OR R APPT COUNSEL Exhibit C
Qualification Standards for Appointed Counsel, Exhibit C
Oregon Revised Statutes
Qualification Standards for Court-Appointed Counsel to Represent Indigent Persons At State Expense
Exhibit C. Indigent Defense Task Force Report
Principles and Standards for Counsel In Criminal, Delinquency, Dependency and Civil Commitment Cases
General Principles for Counsel In Criminal, Delinquency, Dependency And Civil Commitment Cases
General Standards For Representation In All Criminal, Delinquency, Dependency And Civil Commitment Cases
Specific Standards For Representation In Criminal And Juvenile Delinquency Cases
Specific Standards For Representation In Juvenile Dependency Cases
Specific Standards For Representation In Civil Commitment Proceedings
PRINCIPLES. General Principles for Counsel In Criminal, Delinquency,
Dependency And Civil Commitment Cases
Sixth Amendment to the United States Constitution
In all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence (sic).
Article I, Section 11 of the Oregon Constitution
In all criminal prosecutions, the accused shall have the right ... to be heard by himself and counsel.
Fourteenth Amendment to the United States Constitution
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
The paramount obligation of counsel is to provide quality representation and diligent advocacy for the client at all stages of the representation.
To provide quality representation and diligent advocacy, counsel must preserve, protect and promote the client's rights and interests.
To ensure the preservation, protection and promotion of the client's rights and interests, counsel must:
1. be proficient in the applicable substantive and procedural law;
2. abide by the Code of Professional Responsibility and the rules of the court;
3. acquire and maintain appropriate experience, skills and training;
4. devote adequate time and resources to the case;
5. engage in the preparation necessary for quality representation;
6. endeavor to establish and maintain a relationship of trust and open communication with the client;
7. keep the client informed and seek the lawful objectives of the client; and
8. make accommodations where necessary due to a client's special circumstances, such as youth, mental or physical disability, or foreign language barrier.
To promote the interests of clients and society at large, counsel must actively seek improvement in the administration of justice, including the provision of adequate resources.
CHAPTER 1. GENERAL STANDARDS FOR REPRESENTATION IN ALL CRIMINAL, DELINQUENCY,
DEPENDENCY AND CIVIL COMMITMENT CASES
STANDARD 1.1. Prerequisites For Representation
Counsel shall only accept an appointment or retainer if counsel is able to provide quality representation and diligent advocacy for the client.
1. Counsel should be proficient in applicable substantive and procedural law and stay current with changes in constitutional, statutory, evidentiary law and local or statewide court rules.
2. Counsel should have appropriate experience, skills and training.
a. Counsel should obtain formal and informal training in the relevant areas of practice and should consult with others in the field, including non-attorneys.
b. Less experienced counsel should observe and when possible serve as co-counsel to more experienced attorneys. More experienced counsel should mentor less experienced attorneys.
3. Counsel should have adequate time and resources.
a. Counsel should not accept caseloads that by reason of excessive size and/or complexity interfere with the provision of quality representation.
b. Counsel should have access to sufficient support services and physical resources to allow for quality representation.
4. Counsel appointed by a court to represent a client at government expense shall meet and certify compliance with the "Qualification Standards for Court-Appointed Counsel to Represent Indigent Persons at State Expense", promulgated by the State Court Administrator.
STANDARD 1.2. General Duties And Responsibilities Of Counsel To Clients; Avoiding Conflict Of Interests
Upon being retained or appointed by the court, counsel should contact the client as soon as practicable AND maintain regular contact thereafter. Counsel should endeavor to establish a relationship of trust and open communication with the client and should diligently advocate the client's position within the bounds of the law and the Rules of Professional Responsibility.
1. As soon as practicable after being retained or appointed, counsel should contact the client and conduct an initial client interview.
2. Counsel should ensure that barriers to communication with the client, such as differences in language or literacy, are overcome. Counsel should make accommodations where necessary due to a client's special circumstances, such as youth, mental or physical disability, or foreign language barrier, including assuring that counsel has sufficient additional time and resources to make those accommodations.
3. Counsel should maintain regular contact with the client and should keep the client informed of the progress of the case, including:
a. the importance of maintaining contact with counsel and the need to notify counsel of any change of address;
b. the names and contact information regarding counsel and staff assisting with the case; and
c. any court dates and significant developments in the case.
