ROlE OF JUvENilE DEFENSE COUNSEl iN DEliNqUENcy COURt

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ROlE OF JUvENilE DEFENSE COUNSEl iN DEliNqUENcy COURt

Role of Juvenile Defense Counselin Delinquency CourtNJDCNational Juvenile Defender CenterSpring 2009


NJDCRole of Juvenile Defense Counselin Delinquency CourtWritten byRobin Walker SterlingIn collaboration withCathryn Crawford, Stephanie Harrison, and Kristin HenningNational Juvenile Defender CenterSpring 2009


B. Investigation...............................................................................................14C. Protecting Pretrial Due Process Rights..........................................15D. Protecting Due Process Rights at Adjudicatory Hearings......16E. Preparing for and Engaging in Dispositional Advocacy..........17F. Conducting Post-Disposition Representation..............................19G. Accessing Ancillary Services...............................................................204. Duty to Advise and Counsel............................................................. 22A. Pursuing Diversion Options................................................................22B. Ensuring Ethical Plea Agreements...................................................225. Duty of Communication.................................................................... 23A. Communication in Court.......................................................................23B. Communication outside of Court......................................................24C. Communication and Confidentiality................................................24D. Communication with Detained Clients...........................................24Endnotes...................................................................................... 25Appendix AABA Model Rules of Professional Conduct.......... 29Preamble and Scope.................................................................................. 29Preamble...............................................................................................................29Scope......................................................................................................................33ABA Model Rules of Professional Conduct......................................... 36Rule 1.1. Competence......................................................................................36iv


Rule 1.2 Scope of Representation and Allocation of AuthorityBetween Client and Lawyer..........................................................................38Rule 1.3 Diligence.............................................................................................43Rule 1.4 Communication................................................................................45Rule 1.6 Confidentiality of Information..................................................48Rule 1.14 Client with Diminished Capacity...........................................56Rule 2.1 Advisor................................................................................................61Appendix BTen Core Principles for Providing QualityPublic Defense Delivery Systems.................................... 63


Role of Juvenile Defense Counselin Delinquency CourtRole of JuvenileDefenseCounsel inDelinquencyCourtPreamble and ScopeA. The Origin of the Role of the Juvenile DefenderIn a series of cases starting in 1966, the United States SupremeCourt extended bedrock elements of due process to youthcharged in delinquency proceedings. Arguably the most importantof these cases, In re Gault 1 held that juveniles facingdelinquency proceedings have the right to counsel under theDue Process Clause of the United States Constitution, appliedto the states through the Fourteenth Amendment. The Courtadded juvenile defense counsel to rectify the dilemma ensnaringjuveniles across the country, in which juveniles received“the worst of both worlds . . . neither the protections accordedto adults nor the solicitous care and regenerative treatmentpostulated for children.” 2 The Court clearly observed thatjuvenile defense counsel’s role in delinquency proceedingsis unique and critical: “[t]he probation officer cannot act ascounsel for the child. His role . . . is as arresting officer andwitness against the child. Nor can the judge represent thechild.” 3 The Court concluded that no matter how many courtpersonnel were charged with looking after the accused child’sinterests, any child facing “the awesome prospect of incarceration”needed “the guiding hand of counsel at every step inRole of Juvenile Defense Counsel in Delinquency Court1


Role of JuvenileDefenseCounsel inDelinquencyCourtthe proceedings against him” for the same reasons that adultsfacing criminal charges need counsel. 4The introduction of advocates to the juvenile court systemwas meant to change delinquency proceedings in several keyways. First, it was meant to infuse the informal juvenile courtprocess with more of the jealously-guarded constitutionalprotections of adult criminal court and their attendant adversarialtenor. Perhaps more importantly, with attorneys explicitlyassigned to advocate on their behalf, juveniles accusedof delinquent acts were to become participants, rather thanspectators, in their court proceedings. The Court observedspecifically that juvenile respondents needed defenders toenable them “to cope with problems of law, to make skilledinquiry into the facts, to insist upon regularity of the proceedings,and to ascertain whether [the client] has a defense and toprepare and submit it.” 5With its decisions in Gault and other cases, 6 the Court movedthe treatment of youth in juvenile justice systems into the nationalspotlight. In 1974, with a goal of protecting the rightsof children, Congress enacted the Juvenile Justice and DelinquencyPrevention Act (JJDPA). 7 The JJDPA created the NationalAdvisory Committee for Juvenile Justice and DelinquencyPrevention, which was charged with developing nationaljuvenile justice standards and guidelines. The NationalAdvisory Committee standards, published in 1980, requirethat children be represented by counsel in delinquency mattersfrom the earliest stage of the process. 8At the same time, several non-governmental organizationsalso recognized the necessity of protections for youth in delinquencycourts. Beginning in 1971, and continuing over a tenyearperiod, the Institute of Judicial Administration (IJA) andthe American Bar Association (ABA) researched, developedand produced 23 volumes of comprehensive juvenile justicestandards, annotated with explicit policies and guidelines. 9The IJA/ABA Joint Commission on Juvenile Standards relied2National Juvenile Defender Center


upon the work of approximately 300 dedicated professionalsacross the country with expertise in the many disciplines relevantto juvenile justice practice, including the judiciary, socialwork, corrections, law enforcement, and education. The Commissioncirculated draft standards to individuals and organizationsthroughout the country for comments. The final standards,which were adopted by the ABA in 1982, were craftedto establish a model juvenile justice system, one that would notfluctuate in response to transitory headlines or controversies.Role of JuvenileDefenseCounsel inDelinquencyCourtBy the early 1980s, there was professional consensus that defenseattorneys owe their juvenile clients the same duty ofloyalty as adult clients. 10 That coextensive duty of loyalty requiresdefenders to represent the legitimate “expressed interests”of their juvenile clients, and not the “best interests” asdetermined by the attorney. 11B. Present State of Juvenile Defense: A Call for JusticeRecognizing the need for more information about the functioningof delinquency courts across the country, as part ofthe reauthorization of the JJDPA in 1992, Congress asked thefederal Office of Juvenile Justice and Delinquency Prevention(OJJDP) to address this issue. One year later, in 1993, OJJDPresponded to Congress’ request by funding the Due ProcessAdvocacy Project, led by the ABA Juvenile Justice Center,together with the Youth Law Center and the Juvenile LawCenter. The purpose of the project was to build the capacityand effectiveness of the juvenile defense bar to ensure thatchildren have meaningful access to qualified counsel in delinquencyproceedings. One result of this collaboration wasthe 1995 release of A Call for Justice: An Assessment of Accessto Counsel and Quality of Representation in Delinquency Proceedings,a national review of the legal representation of childrenin delinquency proceedings. 12 The first systemic national assessmentof its kind, the report laid the foundation for a closerexamination of access to counsel, the training and resourceRole of Juvenile Defense Counsel in Delinquency Court3


contacts at community-based programs to compose an individualizeddisposition plan; be able to enlist the client’s parentor guardian as an ally without compromising the attorney-clientrelationship; know the intricacies of mental healthand special education law, as well as the network of schoolsthat may or may not be appropriate placements for the client;and communicate the long- and short-term collateral consequencesof a juvenile adjudication, including the possible impacton public housing, school and job applications, eligibilityfor financial aid, and participation in the armed forces.Role of JuvenileDefenseCounsel inDelinquencyCourtThere are many juvenile defense attorneys who, in the face ofdaunting systemic and other obstacles, offer their clients zealous,holistic, client-centered advocacy. Unfortunately, as A Callfor Justice first revealed, these attorneys are the exception andnot the norm: in jurisdiction after jurisdiction, systemic andother barriers prevent juvenile defenders from realizing theconstitutionally-mandated vision of their role. For example,on average, juvenile defenders’ caseloads are staggeringlyhigh, and these crushing caseloads have redounding repercussions:plea agreements function as a case management tooland are entered into without previous, independent investigation;pre-trial advocacy to test the strengths and weaknessesof the government’s case is often set aside; and already scarceresources, stretched thin to provide basic services, like officespace, computers, desks, and files, are not available for investigators,social workers, and expert witnesses. Also, across thecountry, juvenile court suffers from a “kiddie court” mentalitywhere stakeholders do not believe that juvenile court isimportant. Finally, in some jurisdictions, because they viewjuvenile court first and foremost as an opportunity to “helpa child,” judges and other system participants undermine attorneys’efforts to challenge the government’s evidence andprovide zealous, client-centered representation, consideringsuch advocacy an impediment to the smooth function of thecourt. As a result, many juvenile courts still operate in a pre-Gault mode in which the defense attorney is irrelevant, realRole of Juvenile Defense Counsel in Delinquency Court5


Role of JuvenileDefenseCounsel inDelinquencyCourtlawyering cannot occur, and the fair administration of justiceis impeded.C. Goals of These PrinciplesThe Principles that follow are developed to describe theunique and critical role juvenile defense attorneys play injuvenile proceedings. Hundreds of interviews with juvenilejustice system stakeholders reveal that the juvenile defenseattorney’s role is perceived differently by different courtroomactors. While there are of course exceptions, across the country,prosecutors and probation officers often view zealous juveniledefense attorneys as obstructionists who overlook thecompelling needs of their clients in service to the single andmonolithic goal of “getting the client off, and communicate,in direct and indirect ways, that the defender should be lessadversarial. Similarly, judges rely on juvenile defense attorneysto advocate on the child’s behalf, but only as a necessarycog in the machinery of the appearance of fairness and of judicialeconomy, and not as a zealous, client-centered advocate.Juvenile defenders themselves are unsure of their role.Most understand that, in theory, they are bound to zealouslyrepresent their clients’ expressed interests. Nonetheless, inpractice, many yield to the unified pressure from other stakeholdersand from the seemingly irresistible momentum of theproceedings, and advocate for their clients’ best interests. Thereasons for this capitulation vary. Some set aside their ethicalobligation because of a genuinely misguided understandingof their role; others sacrifice zealous advocacy becausethey have to triage staggering caseloads supported by scantresources; still others bow to systemic barriers that interferewith their advocacy. The defenders’ role seems all the moreambiguous in specialty boutique courts, like drug court andmental health court.In the vision of the Gault Court, the juvenile defense attorneyis a critical check on the power of the state as it imperils the client’sliberty interests. Defenders are not obstructionists; they6National Juvenile Defender Center


protect the child’s constitutional rights. They do this throughtheir practical, everyday duties – from interviewing the childoutside of the presence of the child’s parents, to objecting toinadmissible but informative evidence at adjudicatory hearings,to advocating for the least restrictive alternative at disposition,to pressing, at every stage, for the client’s expressedinterests. Each of these day-to-day duties has its grounding indefense counsel’s mandatory ethical obligations. These Principlesserve to inform indigent defense providers and the leadershipof indigent defense organizations, judges, prosecutors,probation officers, and other juvenile justice stakeholders thespecifics of the role of defense counsel in the delivery of zealous,comprehensive and quality legal representation to whichchildren charged with crimes are constitutionally entitled.Role of JuvenileDefenseCounsel inDelinquencyCourtThe Role of Juvenile Defense Counsel1. Duty to Represent the Client’s Expressed InterestsABA Model Rules of Professional Conduct (Model Rules): Preamble;1.14(a) Client with Diminished Capacity; 1.2(a) Scope of Representationand Allocation of Authority between Client and LawyerAt each stage of the case, juvenile defense counsel acts as theclient’s voice in the proceedings, advocating for the client’sexpressed interests, not the client’s “best interest” as determinedby counsel, the client’s parents or guardian, the probationofficer, the prosecutor, or the judge. With respect to theduty of loyalty owed to the client, the juvenile delinquencyattorney-client relationship mirrors the adult criminal attorney-clientrelationship. In the juvenile defender’s day-to-dayactivities, the establishment of the attorney-client relationshipis animated by allocating the case decision-making, and practicingthe special training required to represent clients withdiminished capacity.Role of Juvenile Defense Counsel in Delinquency Court7


Role of JuvenileDefenseCounsel inDelinquencyCourtC. Diminished Capacity: Minority does not automaticallyconstitute diminished capacity such that a juveniledefense attorney can decline to represent the client’sexpressed interests. Nor does a juvenile’s makingwhat juvenile defense counsel considers to be a rashor ill-considered decision constitute grounds for findingthat the client suffers from diminished capacity. Infact, because of the unique vulnerabilities of youth, itis all the more important that juvenile defense attorneysfirmly adhere to their ethical obligations to articulateand advocate for the child’s expressed interest,and to safeguard the child’s due process rights. Inother words, in direct contrast to the pervasive informalitythat characterizes juvenile court practice in somany jurisdictions, minority sharpens defense counsel’sethical responsibilities, instead of relaxing them.1.In light of current brain development research,it is clear that minority critically affects thescope of the juvenile attorney- juvenile clientrelationship. Current brain development researchposits that youth are categorically lessculpable than the average adult offender. Thisresearch has gained wide acceptance, as indicatedmost recently by the United States SupremeCourt’s opinion in Roper v. Simmons,543 U.S. 551(2005), which struck down the juveniledeath penalty as unconstitutional. TheRoper Court concluded that youths are less culpablethan the average adult offender becausethey: (1) lack maturity and responsibility, (2)are more vulnerable and susceptible to outsideinfluences, particularly negative peer influences,and (3) are not as well formed in characterand personality as, and have a much greaterpotential for rehabilitation than, adults. Id. at569-570. This research requires juvenile defensecounsel to be adept at using age-appropriate10National Juvenile Defender Center


