Delinquency Heather Scalzo, Esq. Byford & Scalzo, LLC

3. “Every child has the right to a competent attorney who will provide the highest level of professional guidance and advocacy.” Former Attorney General, Eric Holder

4. ETHICAL CONSIDERATIONS National Juvenile Defense Standards

5. Standard 1.1 Ethical Obligations of Juvenile Defense Counsel Counsel must provide competent, diligent, and zealous advocacy to protect the client’s procedural and substantive rights. a. Counsel must be skilled in juvenile defense, must be knowledgeable about adolescent development and the special status of youth in the legal system.

6. Standard 1.2 Elicit and Represent Client’s Stated Interests Counsel’s primary and fundamental responsibility is to advocate for the client’s expressed interests. a. Counsel may not substitute his or her own view of the client’s best interests for those expressed by the client. b. Counsel may not substitute a parent’s interests or view of the client’s best interests for those expressed by the client.

7. Standard 1.3 Specialized Training Requirements for Juvenile Defense At a minimum, counsel should: a. be familiar with state juvenile delinquency statutes, criminal statutes, case law, etc. that impact juvenile practice; b. be knowledgeable about developmental science; c. be properly trained in adolescent interviewing techniques; d. have training in communicating with young clients in a developmentally appropriate manner; e. be knowledgeable on consequences of juvenile adjudication

8. RULES OF PROFESSIONAL CONDUCT South Carolina

9. Expressed Interest Representation Rule 1.2: “[A] lawyer shall abide by the client’s decisions concerning the objectives of representation, and... Shall consult with the client as to the means by which they are to be pursued.” “In a criminal case, the lawyer shall abide by the client’s decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial, and whether the client will testify.”

10. Diminished Capacity Rule 1.14: “When a client’s capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority, mental impairment or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.

11. Conflicts of Interest – Rules of Professional Conduct Rule 1.8(f): A lawyer shall not accept compensation for representing a client from one other than the client unless: (1) The client gives informed consent…; (2) There is no interference with the lawyer’s independence or professional judgment or with the client-lawyer relationship; and (3) The information relating to representation of a client is protected as required by Rule 1.6

12. Practice Tips Inform parent that your exclusive obligation is to the juvenile client. You have an ethical obligation to represent only the expressed interests of the client. Explain and maintain clear role boundaries with the parent(s).

13. Confidentiality Rule 1.6(a): A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).

14. Counseling - Advisor Rule 2.1: “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.”

15. Interviewing & Counseling Tips for Youth It takes time One-on-one, age-appropriate dialogue Repeat information Start with broad open-ended questions and then narrow your questions Avoid leading questions Use visual aids where possible Do it at times when client is not hungry or tired

16. Conclusions Always keep an eye on competency Try to avoid making the decision yourself ◦ Make extra effort to engage the client ◦ Consult the client ◦ Seek help Maintain your confidences and your ethical responsibilities to your client Common pitfall: Advocating best interests of the child rather than the expressed interests of the client

17. Resources National Juvenile Defender Center http://njdc.info/ Children’s Law Center http://childlaw.sc.edu/ Department of Juvenile Justice

18. Prosecution of Juveniles in Family Court Ashley Case Assistant Solicitor Thirteenth Circuit Solicitor’s Office

19. Referral Process Law Enforcement for all criminal charges School District for truancy Guardian for Runaway and Incorrigible

20. Possible Tracks Dismissal Diversion ◦ Informal Contract with DJJ ◦ Arbitration ◦ Juvenile Diversion Services (JDS) Prosecute

22. Detention When a juvenile can be detained – Section 63-19-820 Detention hearings 48-hour hearing 10-day hearing 30-day hearing Exception to detention

23. Section 63-19-820 Juvenile is eligible for detention when s/he is: 1) charged with a violent crime (section 16-1-60) 2) charged with a crime, if committed by adult, would be a felony or misdemeanor other than a violent crime, and the child: a) current: probation, detained, awaiting adjudication b) demonstrable record of failure to appear c) record of violent conduct resulting in injury d) record of adjudications of other crimes AND i) flight risk or poses a threat of serious harm to others; or ii) instant offense involved use of firearm;

24. Section 63-19-820 continued 3) fugitive from another jurisdiction; 4) requests protection in writing that present an immediate threat of serious physical injury; 5) had in his possession a deadly weapon; 6) demonstrable record of failure to comply with prior placement orders (including house arrest) 7) has no suitable alternative placement and it is determined that detention is in the best interest of the child or necessary to protect the child or public or both; 8) charged with AB or ABHAN on school grounds, school official

25. Section 63-19-820 continued Detention is not mandatory for a child meeting the criteria if the child can be supervised adequately at home or in a less secure setting or program. A status offender must not be ordered detained for more than 24 hours unless the child was under a prior court order.

26. Exceptions to Detention Juveniles 11 and 12 years of age can only be detained with a Court Order Children under age 11 cannot be detained for any reason

27. Sentencing Probation ◦ Home Placement or Alternative Placement Evaluation ◦ Secure Evaluation ◦ Community (Local) Evaluation Commitment to DJJ ◦ Determinate Commitment (90 days or less) ◦ Indeterminate Commitment (not to exceed the juvenile’s 21 st birthday)

28. Sixteen-year old Adult If charged with a Class A, B, C, or D felony (Section 63-19-20) Complications if charged in both General Sessions and Family Court

29. Contact us! Ashley Case, Assistant Solicitor 864-467-5901 Heather Scalzo, Esq. 864-331-0111