4. Counsel should not delegate tasks to others if to do so would compromise the effectiveness of the representation. Counsel should not delegate non-ministerial and non-routine court appearances to other counsel without the consent of the client.
5. Counsel should be alert to all potential and actual conflicts of interest. If counsel identifies an actual conflict of interest, counsel should immediately request permission from the court to withdraw and substitution of qualified counsel. If counsel identifies a potential or likely conflict of interest, counsel should fully disclose the conflict to all affected clients and, if appropriate, obtain informed consent to proceed on behalf of those clients.
6. Counsel should preserve client confidences and secrets and should not knowingly disclose confidential information obtained during the course of representation, unless authorized to do so by the client or the court or as otherwise permitted by law or the Rules of Professional Responsibility.
STANDARD 1.3. Role Of Counsel
Counsel should seek the lawful objectives of the client and should not substitute counsel's judgment for that of the client in those case decisions that are the responsibility of the client.
1. Counsel is ordinarily bound by the client's definition of his or her interests and should not substitute counsel's judgment for that of the client regarding the objectives of the representation.
2. Counsel should advise the client regarding the probable success and consequences of adopting any posture in the proceedings and give the client the information necessary to make an informed decision. Counsel should consult with the client regarding the assertion or waiver of any right or position of the client.
3. Counsel should consult with the client as to the strategy and means by which the client's objectives are to be pursued and exercise his or her professional judgment concerning technical and legal tactical issues involved in the representation.
STANDARD 1.4. Initial Client Interview
Counsel should conduct a client interview as soon as practicable after being retained or appointed by the court, in order to obtain information necessary to provide quality representation at the early stages of the case and to provide the client with information concerning counsel's representation and the case proceedings.
1. To the extent possible, counsel should prepare for an initial interview with the client by reviewing petitions and/or charging documents, police and other investigative agency reports, and the reports of pretrial detention agencies, where applicable.
2. Counsel should conduct the initial interview with the client as soon as practicable and sufficiently before any court proceeding so as to be prepared for that proceeding. In instances where the client is detained or in custody, counsel should make every effort to conduct an initial interview within 48 hours of acceptance of a retainer or court appointment.
3. At the initial interview, counsel should obtain the following types of information from the client:
a. the facts surrounding the allegations against or affecting the client;
b. any possible witnesses who should be located;
c. any evidence of improper conduct by police or other investigative agencies, juvenile or mental health departments or the prosecution which may affect the client's rights;
d. any evidence that should be preserved; and
e. evidence of the client's competence to stand trial and/or mental state at the time of the offense.
4. Counsel should convey the following types of information to the client:
a. the nature of the allegations, what the state must prove, and the likely and maximum potential consequences;
b. the role of counsel and the defense function;
c. an explanation of the attorney-client privilege and instructions not to talk to anyone about the facts of the case without first consulting with the attorney;
d. a general procedural overview of the likely progression of the case;
e. the procedures that will be followed in setting the conditions of pretrial release, if applicable to the type of proceeding and the particular client;
f. an explanation of the type of information that will likely be requested in any interview that may be conducted by pretrial release, juvenile court counselors, children's services personnel, or civil commitment investigators or doctors and what information the client should and should not provide;
g. how and when counsel can be reached;
h. when counsel will see the client next;
i. realistic answers, where possible, to the client's most urgent questions; and
j. what arrangements will be made or attempted for the satisfaction of the client's most pressing needs; e.g., medical or mental health attention, contact with family or employers.
STANDARD 1.5. Theory Of The Case
During investigation and trial preparation, counsel should develop and continually reassess a theory of the case.
1. Counsel should develop an overall theory of the case that encompasses the best interests of the client and the realities of the client's situation in order to assist counsel in evaluating choices throughout the course of the representation.
2. Counsel should allow the case theory to focus the investigation and trial preparation of the case, seeking out and developing the facts and evidence that the theory makes material, but counsel should not become a "prisoner" of his or her theory.