2.language, motivational interviewing, visualaids, and other techniques effective in communicatingwith, and more specifically, effectivein translating legal concepts to, children.It is crucial to recognize that this research doesnot provide an argument for counsel to disregarda child’s expressed interests merely becauseof the child’s minority. To the contrary,the unique vulnerabilities of youth, make itall the more important for the child’s lawyersto help the child identify and articulate his orher views to key players in the juvenile justicesystem. Any juvenile client capable of consideredjudgment is entitled to a normal attorneyclientrelationship. And, even youth of diminishedcapacity and other vulnerabilities haveviews, concerns and opinions that are entitledto weight in legal proceedings.Role of JuvenileDefenseCounsel inDelinquencyCourtAdditional sources:• IJA/ABA Juvenile Justice Standards, Standards Relating toCounsel for Private Parties (Juvenile Justice Standards): 3.1 TheNature of the Lawyer-Client Relationship; 5.2 Control and Directionof the Case; 9.3(a) Counseling Prior to Disposition• ABA Standards for Criminal Justice, Standards Relating to theDefense Function (Criminal Justice Standards): 4-3.1 Establishmentof Relationship2. Duty of Confidentiality and PrivilegeModel Rules: 1.6 Confidentiality of InformationJuvenile defense counsel is bound by attorney-client confidentialityand privilege. The duty of confidentiality that juveniledefense counsels owe their juvenile clients is coextensive withRole of Juvenile Defense Counsel in Delinquency Court11


Role of JuvenileDefenseCounsel inDelinquencyCourtthe duty of confidentiality that criminal defense counsels owetheir adult clients. This duty includes:A. No Exception for Parents or Guardians: There is noexception to attorney-client confidentiality in juvenilecases for parents or guardians. Practically, this factmeans that juvenile defense counsel has an affirmativeobligation to safeguard a client’s information orsecrets from parents or guardians; that interviewswith the client must take place outside of the presenceof the parents or guardians; and that parents orguardians do not have any right to inspect juveniledefense counsel’s file, notes, discovery, or any othercase-related documents without the client’s expressedconsent. While it may often be a helpful or even necessarystrategy to enlist the parents or guardians asallies in the case, juvenile defense counsel’s primaryobligation is to keep the client’s secrets. Informationrelating to the representation of the client includes allinformation relating to the representation, whateverits source.B. No Exception for Client’s Best Interests: There is noexception to attorney-client confidentiality in juvenilecases allowing disclosure of information in serviceto what counsel, parents or guardians, or any otherstakeholders deem to be the client’s best interests.Even if revealing the information might allow the clientto receive sorely-needed services, defense counselis bound to protect the client’s confidences, unless theclient gives the attorney express permission to revealthe information to get the particular services, or disclosureis impliedly authorized to carry out the client’scase objectives.C. Private Meeting Space: To observe the attorney’sethical duty to safeguard the client’s confidentiality,12National Juvenile Defender Center


attorney-client interviews must take place in a privateenvironment. This limitation requires that, at thecourthouse, juvenile defense counsel should arrangefor access to private interview rooms, instead of discussingcase specifics with the client in the hallways;in detention facilities, juvenile defense counsel shouldhave a means to talk with the client out of the earshotof other inmates and guards; and in the courtroom, juveniledefense counsel should ask for a private spacein which to consult with the client, and speak with theclient out of range of any microphones or recordingdevices.Role of JuvenileDefenseCounsel inDelinquencyCourtAdditional sources:• Juvenile Justice Standards: 3.3 Confidentiality3. Duties of Competence and DiligenceModel Rules: 1.1 Competence, 1.3 DiligenceA juvenile defense attorney provides competent, prompt, anddiligent representation based in legal knowledge, skill, thoroughpreparation, and ongoing training. 14 With respect to thejuvenile defender’s day-to-day activities, the Duties of Competenceand Diligence are expansive, encompassing the obligationsto investigate, to zealously protect the child’s due processrights from arrest through the close of the case, to engagein dispositional advocacy, and to access ancillary services.A. Comprehensive Skill Set: Juvenile defense counselpossesses a comprehensive skill set that meets the client’slegal, educational, and social needs.1. Competent representation in juvenile delinquencymatters requires legal training thatencompasses rules of evidence, constitutionallaw, juvenile law and procedure, and criminalRole of Juvenile Defense Counsel in Delinquency Court13


Role of JuvenileDefenseCounsel inDelinquencyCourtlaw and procedure, as well as trial skills, suchas examining witnesses, admitting documentsinto evidence, and making legal arguments beforethe court, and appellate procedure.2. Competent juvenile defense counsel is alsowell-versed in the areas of child and adolescentdevelopment. Child and adolescent developmentresearch intersects with counsel’srepresentation in many ways. For example,counsel might rely on recent developmentresearch in detention and disposition arguments.Counsel also might use the research tohelp counsel convey complex legal concepts inage-appropriate language.3. Competent juvenile defense counsel has aworking knowledge of and maintains contactswith experts in ancillary areas of lawthat often intersect juvenile delinquency matters,including but not limited to the collateralconsequences of adjudication and conviction,expungement, special education, abuse andneglect, mental health, cultural competency,child welfare and entitlements, and immigration4. Competent defense counsel engages in continuingstudy and education of juvenile-specificsubject areas and complies with all relevantcontinuing legal education requirements.B. Investigation: Juvenile defense attorneys promptlyinvestigate cases to find witnesses, examine forensicevidence, locate and inspect tangible objects and otherevidence that might tend to exculpate the client, thatmight lead to the exclusion of inculpatory evidence atadjudication or disposition, or that might buttress theclient’s potential defenses. This duty exists even when14National Juvenile Defender Center


the lawyer believes the client is guilty, and when theclient has confessed in interrogation, in interviewswith counsel, or to anyone else.1.Juvenile defense attorneys promptly take thenecessary steps to obtain discovery, includingfiling discovery requests, motions pursuant toBrady v. Maryland, and motions to compel ifthe prosecutor does not comply with counsel’srequest.Role of JuvenileDefenseCounsel inDelinquencyCourt2.3.Based on leads from the client and from discoveryreceived from the prosecutor, juveniledefense attorneys conduct independent investigationof, inter alia, the allegations against theclient, of police conduct, of witnesses’ backgrounds,and of any and all possible defensesand mitigating factors for disposition.Juvenile defense attorneys do not allow clientsto plead guilty without first reviewing thegovernment’s file, including police reports, resultsof forensic examinations and tests, photographs,and other evidence, discussing andpursuing possible exculpatory investigationleads, and providing a fair and informed assessmentof the strengths and weaknesses ofthe government’s case.C. Protecting Pretrial Due Process Rights: Juvenile defenseattorneys have a duty to protect the client’s pretrialdue process rights by obtaining discovery, filingmotions, and making arguments to protect the client’srights while serving the client’s expressed interests. 151.To ensure that the court system is not beingused for societal functions it was not meant toassume – for example, as the disciplinary armof the school system, or as a reflection of theRole of Juvenile Defense Counsel in Delinquency Court15


Role of JuvenileDefenseCounsel inDelinquencyCourtracial, ethnic and class biases that often markpolice arrest rates – juvenile defense attorneysfile pretrial motions that seek pretrial release,that advocate for individualized plans that offerthe least restrictive set of release conditionsnecessary to ensure the client’s return to courtand community safety, and that guard againstinfringement of the client’s federal or stateconstitutional rights before and during the arrest,including motions to suppress tangibleevidence, identifications, and statements.2.Juvenile defense attorneys also file pretrialmotions that clarify points of law, block the admissioninto evidence of inadmissible or prejudicialinformation, and otherwise ensure thatthe client will receive a fair trial.D. Protecting Due Process Rights at Adjudicatory Hearings:Juvenile defense counsel has a duty to protectthe client’s due process rights and to pursue vigorouslythe client’s expressed interests at adjudication.1. Juvenile defense counsel ensures that, as In reGault and its progeny clearly intended, juvenileadjudicatory hearings are adversarial proceedingsin which the state bears the burden toprove its case beyond a reasonable doubt withcredible, admissible evidence.2.In accord with this constitutional imperative,juvenile defense counsel ensures fairness inthe courtroom by litigating the case vigorouslyconsistent with the presumption of innocence,regardless of counsel’s opinion concerning eitherguilt or innocence or the client’s need forsocial, educational, and other services.16National Juvenile Defender Center


3.4.5.Juvenile defense counsel litigate adjudicatoryhearings aware of the elements of eachcharged allegation, the lesser-includeds foreach charge, all the client’s possible defenses,and relevant case law.Juvenile defense counsel fulfill their role underGault by adhering to and enforcing applicationof the rules of evidence, lodging objections,examining witnesses, filing written and oralmotions, and challenging the credibility andadmissibility of the state’s evidence. This dutyexists regardless of counsel’s opinion of the client’sguilt.Juvenile defense counsel explains the right totestify, helps the client identify and weigh theadvantages and disadvantages of testifying,and helps the client prepare if he decides totestify.Role of JuvenileDefenseCounsel inDelinquencyCourtE. Preparing for and Engaging in DispositionalAdvocacy: As part of the duty of competence anddiligence, juvenile defense counsel has an affirmativeduty to prepare for and engage in dispositionaladvocacy. Accordingly, at disposition, juveniledefense counsel offers the court strengths-baseddisposition alternatives that look beyond the optionsconsidered by the probation officer to address thechild’s expressed interests while being responsive tothe court’s concerns.1.Dispositional investigation and advocacy beginat the initiation of the attorney-client relationship.Regardless of counsel’s prognosis ofthe case outcome, counsel begins dispositionplanning and investigation at the earliest opportunityto maximize the chance that the appropriateinvestigation, evaluations and inter-Role of Juvenile Defense Counsel in Delinquency Court17


Role of JuvenileDefenseCounsel inDelinquencyCourt2.3.4.5.6.views are completed, and the necessary documentsare located and submitted, with the endresult that, should the client be found guilty,the client receives the most appropriate, leastrestrictive disposition with as little delay aspossible.Juvenile defense counsel investigates dispositionalternatives beyond those available toand considered by probation officers and juvenilecourt counselors, drawing on community-basedresources, according to the client’swishes.Counsel thoroughly engages the child in dispositionplanning by helping the child identifyand understand and weigh the availableoptions. Counsel informs the client about thenature of the presentence investigation processand the importance of statements the client andthe client’s family might make to probationofficers and youth court counselors. Counselalso advises the client about the right of allocutionat disposition, and helps the client prepareif the client chooses to allocute.As part of disposition preparation, juvenile defensecounsel consults with mitigation specialists,social workers, and mental health, specialeducation, and other experts to develop a planconsistent with the client’s expressed interests.At the disposition hearing, juvenile defensecounsel prepares and presents the court witha creative, comprehensive, strengths-based, individualizeddisposition alternative consistentwith the client’s expressed interests.As at the adjudicatory hearing, at the dispositionhearing, juvenile defense counsel protects18National Juvenile Defender Center


the client’s due process rights by challengingthe state’s evidence, including any hearsayand other inadmissible evidence that may beincluded in the presentence report, by crossexaminingthe state’s witnesses, including theprobation officer, and by proffering witnessesin support of the client’s own disposition plan,according to the client’s expressed interests.Role of JuvenileDefenseCounsel inDelinquencyCourtF. Conducting Post-Disposition Representation:Juvenile defense counsel has a duty to research andunderstand the legal rights to which the client is entitledand the legal options the client can access at thepost-disposition stage of the case and, after consultationwith the client, to pursue available options.1. Juvenile defense counsel files timely notices ofappeals, writs of habeas corpus, and other motionsthat challenge orders or outcomes thatcounsel believes are illegal or otherwise offendprinciples of fundamental fairness.2. At periodic intervals after disposition, juveniledefense counsel checks in with the client, withan eye towards averting any potential problemswith the client’s successful completionof disposition conditions, to maximize the client’schance at closing the case as quickly aspossible.3. In jurisdictions that hold regular post-dispositionreview hearings, juvenile defense counselparticipates in these proceedings. In jurisdictionsthat do not hold regular post-dispositionreview hearings, juvenile defense counsel encouragesperiodic post-disposition reviews byfiling motions to review that request hearingsor other forms of relief, unless counsel’s contractprohibits filing such a motion.Role of Juvenile Defense Counsel in Delinquency Court19


