2.5 Counsel in Delinquency Proceedings

• Library: Juvenile Law and Practice in Virginia (Virginia CLE) (2018 Ed.)

2.5 COUNSEL IN DELINQUENCY PROCEEDINGS

2.501 In General. The role of the lawyer representing a child in a delinquency proceeding is markedly different from that of a guardian ad litem. In fact, in a delinquency proceeding it is essential for the lawyer to remember that he or she is not serving as a guardian ad litem. A lawyer in a delinquency proceeding should represent the child in every way just as he or she would represent an adult for a similar charge. This is not to say that the roles are, in all respects, the same. Nevertheless, the child client has the same right to zealous representation as an adult client. Because so many lawyers fail to understand the nature of this relationship, several examples will be given later in this chapter to highlight the confusion of roles. ¹⁵⁹

The right to counsel is fundamental, as the Supreme Court of the United States indicated in Kent v. United States: ¹⁶⁰

The right to representation by counsel is not a formality. It is not a grudging gesture to a ritualistic requirement. It is of the essence of justice. ¹⁶¹

2.502 Ethical Concerns. The relevant rules and comments are set forth in paragraph 2.208 above. Legal Ethics Opinion No. 1798 provides, however, that a prosecutor "who accepts more cases than he can competently prosecute will be committing an ethical violation," and a footnote adds that "excessive caseloads for public defenders and court-appointed counsel raise the same ethical problems if each client's case cannot be attended to with reasonable diligence and competence."

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2.503 Rule 8:6 of the Rules of the Virginia Supreme Court. Rule 8:6 states that "[t]he role of counsel for a child is the representation of the child's legitimate interests." The official comment to the rule references the Standards of Practice for Indigent Defense Counsel which include standards for counsel appointed to represent juveniles in either delinquency proceedings or proceedings to determine whether a juvenile is in need of services or supervision. ¹⁶²

2.504 Juvenile Justice Standards.

A. American Bar Association. Standard 3.1 of the ABA's Juvenile Justice Standards Relating to Counsel for Private Parties states the following in regard to representation of clients charged with delinquency:

(a) Client's interests paramount. However engaged, the lawyer's principal duty is the representation of the client's legitimate interests. Considerations of personal and professional advantage or convenience should not influence counsel's advice or performance.

(b) Determination of client's interests.

(i) Generally. In general, determination of the client's interests in the proceedings, and hence the plea to be entered, is ultimately the responsibility of the client after full consultation with the attorney.

(ii) Counsel for the juvenile.

[a] Counsel for the respondent in a delinquency or in need of supervision proceeding should ordinarily be bound by the client's definition of his or her interests with respect to admission or denial of the facts or conditions alleged. It is appropriate and desirable for counsel to advise the client concerning the probable success and consequences of adopting any posture with respect to those proceedings.

. . . .

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[c] In delinquency and in need of supervision proceedings, where it is locally permissible to so adjudicate very young persons, and in child protective proceedings, the respondent may be incapable of considered judgment in his or her own behalf.

[1] Where a guardian ad litem has been appointed, primary responsibility for determination of the posture of the case rests with the guardian and the juvenile.

[2] Where a guardian ad litem has not been appointed, the attorney should ask that one be appointed.

[3] Where a guardian ad litem has not been appointed and, for some reason, it appears that independent advice to the juvenile will not otherwise be available, counsel should inquire thoroughly into all circumstances that a careful and competent person in the juvenile's position should consider in determining the juvenile's interests with respect to the proceeding. After consultation with the juvenile, the parents (where their interests do not appear to conflict with the juvenile's), and any other family members or interested persons, the attorney may remain neutral concerning the proceeding, limiting participation to presentation and examination of material evidence or, if necessary, the attorney may adopt the position requiring the least intrusive intervention justified by the juvenile's circumstances.

B. National Advisory Committee for Juvenile Justice and Delinquency Prevention. In Standard 3.134 of the Standards for the Administration of Juvenile Justice, the committee offers the following guidance for lawyers:

Role of Counsel. The principal duty of an attorney representing the state in a family court matter is to seek justice.