CHAPTER 2. SPECIFIC STANDARDS FOR REPRESENTATION IN CRIMINAL AND JUVENILE
This chapter pertains to representation in both adult criminal and juvenile delinquency cases. The two types of proceedings are grouped together in one chapter because they have many similarities. Any differences in representation are indicated where appropriate. This grouping recognizes that counsel must employ the same general standards of practice in providing representation to youth in juvenile delinquency proceedings and to adult defendants in criminal cases, with special accommodation for the needs of juvenile clients. Efforts have been made to use generic terms that apply to both types of proceedings to the extent possible. For example, the term "disposition" refers to sentences in adult criminal cases and to juvenile dispositions, and the term "admission" includes guilty and nolo contendere pleas in criminal proceedings and admissions to allegation(s) in juvenile delinquency petitions. "Admission agreements" include plea agreements and agreements to admit jurisdiction in delinquency cases.
STANDARD 2.1. Prerequisites For Representation
Counsel should be proficient in applicable substantive and procedural law and should have appropriate experience, skill and training for the type of representation required.
1. In addition to meeting the requirements for experience and training in Standard 1.1, supra, counsel should have at least fifteen (15) hours of mandatory continuing legal education training each year, at least ten (10) of which should relate to the practice of criminal defense or juvenile law.
2. Counsel for juveniles should develop a basic knowledge of child development and adequate communication skills to communicate effectively with child clients.
3. Counsel should visit at least two correctional, juvenile or treatment facilities.
STANDARD 2.2. General Duties And Responsibilities Of Counsel; Avoiding Conflicts Of Interest
In adult criminal and juvenile delinquency matters, counsel or counsel associated in practice should avoid representing two or more clients who have been jointly charged or whose cases have been consolidated.
1. Counsel should follow Standard 1.2 Implementation 5 with regard to potential and actual conflicts of interest. In both adult criminal and juvenile delinquency matters, counsel and counsel associated in practice should avoid representing two or more clients who have been jointly charged or whose cases have been consolidated for trial or hearing.
STANDARD 2.3. Role Of Counsel
Counsel should seek the lawful objectives of the client and should not substitute counsel's judgment for that of the client in those case decisions that are the responsibility of the client.
1. Counsel should follow Standard 1.3, Implementations 1 and 2.
2. Decisions as to whether to enter an admission, accept diversion or other pretrial early disposition, testify, or waive any right with respect to jurisdiction, trial, or waiver, are ultimately for the client to determine.
3. In juvenile delinquency and status offense proceedings as in adult criminal matters, counsel is ordinarily bound by the client's definition of his or her interests and should not substitute counsel's judgment for that of the client regarding the objectives of the representation. See Standard 3.3, infra.
STANDARD 2.4. Obligations Of Counsel Regarding Pretrial Release
When a client is in custody, counsel should explore with the client the pretrial release of the client under the conditions most favorable to the client and attempt to secure that release.
1. Counsel should obtain information regarding the client's ties to family, the community, immigration status, school or employment records, physical and mental health, participation in community programs, past criminal and delinquency record, the ability of the client, relatives or third parties to meet any financial conditions of release and the names of individuals or other sources that counsel can contact to verify the information provided by the client.
2. Counsel should present to the appropriate judicial officer information about the client's circumstances and the legal criteria supporting release. Where appropriate, counsel should make a proposal concerning conditions of release that are least restrictive with regard to the client. Counsel should arrange for contact with or the appearance of parents, spouse, relatives of other per sons who may take custody of the client or provide third party surety.
3. Counsel for juveniles should seek to have a minister, teacher, relative or other mentor come to the detention hearing to offer to provide extra guidance and positive activities for the youth during release. Counsel for juveniles should be aware of the alternatives to secure detention, including group homes, residential treatment, drug and alcohol treatment facilities, house arrest or other non-secure community based alternatives.
4. If a juvenile client is released, counsel should assure that the client's needs for safety and right to receive treatment are met by agencies responsible for the client's care.
5. Where the client is not able to obtain release under the conditions set by the court, counsel should consider pursuing modification of the conditions of release under available procedures.
6. If the court sets conditions of release, counsel should explain to the client and any third party the conditions of release and potential consequences of violating such conditions. If the court sets as a condition of release that security be posted, counsel should explain to the client and any third party the available options, procedures, and risks in posting security.