Role of JuvenileDefenseCounsel inDelinquencyCourt4. In preparation for probation and parole revocationhearings, juvenile defense counsel locateswitnesses, investigates allegations, challengesthe government’s evidence, prepares adefense and offers relevant mitigating factorsfor the court’s consideration.5. Defense counsel also keeps a record of any difficultieswith, or failings by probation officers,programs or other entities charged with providingservice to the client in order to militateagainst violations of probations. If the clientis detained, juvenile defense counsel helpsthe client to maintain contact with the client’sfamily and/or other positive community-ties,in accordance with the client’s wishes.6.7.Because juvenile defense counsel’s obligationis to the client, counsel can challenge conditionsof confinement, either individually or aspart of a larger strategy with other juvenile defensecounsel.Juvenile defense counsel helps the client expungejuvenile adjudications from the client’srecord, so that the client is better able to live asa productive, law-abiding citizen without thestigma of adjudication.G. Accessing Ancillary Services: Juvenile defense counselprovides to the client, either directly or indirectlythrough referrals, assistance in ancillary areas of lawthat intersect juvenile indigent defense, with the goalof affording the client holistic representation. Juveniledefense counsel does whatever counsel can reasonablyundertake to facilitate the relationship with theclient and the provider, and ensure the attainment ofthe client’s ultimate goal.20National Juvenile Defender Center


1.2.3.4.Juvenile defense counsel is familiar with specialeducation law and works to ensure that theclient is in an appropriate educational setting.Juvenile defense counsel ensures that the client’srights are protected at school disciplineor expulsion hearings.Juvenile defense counsel is available to assistthe client with intersecting, ancillary proceedingsthat may impact the client’s case, includinghousing and immigration matters, as wellas procedures for obtaining Medicaid or otherpublic benefits.Juvenile defense counsel who are prohibitedfrom or face limitations in providing these servicesdirectly develop a network of providersto whom these cases can be referred so thatancillary representation is holistic and responsiveto the client’s legal needs.Role of JuvenileDefenseCounsel inDelinquencyCourtAdditional sources:• Juvenile Justice Standards: 4.3 Investigation and Preparation; 4.1Prompt Action to Protect the Client; 7.2 Formality, In General;7.3 Discovery and Motion Practice; 7.8 Examination of Witnesses;7.9(a) Testimony by the Respondent; 9.1 Disposition,In General; 9.2 Disposition Investigation and Preparation; 9.3Counseling Prior to Disposition; 9.4 Disposition Hearing; 9.5Counseling after Disposition; 10.1 Relations with the Client afterDisposition; 10.2 Postdispositional Hearings before the JuvenileCourt; 10.3 Counsel on Appeal; 10.4 Conduct of the Appeal; 10.6Probation Revocation; Parole Revocation; 10.7 Challenges to theEffectiveness of Counsel• Criminal Justice Standards: 4-4.1 Duty to Investigate; 4-3.6Prompt Action to Protect the Accused; 4-1.2(a) The Function ofDefense Counsel, Commentary; 4-7.4 Opening Statement; 4-7.5Presentation of Evidence; 4-7.6 Examination of Witnesses; 4-7.7Argument to the Jury; 4-8.1 Sentencing; 4-7.9 Posttrial Motions;4-8.2 Appeal, 4-8.3 Counsel on AppealRole of Juvenile Defense Counsel in Delinquency Court21


Role of JuvenileDefenseCounsel inDelinquencyCourt4. Duty to Advise and CounselModel Rules: 2.1 AdvisorTo better enable the client to make a fully informed decisionabout the direction of the case, juvenile defense attorneys offerclients honest and comprehensive advice that considersthe client’s educational, familial, social, developmental, andother realities, in addition to the client’s legal situation.A. Pursuing Diversion Options: Consistent with the client’sexpressed interests, juvenile defense counsel negotiates,at every possible opportunity, for diversionand other means of case dismissal, regardless of counsel’sown opinion of guilt or innocence or the client’sneed for services. Counsel advises the client on theadvantages and disadvantages of each of these alternativesto adjudication, including the consequences ofnon-compliance with conditions of diversion.B. Ensuring Ethical Plea Agreements: Juvenile defensecounsel negotiates reasonable plea offers and ensuresthat clients make well-considered decisions concerningwhether to plead or go to trial.1.2.3.In negotiations with prosecutors, juvenile defensecounsel represents and advocates for theclient’s expressed interests.Juvenile defense counsel promptly relays pleaoffers, taking time to review the offer with theclient in detail and using age-appropriate language,advises the client on the full panoply ofrights relinquished by pleading, as well as therange of disposition options.Juvenile defense counsel seeks to ensure theclient has sufficient time to understand andweigh the offer.22National Juvenile Defender Center


4.Juvenile defense counsel’s advice as to whetherto accept the plea offer includes discussion of thelong-term collateral consequences of a juvenileadjudication or transfer to and conviction in adultcriminal court (e.g., in some jurisdictions, deportationif the client is undocumented, ineligibility forpublic housing, federal student loans, and militaryservice). This discussion should also include: thepossible dispositions and their impact on the client’slife; if the client is likely to get probation; andthe consequences of a probation violation.Role of JuvenileDefenseCounsel inDelinquencyCourtAdditional sources:• Juvenile Justice Standards: 6.3 Early Disposition; 7.1 Adjudicationwithout Trial• Criminal Justice Standards: 4-6.1 Duty to Explore DispositionWithout Trial; 4-6.2 Plea Discussions; 4-5.2 Control and Directionof the Case5. Duty of CommunicationModel Rules: 1.4 CommunicationsAt every stage of the case, a juvenile defense attorney keepsthe client informed of the case’s legal progression in frequentdiscussions using age-appropriate language, so that the clientis a fully informed and proactive participant at all stages ofthe proceedings.A. Communication in Court: For in-court proceedings,juvenile defense counsel previews for the client eachhearing before it happens, and reviews each hearingafter it happens, providing an opinion as to how thespecific hearing has affected the course of the overallcase, and allowing the client ample opportunity to askquestions and raise concerns.Role of Juvenile Defense Counsel in Delinquency Court23


Role of JuvenileDefenseCounsel inDelinquencyCourtB. Communication outside of Court: Juvenile defensecounsel keeps the client similarly informed about thecase’s progression outside of the courtroom by: solicitingand following up on the client’s investigatoryleads, sharing copies of and discussing motions filed,monitoring the client’s compliance with release conditions,or, if the client is detained, making sure that theclient is receiving adequate services, and being availableto assuage the client’s concerns as the case proceeds.C. Communication and Confidentiality: Counsel createsa safe, comfortable, and, to the extent possible,private environment, and allocates adequate time forcounseling; engages the youth with age-appropriatelanguage; earns the child’s trust over time; and offersbalanced and objective advice when appropriate.D. Communication with Detained Clients: If the client isdetained pending trial, juvenile defense counsel visitsthe client at the detention facility, and informs the client’sfamily how and when they can visit the client. Ifthe detention facility is too remote, counsel keeps inregular phone contact with the client.Additional sources:• Juvenile Justice Standards: 3.5 Duty to Keep Client Informed; 4.2Interviewing the Client; 5.1 Advising the Client Concerning theCase• Criminal Justice Standards: 4-3.1 Establishment of Relationship;4-3.8 Duty to Keep Client Informed; 4-5.1 Advising the Accused24National Juvenile Defender Center


Endnotes1 387 U.S. 1 (1967).Endnotes2 Gault, 387 U.S. at 19 n. 23 (internal quotations and citationomitted).3 Gault, 387 U.S. at 36.4 In re Gault, 387 U.S. 1, 36 (1967).5 In re Gault, 387 U.S. 1, 36 (1967).6 See Kent v.U.S., 383 U.S. 541 (1966) (holding that due processrequirements apply to transfer proceedings); In re Gault, 387U.S. 1 (1967) (holding that juveniles have right to notice ofcharges, right to counsel, privilege against self incrimination,and right to confrontation and cross-examination); In re Winship,397 U.S. 358 (1970) (holding that fundamental fairness requiresproof beyond a reasonable doubt in delinquency adjudications);Breed v. Jones, 421 U.S. 519 (1975)(rejecting the rigidcategorization of juvenile proceedings as civil, and extendingthe protection offered by the Double Jeopardy Clause, whichhad traditionally been applied to criminal proceedings, to juvenileproceedings).7 Pub. L. 93-415 (1974).Endnotes25


8 National Advisory Committee for Juvenile Justice and DelinquencyPrevention, Standards for the Administration of JuvenileJustice §3.132 Representation by Counsel – For the Juvenile(1980).9 For a description of the project, see IJA/ABA Juvenile JusticeStandards Annotated: A Balanced Approach xvi-xviii (Robert E.Shepherd, ed., 1996).Endnotes10 Kristin Henning, Loyalty, Paternalism, and Rights: Client CounselingTheory and the Role of Child’s Counsel in Delinquency Cases,81 Notre Dame L. Rev. 245, 255-56 (2005).11 Id.12 ABA Juvenile Justice Center, Juvenile Law Center & YouthLaw Center, A Call for Justice: An Assessment of Access to Counseland Quality of Representation in Delinquency Proceedings(1995), available at http://www.njdc.info/pdf/cfjfull/pdf.13 For purposes of this document, “stage” is broadly definedto include each step at which the state’s power intersects thechild’s life, including, but not limited to, arrest, interrogationat the police station, at school, or at home, initial detentionhearings, the probable cause hearing, and post-dispositionhearings.14 Under Model Rule 1.16(a)(1), Declining or Terminating Representation,if a lawyer cannot provide competent, prompt anddiligent representation, and continued representation will resultin violation of the rules of professional conduct, a lawyercan decline new cases or terminate representation. This rulegives important support to juvenile defense attorneys whoseunmanageable caseloads prohibit the individualized, zealousadvocacy to which juveniles are constitutionally entitled.26National Juvenile Defender Center


15 It should be noted that juvenile defense counsel is not theonly stakeholder ethically charged with safeguarding theclient’s pretrial due process rights. Model Rule 3.8, SpecialResponsibilities of a Prosecutor, requires prosecutors to: refrainfrom prosecuting a charge that the prosecutor knows is notsupported by probable cause; make reasonable efforts to assurethat the accused has been advised of the right to, and theprocedure for obtaining, counsel and has been given reasonableopportunity to obtain counsel; not seek to obtain froman unrepresented defendant a waiver of important pretrialrights, such as the right to a preliminary hearing; and maketimely disclosure to the defense of all mitigating or exculpatoryevidence.EndnotesEndnotes27


Endnotes28National Juvenile Defender Center


Appendix AABA Model Rules of Professional ConductPreamble and ScopePreamble: A Lawyer’s Responsibilities1. A lawyer, as a member of the legal profession, is a representativeof clients, an officer of the legal system and apublic citizen having special responsibility for the qualityof justice.Appendix A2. As a representative of clients, a lawyer performs variousfunctions. As advisor, a lawyer provides a client with aninformed understanding of the client’s legal rights andobligations and explains their practical implications. Asadvocate, a lawyer zealously asserts the client’s positionunder the rules of the adversary system. As negotiator, alawyer seeks a result advantageous to the client but consistentwith requirements of honest dealings with others.As an evaluator, a lawyer acts by examining a client’s legalaffairs and reporting about them to the client or to others.3. In addition to these representational functions, a lawyermay serve as a third-party neutral, a nonrepresentationalrole helping the parties to resolve a dispute or other matter.Some of these Rules apply directly to lawyers who areor have served as third-party neutrals. See, e.g., Rules 1.12Appendix A29


and 2.4. In addition, there are Rules that apply to lawyerswho are not active in the practice of law or to practicinglawyers even when they are acting in a nonprofessionalcapacity. For example, a lawyer who commits fraud in theconduct of a business is subject to discipline for engagingin conduct involving dishonesty, fraud, deceit or misrepresentation.See Rule 8.4.4. In all professional functions a lawyer should be competent,prompt and diligent. A lawyer should maintain communicationwith a client concerning the representation. Alawyer should keep in confidence information relating torepresentation of a client except so far as disclosure is requiredor permitted by the Rules of Professional Conductor other law.Appendix A5. A lawyer’s conduct should conform to the requirementsof the law, both in professional service to clients and in thelawyer’s business and personal affairs. A lawyer shoulduse the law’s procedures only for legitimate purposes andnot to harass or intimidate others. A lawyer should demonstraterespect for the legal system and for those whoserve it, including judges, other lawyers and public officials.While it is a lawyer’s duty, when necessary, to challengethe rectitude of official action, it is also a lawyer’sduty to uphold legal process.6. As a public citizen, a lawyer should seek improvementof the law, access to the legal system, the administrationof justice and the quality of service rendered by the legalprofession. As a member of a learned profession, a lawyershould cultivate knowledge of the law beyond its use forclients, employ that knowledge in reform of the law andwork to strengthen legal education. In addition, a lawyershould further the public’s understanding of and confidencein the rule of law and the justice system becauselegal institutions in a constitutional democracy depend onpopular participation and support to maintain their au-30National Juvenile Defender Center