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The principal duty of an attorney representing a private individual in a matter within the jurisdiction of the family court should be to represent zealously that individual's legitimate interests. Determination of the client's interest under the law should ordinarily remain the responsibility of the client.

If an attorney finds, after interviews and other investigation, that a client cannot understand the nature and consequences of the proceedings and is therefore unable rationally to determine his/her own interests in the proceedings, the attorney should bring that circumstance to the court's attention, ask that a guardian ad litem be appointed on the client's behalf, and advise the court of possible conflicts of interest between the client and any person under consideration for appointment as guardian ad litem.

C. Indigent Defense Commission. The Virginia Indigent Defense Commission was established in 2004 to oversee and support attorneys performing court appointed criminal defense work. ¹⁶³ The Commission has promulgated Standards of Practice for Indigent Counsel to further the goal of high quality legal representation for all criminal defendants. ¹⁶⁴

2.505 Examples of Role Confusion.

Scenario 1. Martha Smith is appointed to represent Thomas, who is charged with the possession of cocaine. Thomas was stopped by the police at 9:00 p.m. while walking down a well-lit street in a known drug area. Although the police did not know Thomas and had no specific information that Thomas was involved in drug activity, he turned and walked in a different direction when the police made eye contact with him. Based on this information alone, he was stopped and a full-blown search of his person was conducted. Cocaine was found in his undershorts. Unfortunately, as it turns out, Thomas has a serious drug problem and desperately needs help for his addiction. Should Martha make a motion to suppress?

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Wrong Answer. Martha decides to forego making a motion to suppress because she fears the consequences to Thomas should she prevail. Knowing that a conviction is his only way to possible treatment, she makes a decision to act in Thomas' "best interest" by not making the motion. Thomas is never consulted regarding this decision.

Right Answer. Because Martha cares a great deal about what happens to Thomas, she struggles internally with this issue. She realizes that if her motion to suppress is granted, Thomas may not get the help he needs. She explains to Thomas his constitutional rights under the Fourth and Fourteenth Amendments and, at Thomas's direction, makes the motion to suppress. When she is successful and the charges against Thomas are dismissed, she takes the time to talk with Thomas about how damaging drug use can be, and she tells him to contact her should he decide to seek help voluntarily.

Scenario 2. Henry is charged with auto theft. After 21 days of detention, Henry appears in court for his adjudicatory hearing. The commonwealth's attorney moves for a continuance because the victim has not appeared, although he had personal notice of the court date. In spite of the personal service and the nonappearance of the victim, a continuance is granted in the case. Henry's mother tells his attorney, Mike Brown, that she thinks it will do Henry some good to stay in the detention home. Henry, of course, would like to go home and assures Mike that he will abide by any rules that may be placed upon him as a condition of release. Should Mike make an argument that Henry be released from detention pending his next court date?

Wrong Answer. Realizing that Henry's mother probably knows best, Mike decides not to argue for his release from detention. Mike agrees with Henry's mother that another couple of weeks may make a lasting impression on Henry and keep him from committing other crimes in the future. In addition, Mike has no idea to whom Henry would be released since his mother doesn't want him home.

Right Answer. Because Mike is thoroughly familiar with the juvenile code, he knows that section 16.1-277.1

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provides fairly strict time limitations within which juveniles who are being held in secure detention must be tried. Mike knows that a strong legal argument can be made for Henry's release. Realizing that he has not been appointed to represent Henry's mother, he argues for Henry's release and tells the court that Henry is willing to abide by any rules the court may impose as a condition of release. He makes the court aware that Henry's mother will not accept him into her home and suggests alternative places for Henry to reside upon his release.

These scenarios show that raising legal arguments on behalf a child is not always easy or comfortable. Counsel will often feel personally ambivalent about arguments that must be made. Nevertheless, an attorney representing a child in delinquency proceedings may not disregard the wishes of the child in deciding which legal arguments to advance on his or her behalf.

2.506 Timing of Appointment. Counsel must be appointed before the detention hearing or the...