7. Where the client is unable to obtain pretrial release, counsel should inform the court and the jail or juvenile detention facility personnel about any medical, psychiatric, or security needs of the client. Juvenile clients in detention or shelter care should be advised of the right to have the placement decision reviewed every ten days, and counsel should seek review if requested by the client.
STANDARD 2.5. Initial Court Appearances
Counsel should preserve all of the client's constitutional and statutory rights at initial court appearances.
1. Promptly advise the client of and take action to preserve all constitutional and statutory rights of the client, including the right to remain silent, to file motions challenging the charging instrument, and to enter a plea of not guilty or deny the allegations contained in a delinquency petition and to request a jury trial, where failure to do so may result in the client being precluded from later obtaining such rights.
2. Request a timely preliminary hearing, if it is provided for under the rules of the court, unless there is a sound tactical reason not to do so.
3. If a preliminary hearing is held, review the allegations, marshall the evidence, and prepare to challenge the state's evidence and arguments.
4. Review probable cause documents and any probable cause arguments, and, if no probable cause is established or other grounds for dismissal exist, ask the court to dismiss the charges.
5. Ensure that bail has been set, seek reductions in bail if appropriate, and initiate alternative release options.
STANDARD 2.6. Independent Investigation
Counsel should promptly conduct an independent review and investigation of the case, including obtaining information, research and discovery necessary to prepare the case for trial or hearing.
1. Obtain and examine all charging documents, pleadings and discovery.
2. Research and review the relevant statutes and caselaw to identify:
a. the elements of the charged offense(s);
b. any defects in the charging instrument, such as statute of limitations or double jeopardy; and
c. the available defenses, ordinary and affirmative, and whether notice of any defense is required and any specific timelines for giving such notice.
3. Conduct an in-depth interview with the client covering:
a. the events giving rise to the allegation(s);
b. the existence of witnesses or other potential sources of information;
c. any evidence of improper conduct by police or other investigative agencies, juvenile or mental health departments or the prosecution which may affect the client's rights; and
d. information relevant to pretrial/prehearing release and possible disposition.
4. Attempt to have all potential witnesses (adverse, neutral and favorable) located, interviewed, and, if appropriate, subpoenaed by an investigator or other appropriately trained person. If counsel conducts a witness interview, counsel should do so in the presence of a third person who is available to appear as a witness at trial or hearing.
5. Request and secure discovery including:
a. potential exculpatory information;
b. names and addresses of all prosecution witnesses, their prior statements, and criminal records;
c. oral and written statements by the client and details of the circumstances under which the statements were made;
d. the client's prior delinquency and/or criminal record and evidence of other misconduct that the prosecutor may intend to use against the client;
e. books, papers, documents, photographs, audio and videotapes, computer discs, tangible objects, buildings or other materials relevant to the case;
f. statements and reports of experts, including data and documents upon which they are based;
g. reports of and underlying data for relevant physical or mental examinations, scientific tests, experiments and comparisons;
h. statements of co-defendants;
i. inspection of physical evidence; and
j. reports or notes of searches or seizures and the circumstances of any searches or seizures.
6. When appropriate, request the opportunity to inspect the District Attorney's file, if the procedure in the local jurisdiction so provides.
7. Request and secure other information relevant to the case, including:
a. law enforcement notes (field notes);
b. client, victim or witness records, such as school, mental health, drug and alcohol and criminal records, with appropriate releases;
c. 911 tapes, interofficer radio transmissions and dispatch reports; and
d. internal affairs files and investigation records.
8. Inspect the scene of the alleged offense under circumstances similar to those existing at the time of the alleged incident (e.g., weather, time of day, and lighting conditions).
9. Be familiar with and where appropriate obtain the assistance of experts and other professionals to provide consultation and testimony regarding issues in the case, evaluations of clients and others, and testing of physical evidence.
STANDARD 2.7. Pretrial Motions; Hearings Regarding Ability To Aid And Assist And Waiver Of Juvenile Court Jurisdiction
Counsel should research, prepare, file and argue appropriate pretrial motions whenever there is reason to believe the client is entitled to relief. Counsel should be prepared to provide quality representation and advocacy for the client at any hearings regarding the client's ability to aid and assist and waiver of juvenile court jurisdiction.