thority. A lawyer should be mindful of deficiencies in theadministration of justice and of the fact that the poor, andsometimes persons who are not poor, cannot afford adequatelegal assistance. Therefore, all lawyers should devoteprofessional time and resources and use civic influenceto ensure equal access to our system of justice for allthose who because of economic or social barriers cannotafford or secure adequate legal counsel. A lawyer shouldaid the legal profession in pursuing these objectives andshould help the bar regulate itself in the public interest.7. Many of a lawyer’s professional responsibilities are prescribedin the Rules of Professional Conduct, as well assubstantive and procedural law. However, a lawyer isalso guided by personal conscience and the approbationof professional peers. A lawyer should strive to attain thehighest level of skill, to improve the law and the legal professionand to exemplify the legal profession’s ideals ofpublic service.8. A lawyer’s responsibilities as a representative of clients,an officer of the legal system and a public citizen are usuallyharmonious. Thus, when an opposing party is wellrepresented, a lawyer can be a zealous advocate on behalfof a client and at the same time assume that justice is beingdone. So also, a lawyer can be sure that preserving clientconfidences ordinarily serves the public interest becausepeople are more likely to seek legal advice, and therebyheed their legal obligations, when they know their communicationswill be private.Appendix A9. In the nature of law practice, however, conflicting responsibilitiesare encountered. Virtually all difficult ethicalproblems arise from conflict between a lawyer’s responsibilitiesto clients, to the legal system and to the lawyer’sown interest in remaining an ethical person while earninga satisfactory living. The Rules of Professional Conductoften prescribe terms for resolving such conflicts. WithinAppendix A31


the framework of these Rules, however, many difficult issuesof professional discretion can arise. Such issues mustbe resolved through the exercise of sensitive professionaland moral judgment guided by the basic principles underlyingthe Rules. These principles include the lawyer’sobligation zealously to protect and pursue a client’s legitimateinterests, within the bounds of the law, while maintaininga professional, courteous and civil attitude towardall persons involved in the legal system.10. The legal profession is largely self-governing. Althoughother professions also have been granted powers of selfgovernment,the legal profession is unique in this respectbecause of the close relationship between the professionand the processes of government and law enforcement.This connection is manifested in the fact that ultimate authorityover the legal profession is vested largely in thecourts.Appendix A11. To the extent that lawyers meet the obligations of theirprofessional calling, the occasion for government regulationis obviated. Self-regulation also helps maintain thelegal profession’s independence from government domination.An independent legal profession is an importantforce in preserving government under law, for abuse oflegal authority is more readily challenged by a professionwhose members are not dependent on government for theright to practice.12. The legal profession’s relative autonomy carries with itspecial responsibilities of self-government. The professionhas a responsibility to assure that its regulations are conceivedin the public interest and not in furtherance of parochialor self-interested concerns of the bar. Every lawyeris responsible for observance of the Rules of ProfessionalConduct. A lawyer should also aid in securing their observanceby other lawyers. Neglect of these responsibilities32National Juvenile Defender Center


compromises the independence of the profession and thepublic interest which it serves.13. Lawyers play a vital role in the preservation of society.The fulfillment of this role requires an understanding bylawyers of their relationship to our legal system. The Rulesof Professional Conduct, when properly applied, serve todefine that relationship.Scope14. The Rules of Professional Conduct are rules of reason.They should be interpreted with reference to the purposesof legal representation and of the law itself. Someof the Rules are imperatives, cast in the terms “shall” or“shall not.” These define proper conduct for purposes ofprofessional discipline. Others, generally cast in the term“may,” are permissive and define areas under the Rules inwhich the lawyer has discretion to exercise professionaljudgment. No disciplinary action should be taken whenthe lawyer chooses not to act or acts within the bounds ofsuch discretion. Other Rules define the nature of relationshipsbetween the lawyer and others. The Rules are thuspartly obligatory and disciplinary and partly constitutiveand descriptive in that they define a lawyer’s professionalrole. Many of the Comments use the term “should.” Commentsdo not add obligations to the Rules but provideguidance for practicing in compliance with the Rules.Appendix A15. The Rules presuppose a larger legal context shaping thelawyer’s role. That context includes court rules and statutesrelating to matters of licensure, laws defining specificobligations of lawyers and substantive and procedurallaw in general. The Comments are sometimes used to alertlawyers to their responsibilities under such other law.Appendix A33


16. Compliance with the Rules, as with all law in an open society,depends primarily upon understanding and voluntarycompliance, secondarily upon reinforcement by peerand public opinion and finally, when necessary, upon enforcementthrough disciplinary proceedings. The Rulesdo not, however, exhaust the moral and ethical considerationsthat should inform a lawyer, for no worthwhile humanactivity can be completely defined by legal rules. TheRules simply provide a framework for the ethical practiceof law.Appendix A17. Furthermore, for purposes of determining the lawyer’sauthority and responsibility, principles of substantive lawexternal to these Rules determine whether a client-lawyerrelationship exists. Most of the duties flowing from theclient-lawyer relationship attach only after the client hasrequested the lawyer to render legal services and the lawyerhas agreed to do so. But there are some duties, suchas that of confidentiality under Rule 1.6, that attach whenthe lawyer agrees to consider whether a client-lawyer relationshipshall be established. See Rule 1.18. Whether aclient-lawyer relationship exists for any specific purposecan depend on the circumstances and may be a questionof fact.18. Under various legal provisions, including constitutional,statutory and common law, the responsibilities of governmentlawyers may include authority concerning legalmatters that ordinarily reposes in the client in privateclient-lawyer relationships. For example, a lawyer for agovernment agency may have authority on behalf of thegovernment to decide upon settlement or whether to appealfrom an adverse judgment. Such authority in variousrespects is generally vested in the attorney general andthe state’s attorney in state government, and their federalcounterparts, and the same may be true of other governmentlaw officers. Also, lawyers under the supervisionof these officers may be authorized to represent several34National Juvenile Defender Center


government agencies in intragovernmental legal controversiesin circumstances where a private lawyer could notrepresent multiple private clients. These Rules do not abrogateany such authority.19. Failure to comply with an obligation or prohibition imposedby a Rule is a basis for invoking the disciplinaryprocess. The Rules presuppose that disciplinary assessmentof a lawyer’s conduct will be made on the basis ofthe facts and circumstances as they existed at the time ofthe conduct in question and in recognition of the fact thata lawyer often has to act upon uncertain or incompleteevidence of the situation. Moreover, the Rules presupposethat whether or not discipline should be imposed for aviolation, and the severity of a sanction, depend on all thecircumstances, such as the willfulness and seriousness ofthe violation, extenuating factors and whether there havebeen previous violations.20. Violation of a Rule should not itself give rise to a cause ofaction against a lawyer nor should it create any presumptionin such a case that a legal duty has been breached. Inaddition, violation of a Rule does not necessarily warrantany other nondisciplinary remedy, such as disqualificationof a lawyer in pending litigation. The Rules are designedto provide guidance to lawyers and to provide a structurefor regulating conduct through disciplinary agencies.They are not designed to be a basis for civil liability.Furthermore, the purpose of the Rules can be subvertedwhen they are invoked by opposing parties as proceduralweapons. The fact that a Rule is a just basis for a lawyer’sself-assessment, or for sanctioning a lawyer under the administrationof a disciplinary authority, does not implythat an antagonist in a collateral proceeding or transactionhas standing to seek enforcement of the Rule. Nevertheless,since the Rules do establish standards of conduct bylawyers, a lawyer’s violation of a Rule may be evidence ofbreach of the applicable standard of conduct.Appendix AAppendix A35


21. The Comment accompanying each Rule explains and illustratesthe meaning and purpose of the Rule. The Preambleand this note on Scope provide general orientation.The Comments are intended as guides to interpretation,but the text of each Rule is authoritative.ABA Model Rules of Professional ConductClient-Lawyer RelationshipRule 1.1 CompetenceA lawyer shall provide competent representation to a client.Competent representation requires the legal knowledge, skill,thoroughness and preparation reasonably necessary for therepresentation.Appendix AClient-Lawyer RelationshipRule 1.1 Competence – CommentLegal Knowledge and Skill1. In determining whether a lawyer employs the requisiteknowledge and skill in a particular matter, relevant factorsinclude the relative complexity and specialized nature ofthe matter, the lawyer’s general experience, the lawyer’straining and experience in the field in question, the preparationand study the lawyer is able to give the matterand whether it is feasible to refer the matter to, or associateor consult with, a lawyer of established competencein the field in question. In many instances, the requiredproficiency is that of a general practitioner. Expertise ina particular field of law may be required in some circumstances.36National Juvenile Defender Center


2. A lawyer need not necessarily have special training orprior experience to handle legal problems of a type withwhich the lawyer is unfamiliar. A newly admitted lawyercan be as competent as a practitioner with long experience.Some important legal skills, such as the analysis ofprecedent, the evaluation of evidence and legal drafting,are required in all legal problems. Perhaps the most fundamentallegal skill consists of determining what kind oflegal problems a situation may involve, a skill that necessarilytranscends any particular specialized knowledge. Alawyer can provide adequate representation in a whollynovel field through necessary study. Competent representationcan also be provided through the association of alawyer of established competence in the field in question.3. In an emergency a lawyer may give advice or assistancein a matter in which the lawyer does not have the skillordinarily required where referral to or consultation or associationwith another lawyer would be impractical. Evenin an emergency, however, assistance should be limitedto that reasonably necessary in the circumstances, for illconsideredaction under emergency conditions can jeopardizethe client’s interest.Appendix A4. A lawyer may accept representation where the requisitelevel of competence can be achieved by reasonable preparation.This applies as well to a lawyer who is appointedas counsel for an unrepresented person. See also Rule 6.2.Thoroughness and Preparation5. Competent handling of a particular matter includes inquiryinto and analysis of the factual and legal elements of theproblem, and use of methods and procedures meeting thestandards of competent practitioners. It also includes adequatepreparation. The required attention and preparationare determined in part by what is at stake; major litigationAppendix A37


and complex transactions ordinarily require more extensivetreatment than matters of lesser complexity and consequence.An agreement between the lawyer and the clientregarding the scope of the representation may limit the mattersfor which the lawyer is responsible. See Rule 1.2(c).Maintaining Competence6. To maintain the requisite knowledge and skill, a lawyershould keep abreast of changes in the law and its practice,engage in continuing study and education and complywith all continuing legal education requirements to whichthe lawyer is subject.Client-Lawyer RelationshipRule 1.2 Scope Of Representation And Allocation Of AuthorityBetween Client And LawyerAppendix A(a) Subject to paragraphs (c) and (d), a lawyer shall abide bya client’s decisions concerning the objectives of representationand, as required by Rule 1.4, shall consult with theclient as to the means by which they are to be pursued.A lawyer may take such action on behalf of the client asis impliedly authorized to carry out the representation. Alawyer shall abide by a client’s decision whether to settlea matter. In a criminal case, the lawyer shall abide by theclient’s decision, after consultation with the lawyer, as to aplea to be entered, whether to waive jury trial and whetherthe client will testify.38National Juvenile Defender Center


Client-Lawyer RelationshipRule 1.2 Scope Of Representation And Allocation Of AuthorityBetween Client And Lawyer – CommentAllocation of Authority between Client and Lawyer1. Paragraph (a) confers upon the client the ultimate authorityto determine the purposes to be served by legalrepresentation, within the limits imposed by law and thelawyer’s professional obligations. The decisions specifiedin paragraph (a), such as whether to settle a civil matter,must also be made by the client. See Rule 1.4(a)(1) for thelawyer’s duty to communicate with the client about suchdecisions. With respect to the means by which the client’sobjectives are to be pursued, the lawyer shall consult withthe client as required by Rule 1.4(a)(2) and may take suchaction as is impliedly authorized to carry out the representation.2. On occasion, however, a lawyer and a client may disagreeabout the means to be used to accomplish the client’s objectives.Clients normally defer to the special knowledge andskill of their lawyer with respect to the means to be usedto accomplish their objectives, particularly with respect totechnical, legal and tactical matters. Conversely, lawyersusually defer to the client regarding such questions as theexpense to be incurred and concern for third persons whomight be adversely affected. Because of the varied natureof the matters about which a lawyer and client might disagreeand because the actions in question may implicatethe interests of a tribunal or other persons, this Rule doesnot prescribe how such disagreements are to be resolved.Other law, however, may be applicable and should be consultedby the lawyer. The lawyer should also consult withthe client and seek a mutually acceptable resolution of thedisagreement. If such efforts are unavailing and the lawyerhas a fundamental disagreement with the client, thelawyer may withdraw from the representation. See RuleAppendix AAppendix A39