1. Counsel should research, prepare, file and argue pretrial motions and notices if appropriate to address issues such as:
a. Constitutionality of relevant statute(s);
b. Defects in the charging process or instrument;
c. Severance of charges and/or co-defendants for trial;
d. Brady v. Maryland motions;
e. Motions to compel discovery;
f. Motions for sanctions because of discovery violations;
g. Violations of federal and state constitutional and statutory provisions, including but not limited to:
i. illegal searches and/or seizures;
ii. statements obtained in violation of the client's right to counsel or privilege against self-incrimination;
iii. unreliable identification evidence;
iv. speedy trial; and
v. double jeopardy.
h. Motions or requests for extraordinary expenses, such as:
ii. experts for psychological evaluation for the purpose of aid and assist, diminished capacity, guilty but insane, waiver or disposition; and
iii. forensic services.
i. Matters of trial evidence which may be appropriately litigated by means of a motion in limine.
j. Notices of affirmative defenses.
k. Motions to dismiss based on civil compromise, "best interests of the youth", "in the furtherance of justice" and "general equitable powers of the court".
2. Counsel should take the following steps with regard to seeking a determination of the client's ability to aid and assist:
a. Whenever counsel has a good faith doubt as to the client's ability to aid and assist in the proceedings, counsel should fully advise the client concerning the consequences of a determination that the client is unable to aid and assist and should move for an evaluation of the client, if the client so agrees. If the client opposes such an evaluation, counsel should inform the court that counsel has a good faith doubt of the client's ability to aid and assist in the matter, but should not divulge the client's confidences and secrets.
b. If the client agrees, counsel should obtain an independent evaluation of the client or should advocate that evaluators appointed by the court are qualified by training and experience to testify concerning the client's ability to aid and assist. If the client and prosecutor concur, counsel may stipulate that the client is unable to aid and assist counsel in the proceedings.
c. At the hearing to determine whether the client is able to aid and assist, counsel should protect and exercise the client's constitutional and statutory rights, including cross-examining the state's witnesses, calling witnesses on behalf of the client such as independent experts, and making appropriate evidentiary objections.
d. Counsel may elect to relate to the court personal observations of and conversations with the client to the extent that counsel does not disclose client confidences and secrets. Counsel may respond to inquiries about the attorney-client relationship and the client's ability to communicate effectively with counsel to the extent that such responses do not disclose the client's confidences and secrets.
e. If an adult client is found to be unable to aid and assist, counsel should advocate for the least restrictive level of supervision and the least intrusive treatment. If a juvenile client is found to be unable to aid and assist in a juvenile court proceeding, counsel should seek to resolve the delinquency matter by having the petition converted to a dependency petition. An appropriate disposition should be sought as in a dependency case. (See Standard 3.10, infra.)
f. If the client is found able to aid and assist, counsel should recognize a continuing obligation during the course of the proceedings to raise good faith concerns about the client's ability to aid and assist.
3. Counsel should do the following with regard to opposing waiver of juvenile court jurisdiction in juvenile proceedings:
a. Counsel should investigate and become knowledgeable about the consequences of waiver of juvenile court jurisdiction in the particular client's case and should thoroughly explain the consequences to the client.
b. If the client decides to oppose waiver of the juvenile court's jurisdiction, counsel should be fully prepared to present evidence and argument against the waiver, including that the client is still a child, would benefit from services in the juvenile system, has not had sufficient opportunity to be rehabilitated, would likely be harmed in the adult system and that the community could be adequately protected from the youth during treatment as a juvenile.
c. At the waiver hearing, counsel should address all the requirements of ORS 419C.349. To make an "amenability" argument, counsel should at a minimum:
i. describe the youth's background, including attachment to family and positive statements from individuals who believe the youth has potential;
ii. show that the youth was not thinking as an adult at the time of the offense;
iii. describe the youth's moral development and remorse;
iv. document successful juvenile interventions that have been used for similar youth; and
v. describe how the youth's delinquent behavior could change if services met his or her needs.
d. If juvenile court jurisdiction is waived, counsel should make effort to have the client released pending trial or held in a juvenile facility. If the client is transferred to an adult facility, counsel should advocate for measures that will protect the client and provide age appropriate services including mental health and educational or special education services.