1.16(b)(4). Conversely, the client may resolve the disagreementby discharging the lawyer. See Rule 1.16(a)(3).3. At the outset of a representation, the client may authorizethe lawyer to take specific action on the client’s behalfwithout further consultation. Absent a material change incircumstances and subject to Rule 1.4, a lawyer may relyon such an advance authorization. The client may, however,revoke such authority at any time.4. In a case in which the client appears to be suffering diminishedcapacity, the lawyer’s duty to abide by the client’sdecisions is to be guided by reference to Rule 1.14.Independence from Client’s Views or ActivitiesAppendix A5. Legal representation should not be denied to people whoare unable to afford legal services, or whose cause is controversialor the subject of popular disapproval. By thesame token, representing a client does not constitute approvalof the client’s views or activities.Agreements Limiting Scope of Representation6. The scope of services to be provided by a lawyer may belimited by agreement with the client or by the terms underwhich the lawyer’s services are made available to theclient. When a lawyer has been retained by an insurer torepresent an insured, for example, the representation maybe limited to matters related to the insurance coverage. Alimited representation may be appropriate because the clienthas limited objectives for the representation. In addition,the terms upon which representation is undertakenmay exclude specific means that might otherwise be usedto accomplish the client’s objectives. Such limitations mayexclude actions that the client thinks are too costly or thatthe lawyer regards as repugnant or imprudent.40National Juvenile Defender Center


7. Although this Rule affords the lawyer and client substantiallatitude to limit the representation, the limitation mustbe reasonable under the circumstances. If, for example, aclient’s objective is limited to securing general informationabout the law the client needs in order to handle acommon and typically uncomplicated legal problem, thelawyer and client may agree that the lawyer’s services willbe limited to a brief telephone consultation. Such a limitation,however, would not be reasonable if the time allottedwas not sufficient to yield advice upon which the clientcould rely. Although an agreement for a limited representationdoes not exempt a lawyer from the duty to providecompetent representation, the limitation is a factor to beconsidered when determining the legal knowledge, skill,thoroughness and preparation reasonably necessary forthe representation. See Rule 1.1.8. All agreements concerning a lawyer’s representation of aclient must accord with the Rules of Professional Conductand other law. See, e.g., Rules 1.1, 1.8 and 5.6.Appendix ACriminal, Fraudulent and Prohibited Transactions9. Paragraph (d) prohibits a lawyer from knowingly counselingor assisting a client to commit a crime or fraud. Thisprohibition, however, does not preclude the lawyer fromgiving an honest opinion about the actual consequencesthat appear likely to result from a client’s conduct. Nordoes the fact that a client uses advice in a course of actionthat is criminal or fraudulent of itself make a lawyer aparty to the course of action. There is a critical distinctionbetween presenting an analysis of legal aspects of questionableconduct and recommending the means by whicha crime or fraud might be committed with impunity.10. When the client’s course of action has already begun andis continuing, the lawyer’s responsibility is especially del-Appendix A41


icate. The lawyer is required to avoid assisting the client,for example, by drafting or delivering documents that thelawyer knows are fraudulent or by suggesting how thewrongdoing might be concealed. A lawyer may not continueassisting a client in conduct that the lawyer originallysupposed was legally proper but then discovers iscriminal or fraudulent. The lawyer must, therefore, withdrawfrom the representation of the client in the matter.See Rule 1.16(a). In some cases, withdrawal alone mightbe insufficient. It may be necessary for the lawyer to givenotice of the fact of withdrawal and to disaffirm any opinion,document, affirmation or the like. See Rule 4.1.11. Where the client is a fiduciary, the lawyer may be chargedwith special obligations in dealings with a beneficiary.Appendix A12. Paragraph (d) applies whether or not the defrauded partyis a party to the transaction. Hence, a lawyer must not participatein a transaction to effectuate criminal or fraudulentavoidance of tax liability. Paragraph (d) does not precludeundertaking a criminal defense incident to a generalretainer for legal services to a lawful enterprise. The lastclause of paragraph (d) recognizes that determining thevalidity or interpretation of a statute or regulation mayrequire a course of action involving disobedience of thestatute or regulation or of the interpretation placed uponit by governmental authorities.13. If a lawyer comes to know or reasonably should knowthat a client expects assistance not permitted by the Rulesof Professional Conduct or other law or if the lawyer intendsto act contrary to the client’s instructions, the lawyermust consult with the client regarding the limitationson the lawyer’s conduct. See Rule 1.4(a)(5).42National Juvenile Defender Center


Client-Lawyer RelationshipRule 1.3 DiligenceA lawyer shall act with reasonable diligence and promptnessin representing a client.Client-Lawyer RelationshipRule 1.3 Diligence – Comment1. A lawyer should pursue a matter on behalf of a client despiteopposition, obstruction or personal inconvenienceto the lawyer, and take whatever lawful and ethical measuresare required to vindicate a client’s cause or endeavor.A lawyer must also act with commitment and dedicationto the interests of the client and with zeal in advocacyupon the client’s behalf. A lawyer is not bound, however,to press for every advantage that might be realized for aclient. For example, a lawyer may have authority to exerciseprofessional discretion in determining the meansby which a matter should be pursued. See Rule 1.2. Thelawyer’s duty to act with reasonable diligence does notrequire the use of offensive tactics or preclude the treatingof all persons involved in the legal process with courtesyand respect.Appendix A2. A lawyer’s work load must be controlled so that each mattercan be handled competently.3. Perhaps no professional shortcoming is more widely resentedthan procrastination. A client’s interests often canbe adversely affected by the passage of time or the changeof conditions; in extreme instances, as when a lawyeroverlooks a statute of limitations, the client’s legal positionmay be destroyed. Even when the client’s interestsare not affected in substance, however, unreasonable delaycan cause a client needless anxiety and undermineconfidence in the lawyer’s trustworthiness. A lawyer’sduty to act with reasonable promptness, however, doesAppendix A43


not preclude the lawyer from agreeing to a reasonable requestfor a postponement that will not prejudice the lawyer’sclient.Appendix A4. Unless the relationship is terminated as provided in Rule1.16, a lawyer should carry through to conclusion all mattersundertaken for a client. If a lawyer’s employment islimited to a specific matter, the relationship terminateswhen the matter has been resolved. If a lawyer has serveda client over a substantial period in a variety of matters,the client sometimes may assume that the lawyer will continueto serve on a continuing basis unless the lawyer givesnotice of withdrawal. Doubt about whether a client-lawyerrelationship still exists should be clarified by the lawyer,preferably in writing, so that the client will not mistakenlysuppose the lawyer is looking after the client’s affairs whenthe lawyer has ceased to do so. For example, if a lawyerhas handled a judicial or administrative proceeding thatproduced a result adverse to the client and the lawyer andthe client have not agreed that the lawyer will handle thematter on appeal, the lawyer must consult with the clientabout the possibility of appeal before relinquishing responsibilityfor the matter. See Rule 1.4(a)(2). Whether thelawyer is obligated to prosecute the appeal for the clientdepends on the scope of the representation the lawyer hasagreed to provide to the client. See Rule 1.2.5. To prevent neglect of client matters in the event of a solepractitioner’s death or disability, the duty of diligencemay require that each sole practitioner prepare a plan, inconformity with applicable rules, that designates anothercompetent lawyer to review client files, notify each clientof the lawyer’s death or disability, and determine whetherthere is a need for immediate protective action. Cf. Rule 28of the American Bar Association Model Rules for LawyerDisciplinary Enforcement (providing for court appointmentof a lawyer to inventory files and take other protectiveaction in absence of a plan providing for another44National Juvenile Defender Center


lawyer to protect the interests of the clients of a deceasedor disabled lawyer).Client-Lawyer RelationshipRule 1.4 Communication(a) A lawyer shall:(1) promptly inform the client of any decision or circumstancewith respect to which the client’s informedconsent, as defined in Rule 1.0(e), is required by theseRules;(2) reasonably consult with the client about the means bywhich the client’s objectives are to be accomplished;(3) keep the client reasonably informed about the statusof the matter;(4) promptly comply with reasonable requests for information;and(5) consult with the client about any relevant limitation onthe lawyer’s conduct when the lawyer knows that theclient expects assistance not permitted by the Rules ofProfessional Conduct or other law.Appendix A(b) A lawyer shall explain a matter to the extent reasonablynecessary to permit the client to make informed decisionsregarding the representation.Client-Lawyer RelationshipRule 1.4 Communication – Comment1. Reasonable communication between the lawyer and theclient is necessary for the client effectively to participatein the representation.Appendix A45


Communicating with Client2. If these Rules require that a particular decision about therepresentation be made by the client, paragraph (a)(1) requiresthat the lawyer promptly consult with and securethe client’s consent prior to taking action unless prior discussionswith the client have resolved what action the clientwants the lawyer to take. For example, a lawyer whoreceives from opposing counsel an offer of settlement in acivil controversy or a proffered plea bargain in a criminalcase must promptly inform the client of its substance unlessthe client has previously indicated that the proposalwill be acceptable or unacceptable or has authorized thelawyer to accept or to reject the offer. See Rule 1.2(a).Appendix A3. Paragraph (a)(2) requires the lawyer to reasonably consultwith the client about the means to be used to accomplishthe client’s objectives. In some situations — depending onboth the importance of the action under consideration andthe feasibility of consulting with the client — this dutywill require consultation prior to taking action. In othercircumstances, such as during a trial when an immediatedecision must be made, the exigency of the situation mayrequire the lawyer to act without prior consultation. Insuch cases the lawyer must nonetheless act reasonably toinform the client of actions the lawyer has taken on the client’sbehalf. Additionally, paragraph (a)(3) requires thatthe lawyer keep the client reasonably informed about thestatus of the matter, such as significant developments affectingthe timing or the substance of the representation.4. A lawyer’s regular communication with clients will minimizethe occasions on which a client will need to requestinformation concerning the representation. When a clientmakes a reasonable request for information, however,paragraph (a)(4) requires prompt compliance withthe request, or if a prompt response is not feasible, thatthe lawyer, or a member of the lawyer’s staff, acknowl-46National Juvenile Defender Center


edge receipt of the request and advise the client when aresponse may be expected. Client telephone calls shouldbe promptly returned or acknowledged.Explaining Matters5. The client should have sufficient information to participateintelligently in decisions concerning the objectives ofthe representation and the means by which they are to bepursued, to the extent the client is willing and able to doso. Adequacy of communication depends in part on thekind of advice or assistance that is involved. For example,when there is time to explain a proposal made in a negotiation,the lawyer should review all important provisionswith the client before proceeding to an agreement. In litigationa lawyer should explain the general strategy andprospects of success and ordinarily should consult the clienton tactics that are likely to result in significant expenseor to injure or coerce others. On the other hand, a lawyerordinarily will not be expected to describe trial or negotiationstrategy in detail. The guiding principle is that thelawyer should fulfill reasonable client expectations for informationconsistent with the duty to act in the client’sbest interests, and the client’s overall requirements as tothe character of representation. In certain circumstances,such as when a lawyer asks a client to consent to a representationaffected by a conflict of interest, the client mustgive informed consent, as defined in Rule 1.0(e).Appendix A6. Ordinarily, the information to be provided is that appropriatefor a client who is a comprehending and responsibleadult. However, fully informing the client accordingto this standard may be impracticable, for example, wherethe client is a child or suffers from diminished capacity.See Rule 1.14. When the client is an organization or group,it is often impossible or inappropriate to inform every oneof its members about its legal affairs; ordinarily, the law-Appendix A47


yer should address communications to the appropriateofficials of the organization. See Rule 1.13. Where manyroutine matters are involved, a system of limited or occasionalreporting may be arranged with the client.Withholding Information7. In some circumstances, a lawyer may be justified in delayingtransmission of information when the client would belikely to react imprudently to an immediate communication.Thus, a lawyer might withhold a psychiatric diagnosisof a client when the examining psychiatrist indicatesthat disclosure would harm the client. A lawyer may notwithhold information to serve the lawyer’s own interestor convenience or the interests or convenience of anotherperson. Rules or court orders governing litigation mayprovide that information supplied to a lawyer may not bedisclosed to the client. Rule 3.4(c) directs compliance withsuch rules or orders.Appendix AClient-Lawyer RelationshipRule 1.6 Confidentiality of Information(a) A lawyer shall not reveal information relating to the representationof a client unless the client gives informedconsent, the disclosure is impliedly authorized in order tocarry out the representation or the disclosure is permittedby paragraph (b).(b) A lawyer may reveal information relating to the representationof a client to the extent the lawyer reasonably believesnecessary:(1) to prevent reasonably certain death or substantialbodily harm;(2) to prevent the client from committing a crime or fraudthat is reasonably certain to result in substantial injury48National Juvenile Defender Center


to the financial interests or property of another and infurtherance of which the client has used or is using thelawyer’s services;(3) to prevent, mitigate or rectify substantial injury to thefinancial interests or property of another that is reasonablycertain to result or has resulted from the client’scommission of a crime or fraud in furtherance ofwhich the client has used the lawyer’s services;(4) to secure legal advice about the lawyer’s compliancewith these Rules;(5) to establish a claim or defense on behalf of the lawyerin a controversy between the lawyer and the client, toestablish a defense to a criminal charge or civil claimagainst the lawyer based upon conduct in which theclient was involved, or to respond to allegations in anyproceeding concerning the lawyer’s representation ofthe client; or(6) to comply with other law or a court order.Client-Lawyer RelationshipRule 1.6 Confidentiality of Information – CommentAppendix A1. This Rule governs the disclosure by a lawyer of informationrelating to the representation of a client during thelawyer’s representation of the client. See Rule 1.18 for thelawyer’s duties with respect to information provided tothe lawyer by a prospective client, Rule 1.9(c)(2) for thelawyer’s duty not to reveal information relating to thelawyer’s prior representation of a former client and Rules1.8(b) and 1.9(c)(1) for the lawyer’s duties with respect tothe use of such information to the disadvantage of clientsand former clients.2. A fundamental principle in the client-lawyer relationshipis that, in the absence of the client’s informed consent, thelawyer must not reveal information relating to the representation.See Rule 1.0(e) for the definition of informedconsent. This contributes to the trust that is the hallmarkAppendix A49


of the client-lawyer relationship. The client is thereby encouragedto seek legal assistance and to communicatefully and frankly with the lawyer even as to embarrassingor legally damaging subject matter. The lawyer needsthis information to represent the client effectively and, ifnecessary, to advise the client to refrain from wrongfulconduct. Almost without exception, clients come to lawyersin order to determine their rights and what is, in thecomplex of laws and regulations, deemed to be legal andcorrect. Based upon experience, lawyers know that almostall clients follow the advice given, and the law is upheld.Appendix A3. The principle of client-lawyer confidentiality is given effectby related bodies of law: the attorney-client privilege,the work product doctrine and the rule of confidentialityestablished in professional ethics. The attorney-clientprivilege and work-product doctrine apply in judicial andother proceedings in which a lawyer may be called as awitness or otherwise required to produce evidence concerninga client. The rule of client-lawyer confidentialityapplies in situations other than those where evidence issought from the lawyer through compulsion of law. Theconfidentiality rule, for example, applies not only to matterscommunicated in confidence by the client but also toall information relating to the representation, whatever itssource. A lawyer may not disclose such information exceptas authorized or required by the Rules of ProfessionalConduct or other law. See also Scope.4. Paragraph (a) prohibits a lawyer from revealing informationrelating to the representation of a client. This prohibition alsoapplies to disclosures by a lawyer that do not in themselvesreveal protected information but could reasonably lead tothe discovery of such information by a third person. A lawyer’suse of a hypothetical to discuss issues relating to therepresentation is permissible so long as there is no reasonablelikelihood that the listener will be able to ascertain theidentity of the client or the situation involved.50National Juvenile Defender Center


Authorized Disclosure5. Except to the extent that the client’s instructions or specialcircumstances limit that authority, a lawyer is impliedlyauthorized to make disclosures about a client when appropriatein carrying out the representation. In some situations,for example, a lawyer may be impliedly authorizedto admit a fact that cannot properly be disputed or tomake a disclosure that facilitates a satisfactory conclusionto a matter. Lawyers in a firm may, in the course of thefirm’s practice, disclose to each other information relatingto a client of the firm, unless the client has instructed thatparticular information be confined to specified lawyers.Disclosure Adverse to Client6. Although the public interest is usually best served by astrict rule requiring lawyers to preserve the confidentialityof information relating to the representation of theirclients, the confidentiality rule is subject to limited exceptions.Paragraph (b)(1) recognizes the overriding value oflife and physical integrity and permits disclosure reasonablynecessary to prevent reasonably certain death or substantialbodily harm. Such harm is reasonably certain to occurif it will be suffered imminently or if there is a presentand substantial threat that a person will suffer such harmat a later date if the lawyer fails to take action necessary toeliminate the threat. Thus, a lawyer who knows that a clienthas accidentally discharged toxic waste into a town’swater supply may reveal this information to the authoritiesif there is a present and substantial risk that a personwho drinks the water will contract a life-threatening or debilitatingdisease and the lawyer’s disclosure is necessaryto eliminate the threat or reduce the number of victims.Appendix A7. Paragraph (b)(2) is a limited exception to the rule of confidentialitythat permits the lawyer to reveal informationAppendix A51


to the extent necessary to enable affected persons or appropriateauthorities to prevent the client from committinga crime or fraud, as defined in Rule 1.0(d), that is reasonablycertain to result in substantial injury to the financial orproperty interests of another and in furtherance of whichthe client has used or is using the lawyer’s services. Such aserious abuse of the client-lawyer relationship by the clientforfeits the protection of this Rule. The client can, of course,prevent such disclosure by refraining from the wrongfulconduct. Although paragraph (b)(2) does not requirethe lawyer to reveal the client’s misconduct, the lawyermay not counsel or assist the client in conduct the lawyerknows is criminal or fraudulent. See Rule 1.2(d). See alsoRule 1.16 with respect to the lawyer’s obligation or rightto withdraw from the representation of the client in suchcircumstances, and Rule 1.13(c), which permits the lawyer,where the client is an organization, to reveal informationrelating to the representation in limited circumstances.Appendix A8. Paragraph (b)(3) addresses the situation in which the lawyerdoes not learn of the client’s crime or fraud until afterit has been consummated. Although the client no longerhas the option of preventing disclosure by refraining fromthe wrongful conduct, there will be situations in whichthe loss suffered by the affected person can be prevented,rectified or mitigated. In such situations, the lawyer maydisclose information relating to the representation to theextent necessary to enable the affected persons to preventor mitigate reasonably certain losses or to attempt to recouptheir losses. Paragraph (b)(3) does not apply when aperson who has committed a crime or fraud thereafter employsa lawyer for representation concerning that offense.9. A lawyer’s confidentiality obligations do not preclude alawyer from securing confidential legal advice about thelawyer’s personal responsibility to comply with theseRules. In most situations, disclosing information to securesuch advice will be impliedly authorized for the lawyer to52National Juvenile Defender Center


carry out the representation. Even when the disclosure isnot impliedly authorized, paragraph (b)(4) permits suchdisclosure because of the importance of a lawyer’s compliancewith the Rules of Professional Conduct.10. Where a legal claim or disciplinary charge alleges complicityof the lawyer in a client’s conduct or other misconductof the lawyer involving representation of the client,the lawyer may respond to the extent the lawyer reasonablybelieves necessary to establish a defense. The same istrue with respect to a claim involving the conduct or representationof a former client. Such a charge can arise ina civil, criminal, disciplinary or other proceeding and canbe based on a wrong allegedly committed by the lawyeragainst the client or on a wrong alleged by a third person,for example, a person claiming to have been defrauded bythe lawyer and client acting together. The lawyer’s right torespond arises when an assertion of such complicity hasbeen made. Paragraph (b)(5) does not require the lawyerto await the commencement of an action or proceedingthat charges such complicity, so that the defense may beestablished by responding directly to a third party who hasmade such an assertion. The right to defend also applies,of course, where a proceeding has been commenced.Appendix A11. A lawyer entitled to a fee is permitted by paragraph (b)(5) to prove the services rendered in an action to collectit. This aspect of the rule expresses the principle that thebeneficiary of a fiduciary relationship may not exploit it tothe detriment of the fiduciary.12. Other law may require that a lawyer disclose informationabout a client. Whether such a law supersedes Rule 1.6 isa question of law beyond the scope of these Rules. Whendisclosure of information relating to the representationappears to be required by other law, the lawyer must discussthe matter with the client to the extent required byRule 1.4. If, however, the other law supersedes this RuleAppendix A53


and requires disclosure, paragraph (b)(6) permits the lawyerto make such disclosures as are necessary to complywith the law.13. A lawyer may be ordered to reveal information relatingto the representation of a client by a court or by anothertribunal or governmental entity claiming authority pursuantto other law to compel the disclosure. Absent informedconsent of the client to do otherwise, the lawyer shouldassert on behalf of the client all nonfrivolous claims thatthe order is not authorized by other law or that the informationsought is protected against disclosure by the attorney-clientprivilege or other applicable law. In the event ofan adverse ruling, the lawyer must consult with the clientabout the possibility of appeal to the extent required byRule 1.4. Unless review is sought, however, paragraph (b)(6) permits the lawyer to comply with the court’s order.Appendix A14. Paragraph (b) permits disclosure only to the extent thelawyer reasonably believes the disclosure is necessary toaccomplish one of the purposes specified. Where practicable,the lawyer should first seek to persuade the clientto take suitable action to obviate the need for disclosure.In any case, a disclosure adverse to the client’s interestshould be no greater than the lawyer reasonably believesnecessary to accomplish the purpose. If the disclosure willbe made in connection with a judicial proceeding, the disclosureshould be made in a manner that limits access tothe information to the tribunal or other persons havinga need to know it and appropriate protective orders orother arrangements should be sought by the lawyer to thefullest extent practicable.15. Paragraph (b) permits but does not require the disclosureof information relating to a client’s representationto accomplish the purposes specified in paragraphs (b)(1) through (b)(6). In exercising the discretion conferredby this Rule, the lawyer may consider such factors as the54National Juvenile Defender Center


nature of the lawyer’s relationship with the client andwith those who might be injured by the client, the lawyer’sown involvement in the transaction and factors thatmay extenuate the conduct in question. A lawyer’s decisionnot to disclose as permitted by paragraph (b) doesnot violate this Rule. Disclosure may be required, however,by other Rules. Some Rules require disclosure onlyif such disclosure would be permitted by paragraph (b).See Rules 1.2(d), 4.1(b), 8.1 and 8.3. Rule 3.3, on the otherhand, requires disclosure in some circumstances regardlessof whether such disclosure is permitted by this Rule.See Rule 3.3(c).Acting Competently to Preserve Confidentiality16. A lawyer must act competently to safeguard informationrelating to the representation of a client against inadvertentor unauthorized disclosure by the lawyer or otherpersons who are participating in the representation of theclient or who are subject to the lawyer’s supervision. SeeRules 1.1, 5.1 and 5.3.Appendix A17. When transmitting a communication that includes informationrelating to the representation of a client, the lawyermust take reasonable precautions to prevent the informationfrom coming into the hands of unintended recipients.This duty, however, does not require that the lawyer usespecial security measures if the method of communicationaffords a reasonable expectation of privacy. Special circumstances,however, may warrant special precautions.Factors to be considered in determining the reasonablenessof the lawyer’s expectation of confidentiality includethe sensitivity of the information and the extent to whichthe privacy of the communication is protected by law orby a confidentiality agreement. A client may require thelawyer to implement special security measures not requiredby this Rule or may give informed consent to theAppendix A55


use of a means of communication that would otherwise beprohibited by this Rule.Former Client18. The duty of confidentiality continues after the client-lawyerrelationship has terminated. See Rule 1.9(c)(2). SeeRule 1.9(c)(1) for the prohibition against using such informationto the disadvantage of the former client.Client-Lawyer RelationshipRule 1.14 Client with Diminished CapacityAppendix A(a) When a client’s capacity to make adequately considereddecisions in connection with a representation is diminished,whether because of minority, mental impairmentor for some other reason, the lawyer shall, as far as reasonablypossible, maintain a normal client-lawyer relationshipwith the client.Client-Lawyer RelationshipRule 1.14 Client with Diminished Capacity – Comment1. The normal client-lawyer relationship is based on the assumptionthat the client, when properly advised and assisted,is capable of making decisions about importantmatters. When the client is a minor or suffers from a diminishedmental capacity, however, maintaining the ordinaryclient-lawyer relationship may not be possible inall respects. In particular, a severely incapacitated personmay have no power to make legally binding decisions.Nevertheless, a client with diminished capacity oftenhas the ability to understand, deliberate upon, and reachconclusions about matters affecting the client’s own wellbeing.For example, children as young as five or six years56National Juvenile Defender Center


of age, and certainly those of ten or twelve, are regardedas having opinions that are entitled to weight in legal proceedingsconcerning their custody. So also, it is recognizedthat some persons of advanced age can be quite capable ofhandling routine financial matters while needing speciallegal protection concerning major transactions.2. The fact that a client suffers a disability does not diminishthe lawyer’s obligation to treat the client with attentionand respect. Even if the person has a legal representative,the lawyer should as far as possible accord the representedperson the status of client, particularly in maintainingcommunication.3. The client may wish to have family members or otherpersons participate in discussions with the lawyer. Whennecessary to assist in the representation, the presence ofsuch persons generally does not affect the applicabilityof the attorney-client evidentiary privilege. Nevertheless,the lawyer must keep the client’s interests foremost and,except for protective action authorized under paragraph(b), must to look to the client, and not family members, tomake decisions on the client’s behalf.Appendix A4. If a legal representative has already been appointed forthe client, the lawyer should ordinarily look to the representativefor decisions on behalf of the client. In mattersinvolving a minor, whether the lawyer should look to theparents as natural guardians may depend on the type ofproceeding or matter in which the lawyer is representingthe minor. If the lawyer represents the guardian as distinctfrom the ward, and is aware that the guardian is actingadversely to the ward’s interest, the lawyer may have anobligation to prevent or rectify the guardian’s misconduct.See Rule 1.2(d).Appendix A57