STANDARD 2.8. Pretrial Negotiations And Admission Agreements
1. with the consent of the client explore diversion and other informal and formal admission or disposition agreements with regard to the allegations;
2. fully explain to the client the rights that would be waived by a decision to enter into any admission or disposition agreement;
3. keep the client fully informed of the progress of the negotiations;
4. convey to the client any offers made by the prosecution and the advantages and disadvantages of accepting the offers;
5. continue to preserve the client's rights and prepare the defense notwithstanding ongoing negotiations; and
6. not enter into any admission or disposition agreement on behalf of the client without the client's authorization.
1. Counsel should be fully aware, and ensure the client is fully aware, of:
a. rights the client will waive by entering into a pretrial admission or disposition agreement;
b. conditions and limits of the agreement;
c. nature of the admission hearing and the role the client will play in the hearing, including answering questions of the judge and in many instances, providing a statement concerning the offense;
d. deferred sentences, conditional discharges and diversion agreements;
e. the likely disposition, including what is required by the sentencing guidelines and the effect of the admission agreement on the client's criminal history;
f. possible and likely sentence enhancements, and probation or post-incarceration supervision consequences;
g. available drug rehabilitation programs, psychiatric treatment, and health care;
h. incarceration including any mandatory minimum requirements and maximum terms;
i. the possible and likely place and manner of confinement;
j. credit for pretrial detention;
k. the effect of good-time credits on the client's release date and how those credits are earned and calculated;
l. self-surrender to place of custody;
m. eligibility for correctional programs, work release and conditional leaves;
n. probation or suspension of sentence and permissible conditions of probation;
o. restitution, fines, assessments and court costs;
p. if applicable, parole or post-prison supervision eligibility, applicable ranges, and likely post-prison supervision conditions;
q. asset forfeiture;
r. collateral consequences of conviction, e.g. deportation, civil disabilities, and enhanced sentences for future convictions;
s. restrictions on, loss of, or other potential consequences affecting the client's driver's or professional license; and
t. possibility of later expungement and sealing of records.
2. In conducting negotiations, counsel should be familiar with the various types of admissions or pretrial dispositions that may be agreed to, including a plea of guilty, a plea of nolo contendere, a conditional plea of guilty, a plea in which the defendant is not required to personally acknowledge his or her guilt (Alford plea), and an admission to juvenile court jurisdiction.
3. The decision to enter an admission rests solely with the client and the client's decision must be knowing, voluntary and intelligent.
4. When the client enters an admission, counsel should make sure the full content and conditions of the admission agreement are placed on the record before the court.
5. If the client is in custody or may be taken into custody after entry of the admission, counsel should seek release pending formal disposition.
STANDARD 2.9. Trial
Counsel should be prepared to provide quality representation and advocacy for the client at any court or jury trial.
1. Preparation for Trial
a. In an adult criminal case, counsel should discuss with the client the relevant strategic considerations of waiving a jury trial in favor of a bench trial or plea;
b. Counsel should have the following materials available at the time of trial:
i. copies of all relevant documents filed in the case;
ii. relevant documents prepared by investigators;
iii. voir dire questions;
iv. outline or draft of opening statement;
v. cross-examination plans for all possible prosecution witnesses;
vi. direct examination plans for all prospective witnesses for the client;
vii. copies of subpoenas;
viii. prior statements of all the prosecution's witnesses (e.g., transcripts, police reports);
ix. prior statements of all the client's witnesses;
x. reports from experts;
xi. a list of exhibits, and the witnesses through whom they will be introduced;
xii. originals and copies of all documentary exhibits;
xiii. proposed jury instructions with supporting authority;
xiv. copies of all relevant statutes and cases;
xv. evidence codes and relevant statutes and/or compilations of evidence rules and criminal or juvenile law most likely to be relevant to the case;
xvi. outline or draft of closing arguments.
c. Counsel should decide whether to file a motion in limine to secure an advance ruling on issues likely to arise at trial (e.g., use of prior convictions to impeach the client) and, where appropriate, counsel should prepare motions and memoranda for such advance rulings.
d. Throughout the trial process, counsel should ensure all legal issues are preserved and an adequate record is made for appellate review. Counsel should assure that all proceedings are on the record.
e. Counsel should be prepared to make all appropriate evidentiary objections and offers of proof, and should vigorously contest the state's evidence through objections and cross-examination of state's witnesses.
f. Counsel should advise the client and the client's witnesses as to suitable courtroom dress, decorum, and demeanor, and should counsel the client and witnesses concerning timeliness and sobriety issues. If the client or the client's witness is incarcerated, counsel should ensure that the client or witness does not appear before the jury in jail clothing.
g. Counsel should plan with the client the most convenient system for conferring throughout the trial. Where necessary, counsel should seek a court order to have the client available for conferences.
h. Throughout preparation and trial, counsel should consider the potential effects that particular actions may have upon disposition if there is a finding of guilt or in a juvenile proceeding that the youth is within the jurisdiction of the court.
2. Jury Selection in Adult Criminal Cases
a. Counsel should be familiar with the procedures by which a jury venire is selected in the particular jurisdiction and should be alert to any potential legal challenges to the composition or selection of the venire.
b. Counsel should develop voir dire questions in advance of trial.
c. Counsel should tailor voir dire questions to the specific case. Among the purposes voir dire questions should be designed to serve are the following:
i. to elicit information about the attitudes of individual jurors, which will inform counsel about peremptory challenges and challenges for cause;
ii. to convey to the panel certain legal principles which are critical to the case;
iii. to preview the case for the jurors so as to lessen the impact of damaging information which is likely to come to their attention during the trial;
iv. to present the client and the client's case in a favorable light, without prematurely disclosing information about the case to the prosecutor; and
v. to establish a relationship with the jury.
d. Counsel should be familiar with the law concerning mandatory and discretionary voir dire inquiries so as to be able to defend any request to ask particular questions of prospective jurors.
e. Counsel should be familiar with the law concerning challenges for cause and peremptory challenges.
f. If the voir dire questions may elicit sensitive answers, counsel should request that questioning be conducted outside the presence of the remaining jurors.
g. In a group voir dire, counsel should avoid asking questions which may elicit responses which are likely to prejudice other prospective jurors.
h. Counsel should challenge for cause all persons about whom a legitimate argument can be made for actual prejudice or bias if it is likely to benefit the client.
3. Opening Statements
a. Prior to delivering an opening statement, counsel should ask for sequestration of witnesses, unless a strategic reason exists for not doing so.
b. Counsel's objective in making an opening statement may include the following:
i. provide an overview of the defense case;
ii. identify the weaknesses of the prosecution's case;
iii. emphasize the prosecution's burden of proof;
iv. summarize the testimony of witnesses and their roles in relationship to the entire case;
v. describe the exhibits which will be introduced and the role of each in relationship to the entire case;
vi. clarify the juror's responsibilities; and
vii. state the ultimate inferences which counsel wishes the jury to draw.
c. Counsel should consider incorporating the promises of proof the prosecutor makes to the jury during opening statement in the defense summation.
d. Whenever the prosecution oversteps the bounds of a proper opening statement, counsel should object, request a mistrial, or seek cautionary instructions, unless tactical considerations weigh against any such objections or requests.
a. Counsel should anticipate weaknesses in the prosecution's proof and consider researching and preparing corresponding motions for judgment of acquittal.
b. Counsel should consider the advantages and disadvantages of entering into stipulations concerning the prosecution's case.
c. In preparing for cross-examination, counsel should:
i. be prepared to question witnesses as to the existence of prior statements which they may have made or adopted;
ii. consider the need to integrate cross-examination, the theory of the defense and closing argument;
iii. consider whether cross-examination of each individual witness is likely to generate helpful information;
iv. anticipate those witnesses the prosecution might call in its case-in-chief and in rebuttal;
v. consider a cross-examination plan for each of the anticipated witnesses;
vi. be alert to inconsistencies or variations in a witness testimony;
vii. review all prior statements of the witnesses and any prior relevant testimony of the prospective witnesses;
viii. review relevant statutes and local police regulations for possible use in cross-examining police witnesses;
ix. be alert to issues relating to witness credibility, including but not limited to background, bias and motive for testifying.
d. Counsel should be aware of the applicable law concerning competency of witnesses and admission of expert testimony in order to raise appropriate objections.