Taking Protective ActionAppendix A5. If a lawyer reasonably believes that a client is at risk ofsubstantial physical, financial or other harm unless actionis taken, and that a normal client-lawyer relationship cannotbe maintained as provided in paragraph (a) becausethe client lacks sufficient capacity to communicate or tomake adequately considered decisions in connection withthe representation, then paragraph (b) permits the lawyerto take protective measures deemed necessary. Such measurescould include: consulting with family members, usinga reconsideration period to permit clarification or improvementof circumstances, using voluntary surrogatedecisionmaking tools such as durable powers of attorneyor consulting with support groups, professional services,adult-protective agencies or other individuals or entitiesthat have the ability to protect the client. In taking anyprotective action, the lawyer should be guided by suchfactors as the wishes and values of the client to the extentknown, the client’s best interests and the goals of intrudinginto the client’s decisionmaking autonomy to the leastextent feasible, maximizing client capacities and respectingthe client’s family and social connections.6. In determining the extent of the client’s diminished capacity,the lawyer should consider and balance such factorsas: the client’s ability to articulate reasoning leading to adecision, variability of state of mind and ability to appreciateconsequences of a decision; the substantive fairnessof a decision; and the consistency of a decision with theknown long-term commitments and values of the client.In appropriate circumstances, the lawyer may seek guidancefrom an appropriate diagnostician.7. If a legal representative has not been appointed, the lawyershould consider whether appointment of a guardianad litem, conservator or guardian is necessary to protect58National Juvenile Defender Center


the client’s interests. Thus, if a client with diminished capacityhas substantial property that should be sold forthe client’s benefit, effective completion of the transactionmay require appointment of a legal representative. In addition,rules of procedure in litigation sometimes providethat minors or persons with diminished capacity must berepresented by a guardian or next friend if they do nothave a general guardian. In many circumstances, however,appointment of a legal representative may be moreexpensive or traumatic for the client than circumstancesin fact require. Evaluation of such circumstances is a matterentrusted to the professional judgment of the lawyer.In considering alternatives, however, the lawyer shouldbe aware of any law that requires the lawyer to advocatethe least restrictive action on behalf of the client.Disclosure of the Client’s Condition8. Disclosure of the client’s diminished capacity could adverselyaffect the client’s interests. For example, raising thequestion of diminished capacity could, in some circumstances,lead to proceedings for involuntary commitment.Information relating to the representation is protected byRule 1.6. Therefore, unless authorized to do so, the lawyermay not disclose such information. When taking protectiveaction pursuant to paragraph (b), the lawyer is impliedlyauthorized to make the necessary disclosures, even whenthe client directs the lawyer to the contrary. Nevertheless,given the risks of disclosure, paragraph (c) limits what thelawyer may disclose in consulting with other individualsor entities or seeking the appointment of a legal representative.At the very least, the lawyer should determinewhether it is likely that the person or entity consulted withwill act adversely to the client’s interests before discussingmatters related to the client. The lawyer’s position in suchcases is an unavoidably difficult one.Appendix AAppendix A59


Emergency Legal AssistanceAppendix A9. In an emergency where the health, safety or a financialinterest of a person with seriously diminished capacity isthreatened with imminent and irreparable harm, a lawyermay take legal action on behalf of such a person eventhough the person is unable to establish a client-lawyerrelationship or to make or express considered judgmentsabout the matter, when the person or another acting ingood faith on that person’s behalf has consulted with thelawyer. Even in such an emergency, however, the lawyershould not act unless the lawyer reasonably believes thatthe person has no other lawyer, agent or other representativeavailable. The lawyer should take legal action on behalfof the person only to the extent reasonably necessaryto maintain the status quo or otherwise avoid imminentand irreparable harm. A lawyer who undertakes to representa person in such an exigent situation has the sameduties under these Rules as the lawyer would with respectto a client.10. A lawyer who acts on behalf of a person with seriously diminishedcapacity in an emergency should keep the confidencesof the person as if dealing with a client, disclosingthem only to the extent necessary to accomplish theintended protective action. The lawyer should disclose toany tribunal involved and to any other counsel involvedthe nature of his or her relationship with the person. Thelawyer should take steps to regularize the relationship orimplement other protective solutions as soon as possible.Normally, a lawyer would not seek compensation for suchemergency actions taken.60National Juvenile Defender Center


Client-Lawyer RelationshipRule 2.1 AdvisorIn representing a client, a lawyer shall exercise independentprofessional judgment and render candid advice. In renderingadvice, a lawyer may refer not only to law but to otherconsiderations such as moral, economic, social and politicalfactors, that may be relevant to the client’s situation.Client-Lawyer RelationshipRule 2.1 Advisor – CommentScope of Advice1. A client is entitled to straightforward advice expressingthe lawyer’s honest assessment. Legal advice often involvesunpleasant facts and alternatives that a client maybe disinclined to confront. In presenting advice, a lawyerendeavors to sustain the client’s morale and may put advicein as acceptable a form as honesty permits. However,a lawyer should not be deterred from giving candid adviceby the prospect that the advice will be unpalatable tothe client.Appendix A2. Advice couched in narrow legal terms may be of little valueto a client, especially where practical considerations,such as cost or effects on other people, are predominant.Purely technical legal advice, therefore, can sometimesbe inadequate. It is proper for a lawyer to refer to relevantmoral and ethical considerations in giving advice.Although a lawyer is not a moral advisor as such, moraland ethical considerations impinge upon most legal questionsand may decisively influence how the law will beapplied.3. A client may expressly or impliedly ask the lawyer forpurely technical advice. When such a request is made by aclient experienced in legal matters, the lawyer may acceptAppendix A61


it at face value. When such a request is made by a clientinexperienced in legal matters, however, the lawyer’s responsibilityas advisor may include indicating that moremay be involved than strictly legal considerations.4. Matters that go beyond strictly legal questions may alsobe in the domain of another profession. Family matterscan involve problems within the professional competenceof psychiatry, clinical psychology or social work; businessmatters can involve problems within the competenceof the accounting profession or of financial specialists.Where consultation with a professional in another field isitself something a competent lawyer would recommend,the lawyer should make such a recommendation. At thesame time, a lawyer’s advice at its best often consists ofrecommending a course of action in the face of conflictingrecommendations of experts.Offering AdviceAppendix A5. In general, a lawyer is not expected to give advice untilasked by the client. However, when a lawyer knows thata client proposes a course of action that is likely to resultin substantial adverse legal consequences to the client, thelawyer’s duty to the client under Rule 1.4 may requirethat the lawyer offer advice if the client’s course of actionis related to the representation. Similarly, when a matteris likely to involve litigation, it may be necessary underRule 1.4 to inform the client of forms of dispute resolutionthat might constitute reasonable alternatives to litigation.A lawyer ordinarily has no duty to initiate investigationof a client’s affairs or to give advice that the client has indicatedis unwanted, but a lawyer may initiate advice to aclient when doing so appears to be in the client’s interest.62National Juvenile Defender Center


Appendix BTen Core Principles for Providing QualityPublic Defense Delivery SystemsPreambleA. Goals of These PrinciplesThe Ten Core Principles for Providing Quality Delinquency Representationthrough Public Defense Delivery Systems 1 providecriteria by which a public defense delivery system 2 may fullyimplement the holding of In re Gault. 3 These Principles offerguidance to public defense leaders and policymakers regardingthe role of public defenders, contract attorneys, orassigned counsel in delivering zealous, comprehensive andquality legal representation on behalf of children facing bothdelinquency and criminal proceedings. 4 In applying thesePrinciples, advocates should always be guided by defensecounsel’s primary responsibility to zealously defend clientsagainst the charges leveled against them and to protect theirdue process rights.Appendix BDelinquency cases are complex and their consequences havesignificant implications for children and their families. Therefore,every child client must have access to qualified, wellresourceddefense counsel. These resources should includethe time and skill to adequately communicate with a client sothat lawyer and client can build a trust-based attorney-clientrelationship and so that the lawyer is prepared to competentlyrepresent the client’s interests. These Principles elucidateAppendix B63


the parameters of this critical relationship already well establishedin legal ethics rules and opinions.In 1995, the American Bar Association’s Juvenile Justice Centerpublished A Call for Justice: An Assessment of Access to Counseland Quality of Representation in Delinquency Proceedings, anational study that revealed major failings in juvenile defenseacross the nation. Since that time, numerous state-based assessmentshave documented in detail the manner in whichthese failings result in lifelong, harmful consequences for ournation’s children. 5 These Principles provide public defenseleaders and policymakers a guide to rectifying systemic deficitsand to providing children charged with criminal behaviorthe high quality counsel to which they are entitled.B. The Representation of Children and Adolescents is aSpecialty.Public defense delivery systems must recognize that childrenand adolescents are different from adults. Advances in brainresearch cited favorably by the Supreme Court in Roper v. Simmons6 confirm that children and young adults do not possessthe same cognitive, emotional, decision-making or behavioralcapacities as adults. Public defense delivery systems mustprovide training regarding the stages of child and adolescentdevelopment.Appendix BPublic defense delivery systems must emphasize that juveniledefense counsel has an obligation to maximize each client’sparticipation in his or her own case in order to ensure that theclient understands the court process and to facilitate informeddecision making by the client. Defense attorneys owe theirjuvenile clients the same duty of loyalty that adult criminalclients enjoy. This coextensive duty of loyalty requires the juveniledefense attorney to advocate for the child client’s expressedinterests with the legal knowledge, skill, thoroughnessand preparation reasonably necessary for the representation. 764National Juvenile Defender Center


C. Public Defense Delivery Systems Must Pay ParticularAttention to the Most Vulnerable and Over-RepresentedGroups of Children in the Delinquency System.Because research has demonstrated that involvement in thejuvenile court system increases the likelihood that a child willsubsequently be convicted and incarcerated as an adult, publicdefense delivery systems should pay special attention toproviding high quality representation for the most vulnerableand over-represented groups of children in the delinquencysystem.Nationally, children of color are severely over-represented atevery stage of the juvenile justice process. Defenders mustzealously advocate for the elimination of the disproportionaterepresentation of minority youth in juvenile courts anddetention facilities.Children with mental health and developmental disabilitiesare also overrepresented in the juvenile justice system. Defendersmust address these needs and secure appropriate assistancefor these clients as an essential component of qualitylegal representation.Drug- and alcohol-dependent juveniles and those dually diagnosedwith addiction and mental health disorders are morelikely to become involved with the juvenile justice system.Defenders must advocate for appropriate treatment servicesfor these clients.Research shows that the population of girls in the delinquencysystem is increasing, and that girls’ issues are distinct fromboys’. Gender-based interventions and the programmatic needsof girls in the juvenile delinquency system, who have frequentlysuffered from abuse and neglect, must be assessed and appropriategender-based services developed and funded. 8Appendix BThe special issues presented by lesbian, gay, bisexual andtransgender youth require increased awareness and trainingto ensure that advocacy on their behalf addresses their needs.Appendix B65


Ten Principles1The Public Defense Delivery System Upholds Juveniles’ ConstitutionalRights Throughout the Delinquency Process and Recognizes The NeedFor Competent and Diligent Representation.Appendix BA. Competent and diligent representation is the bedrock of ajuvenile defense attorney’s responsibilities. 9B. The public defense delivery system ensures that childrendo not waive appointment of counsel and that defensecounsel are assigned at the earliest possible stage of thedelinquency proceedings. 10C. The public defense delivery system recognizes that thedelinquency process is adversarial and provides childrenwith continuous legal representation throughout the proceedingsincluding, but not limited to, detention, pre-trialmotions or hearings, adjudication, disposition, post-disposition,probation, appeal, expungement and sealing ofrecords.D. The public defense delivery system includes the activeparticipation of the private bar or conflict office whenevera conflict of interest arises for the primary defender serviceprovider or when the caseload justifies the need foroutside counsel. 112The Public Defense Delivery System Recognizes that LegalRepresentation of Children is a Specialized Area of the Law.A. The public defense delivery system recognizes that representingchildren in delinquency proceedings is a complexspecialty in the law that is different from, but equally66National Juvenile Defender Center


as important as, the representation of adults in criminalproceedings. The public defense delivery system furtheracknowledges the specialized nature of representing juvenilesprosecuted as adults following transfer/waiverproceedings. 12B. The public defense delivery system leadership promotesrespect for juvenile defense team members and values theprovision of quality, zealous and comprehensive delinquencyrepresentation services.C. The public defense delivery system encourages experiencedattorneys to provide delinquency representationand strongly discourages use of delinquency representationas a training assignment for new attorneys or futureadult court advocates.3The Public Defense Delivery System Supports Quality JuvenileDelinquency Representation Through Personnel and Resource Parity. 13A. The public defense delivery system encourages juvenilespecialization without limiting access to promotions, financialadvancement, or personnel benefits for attorneysand support staff.B. The public defense delivery system provides a professionalwork environment and adequate operational resourcessuch as office space, furnishings, technology, confidentialclient interview areas 14 and current legal research tools.The system includes juvenile representation resources inbudgetary planning to ensure parity in the allocation ofequipment and resources.Appendix BAppendix B67


4The Public Defense Delivery System Uses Expert and Ancillary Services toProvide Quality Juvenile Defense Services.A. The public defense delivery system supports requestsfor expert services throughout the delinquency processwhenever individual juvenile case representation requiresthese services for quality representation. These servicesinclude, but are not limited to, evaluation by and testimonyof mental health professionals, education specialists,forensic evidence examiners, DNA experts, ballisticsanalysts and accident reconstruction experts.B. The public defense delivery system ensures the provisionof all litigation support services necessary for the deliveryof quality services, including, but not limited to, interpreters,court reporters, social workers, investigators, paralegalsand other support staff.5The Public Defense Delivery System Supervises Attorneys and Staff andMonitors Work and Caseloads.Appendix BA. The leadership of the public defense delivery systemmonitors defense counsel’s workload to promote qualityrepresentation. The workload of public defense attorneys,including appointed and other work, should never be solarge that it interferes with competent and diligent representationor limits client contact. 15 Factors that impactthe number of cases an attorney can appropriately handleinclude case complexity and available support services.B. The leadership of the public defense delivery system adjustsattorney case assignments and resources to guaranteethe continued delivery of quality juvenile defense services.68National Juvenile Defender Center


6The Public Defense Delivery System Supervises and SystematicallyReviews Juvenile Staff According to National, State and/or LocalPerformance Guidelines or Standards.A. The public defense delivery system provides supervisionand management direction for attorneys and team memberswho provide defense services to children. 16B. The leadership of the public defense delivery system clearlydefines the organization’s vision and adopts guidelinesconsistent with national, state and/or local performancestandards. 17C. The public defense delivery system provides systematicreviews for all attorneys and staff representing juveniles,whether they are contract defenders, assigned counsel oremployees of defender offices.7The Public Defense Delivery System Provides and RequiresComprehensive, Ongoing Training and Education for All Attorneys andSupport Staff Involved in the Representation of Children.A. The public defense delivery system recognizes juveniledelinquency defense as a specialty that requires continuoustraining 18 in unique areas of the law. The public defensedelivery system provides and mandates training 19on topics including detention advocacy, litigation and trialskills, dispositional planning, post-dispositional practice,educational rights, appellate advocacy and procedure andadministrative hearing representation.B. Juvenile team members have a comprehensive understandingof the jurisdiction’s juvenile law and procedure,and the collateral consequences of adjudication and conviction.Appendix BAppendix B69


C. Team members receive training to recognize issues thatarise in juvenile cases and that may require assistancefrom specialists in other disciplines. Such disciplines include,but are not limited to:1. Administrative appeals2. Child welfare and entitlements3. Special Education4. Dependency court/abuse and neglect court process5. Immigration6. Mental health, physical health and treatment7. Drug addiction and substance abuseAppendix BD. Training for team members emphasizes understanding ofthe needs of juveniles in general and of specific populationsof juveniles in particular, including in the following areas:1. Child and adolescent development2. Racial, ethnic and cultural understanding3. Communicating and building attorney-client relationshipswithchildren and adolescents4. Ethical issues and considerations of juvenile representation5. Competency and capacity6. Role of parents/guardians7. Sexual orientation and gender identity awareness8. Transfer to adult court and waiver hearings9. Zero tolerance, school suspension and expulsionpoliciesE. Team members are trained to understand and use specialprograms and resources that are available in the juvenilesystem and in the community, such as1. Treatment and problem solving courts 202. Diversionary programs3. Community-based treatment resources and programs4. Gender-specific programming70National Juvenile Defender Center


8The Public Defense Delivery System Has an Obligation to PresentIndependent Treatment and Disposition Alternatives to the Court.A. The public defense delivery system ensures that attorneysconsult with clients and, independent from court or probationstaff, actively seek out and advocate for treatmentand placement alternatives that serve the unique needsand dispositional requests of each child, consistent withthe client’s expressed interests.B. The leadership and staff of the public defense deliverysystem works in partnership with other juvenile justiceagencies and community leaders to minimize custodialdetention and the incarceration of children and to supportthe creation of a continuum of community-based, culturallysensitive and gender-specific treatment alternatives.C. The public defense delivery system provides independentpost-disposition monitoring of each child’s treatment,placement or program to ensure that rehabilitativeneeds are met. If clients’ expressed needs are not effectivelyaddressed, attorneys are responsible for interventionand advocacy before the appropriate authority.9The Public Defense Delivery System Advocates for the EducationalNeeds of Clients.A. The public defense delivery system recognizes that accessto education and to an appropriate educational curriculumis of paramount importance to juveniles facingdelinquency adjudication and disposition.B. The public defense delivery system advocates, eitherthrough direct representation or through collaborationswith community-based partners, for the appropriate provisionof the individualized educational needs of clients.Appendix BAppendix B71


10The Public Defense Delivery System Promotes Fairness and Equity ForChildren.A. The public defense delivery system demonstrates strongsupport for the right to counsel and due process in delinquencycourts to promote a juvenile justice system that isfair, non-discriminatory and rehabilitative.B. The public defense delivery system recognizes that disproportionaterepresentation of minority youth in the juvenilejustice system is contrary to notions of fairness and equality.The public defense delivery system works to draw attentionto, and zealously advocates for the elimination of,disproportionate minority contact.NotesAppendix B1The original Principles were developed over an eighteen-monthperiod through a collaborative venture between the NationalJuvenile Defender Center (NJDC) and the American Council ofChief Defenders, a section of the National Legal Aid and DefenderAssociation (NLADA). NLADA officially adopted theoriginal Principles on December 4, 2004. NJDC and NLADA collaboratedon additional revisions to release this updated version,which NLDA officially adopted on June 4, 2008.2For the purposes of these Principles, the term “public defensedelivery system” denotes legal delivery systems that providedefense services to indigent juveniles facing delinquency proceedings.This term is meant to encompass public defender offices,contract, appointed, and conflict counsel, law school clinics,and non-profit legal providers.3387 U.S. 1 (1967). According to the IJA/ABA Juvenile Justice StandardRelating to Counsel for Private Parties 3.1 (1996), “the lawyer’sprincipal duty is the representation of the client’s legiti-72National Juvenile Defender Center


mate interests” as distinct and different from the best intereststandard applied in neglect and abuse cases. The Commentarygoes on to state that “counsel’s principal responsibility lies infull and conscientious representation” and that “no lesser obligationexists when youthful clients or juvenile court proceedingsare involved.”4For purposes of these Principles, the term “delinquency proceeding”denotes all proceedings in juvenile court as well asany proceeding lodged against an alleged status offender, suchas for truancy, running away, incorrigibility, etc.5Common findings among these assessments include, amongother barriers to adequate representation, a lack of access tocompetent counsel, inadequate time and resources for defendersto prepare for hearings or trials, a juvenile court culture thatencourages pleas to move cases quickly, a lack of pretrial anddispositional advocacy and an over-reliance on probation. Formore information, see Selling Justice Short: Juvenile Indigent Defensein Texas (2000); The Children Left Behind: An Assessment ofAccess to Counsel and Quality of Representation in Delinquency Proceedingsin Louisiana (2001); Georgia: An Assessment of Access toCounsel and Quality of Representation in Delinquency Proceedings(2001); Virginia: An Assessment of Access to Counsel and Quality ofRepresentation in Delinquency Proceedings (2002); An Assessmentof Counsel and Quality of Representation in Delinquency Proceedingsin Ohio (2003); Maine: An Assessment of Access to Counsel andQuality of Representation in Delinquency Proceedings (2003); Maryland:An Assessment of Access to Counsel and Quality of Representationin Delinquency Proceedings (2003); Montana: An Assessment ofAccess to Counsel and Quality of Representation in Delinquency Proceedings(2003); North Carolina: An Assessment of Access to Counseland Quality of Representation in Delinquency Proceedings (2003);Pennsylvania: An Assessment of Access to Counsel and Quality ofRepresentation in Delinquency Proceedings (2003); Washington: AnAssessment of Access to Counsel and Quality of Representation in JuvenileOffender Matters (2003); Indiana: An Assessment of Access toCounsel and Quality of Representation in Delinquency Proceedings(2006); Florida: An Assessment of Access to Counsel and Quality ofAppendix BAppendix B73


Representation in Delinquency Proceedings (2006); Mississippi: AnAssessment of Access to Counsel and Quality of Representation inYouth Court Proceedings (2007); Illinois: An Assessment of Access toCounsel and Quality of Representation in Delinquency Proceedings(2007). All NJDC Assessments are available at http://www.njdc.info/assessments.php.6543 U.S. 551 (2005).7American Bar Association Model Rules of Professional Conduct, Rule1.1 Competence.8Justice by Gender: jointly issued by the ABA and the NBA 2001.9See generally, National Council of Juvenile and Family CourtJudges, Juvenile Delinquency Guidelines: Improving Court Practicein Juvenile Delinquency Cases (2005) [hereinafter Guidelines].American Bar Association Ten Principles of a Public Defense DeliverySystem (2002), Principle 3.10American Bar Association Ten Principles of a Public Defense DeliverySystem (2002), Principle 3.11A conflict of interest includes both codefendants and intra-familyconflicts, among other potential conflicts that may arise. Seealso American Bar Association Ten Principles of a Public DefenseDelivery System (2002), Principle 2.Appendix B12For purposes of this Principle, the term “transfer/waiver proceedings”refers to any proceedings related to prosecuting youthin adult court, including those known in some jurisdictions ascertification, bind-over, decline, remand, direct file, or youthfuloffenders.13American Bar Association Ten Principles of a Public Defense DeliverySystem (2002), Principle 8.14American Bar Association Ten Principles of a Public Defense DeliverySystem (2002), Principle 4.74National Juvenile Defender Center


15See generally, American Council of Chief Defenders Statement onCaseloads and Workloads, issued August 24, 2007; see also NationalStudy Commission on Defense Services, Guidelines for LegalDefense Systems in the United States (1976), 5.1, 5.3; American BarAssociation, Standards for Criminal Justice, Providing Defense Services(3rd ed., 1992), 5-5.3; American Bar Association, Standards forCriminal Justice: Prosecution Function and Defense Function (3rd ed.,1993), 4-1.3(e); National Advisory Commission on Criminal JusticeStandards and Goals, Report of the Task Force on Courts, Chapter 13,“The Defense” (1973), 13.12; National Legal Aid and Defender Associationand American Bar Association, Guidelines for Negotiatingand Awarding Contracts for Criminal Defense Services (NLADA, 1984;ABA, 1985), III-6, III-12; National Legal Aid and Defender Association,Standards for the Administration of Assigned Counsel Systems(1989), 4.1,4.1.2; ABA Model Code of Professional ResponsibilityDR 6-101; American Bar Association Ten Principles of a Public DefenseDelivery System (2002), Principle 5.16American Bar Association Ten Principles of a Public Defense DeliverySystem (2002), Principles 6 and 10.17For example, Institute of Judicial Administration-American Bar Association,Juvenile Justice Standards (1979); National Advisory Commissionon Criminal Justice Standards and Goals, Report of the TaskForce on Courts, Chapter 13, “The Defense” (1973); National StudyCommission on Defense Services, Guidelines for Legal Defense Systemsin the United States (1976); American Bar Association, Standardsfor Criminal Justice, Providing Defense Services (3rd ed., 1992); AmericanBar Association, Standards for Criminal Justice: Prosecution Functionand Defense Function (3rd ed., 1993); Standards and EvaluationDesign for Appellate Defender Offices (NLADA, 1980); PerformanceGuidelines for Criminal Defense Representation (NLADA, 1995).Appendix B18National Legal Aid and Defender Association, Training and DevelopmentStandards (1997), Standard 7.2, footnote 2. American BarAssociation Ten Principles of a Public Defense Delivery System (2002),Principle 9; National Legal Aid and Defender Association, Trainingand Development Standards (1997), Standards 1 to 9.Appendix B75


19American Bar Association Ten Principles of a Public Defense DeliverySystem (2002), Principle 9; National Legal Aid and DefenderAssociation, Training and Development Standards (1997), Standards1 to 9.20American Council of Chief Defenders, Ten Tenets of Fair andEffective Problem Solving Courts (2002).Appendix B76National Juvenile Defender Center


NJDCNational Juvenile Defender Center1350 Connecticut Avenue NW, Suite 304Washington, DC 20036202.452.0010 (phone)202.452.1205 (fax)www.njdc.info

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