e. Before beginning cross-examination, counsel should ascertain whether the prosecution has provided copies of all prior statements. If counsel does not receive prior statements of prosecution witnesses until the prosecution has completed direct examination, counsel should, at a minimum, request adequate time to review these documents before commencing cross-examination.
f. At the close of the prosecution's case and out of the presence of the jury, counsel should move for a judgment of acquittal on each count charged. Counsel should request, when necessary, that the court immediately rule on the motion in order that counsel may make an informed decision whether to present a defense.
g. Counsel should develop, in consultation with the client, an overall defense strategy. In deciding on defense strategy, counsel should consider whether the client's interests are best served by not putting on a defense case and instead relying on the prosecution's failure to meet its constitutional burden.
h. Counsel should discuss with the client all of the considerations relevant to the client's decision to testify.
I. Counsel should be aware of the elements of any affirmative defense and know whether, under the applicable law of the jurisdiction, the client bears a burden of persuasion or a burden of production.
j. In preparing for presentation of a defense case, counsel should:
i. develop a plan for direct examination of each potential defense witness;
ii. determine the order of witnesses;
iii. consider the possible use of character witnesses; and
iv. consider the need for expert witnesses.
k. In developing and presenting the defense case, counsel should consider the implications it may have for a rebuttal by the prosecution.
l. Counsel should prepare all witnesses for direct and possible cross-examination. Counsel should also advise witnesses of suitable courtroom dress and demeanor.
m. Counsel should conduct redirect examination as appropriate.
n. At the close of the defense case, counsel should renew the motion for judgment of acquittal (or directed verdict) on each charged count.
5. Closing Argument
a. In developing closing argument, counsel should review the proceedings to determine:
i. what aspects can best be used in support of the defense, for example:
(a) weaknesses in the prosecution's case; and
(b) favorable inferences to be drawn from the evidence.
ii. what to incorporate into the argument, for example:
(a) helpful testimony from direct and cross-examinations;
(b) verbatim instructions drawn from the jury charge; and
(c) responses to anticipated prosecution arguments;
iii. what the possible effects of the defense arguments are on the prosecution's rebuttal argument.
b. Whenever the prosecution exceeds the scope of permissible argument, counsel should object, request a mistrial, or seek cautionary instructions unless tactical considerations suggest otherwise.
c. Where appropriate, counsel should submit modifications of the standard jury instructions in light of the particular circumstances of the case, including the desirability of seeking a verdict on a lesser included offense.
d. Counsel should object to and argue against improper instructions proposed by the prosecution.
e. If the court refuses to adopt instructions requested by counsel, or gives instructions over counsel's objection, counsel should take all steps necessary to preserve the record.
f. During delivery of the charge, counsel should be alert to any deviations from the judge's planned instructions, object to deviations unfavorable to the client, and, if necessary, request additional or curative instructions.
g. If the court proposes giving supplemental instructions to the jury, counsel should request that the judge state the proposed instructions to counsel before they are delivered to the jury and, if appropriate, take all steps necessary to preserve the record.
STANDARD 2.10. Sentencing Or Disposition
1. be knowledgeable in disposition provisions and alternatives;
2. ensure the client is not harmed by inaccurate information or information that is not properly before the court in determining the disposition to be imposed;
3. ensure all reasonably available mitigating and favorable information is presented to the court.
4. in delinquency cases and in adult criminal cases as appropriate, be prepared to present a disposition plan on behalf of the client, as well as to respond to inaccurate or unfavorable information presented by other parties.
5. in delinquency cases, advocate for or develop dispositional resources that will aid the client in obtaining the least restrictive disposition, and obtain all appropriate orders to protect the youth's rights and interests.
1. Counsel should be fully aware, and make sure the client is fully aware of:
a. sentencing guideline structure, if applicable, or the maximum, mandatory, minimum and likely sentence or disposition, including likely jail, detention or prison time, or training school commitment;
b. the statutory and philosophical differences in juvenile court disposition and adult sentencing. The global focus of juvenile court dispositions include planning to meet the youth's educational, emotional and physical needs while protecting the public from future offenses;
c. imprisonment or incarceration, including any mandatory minimum requirements and maximum terms;
d. restitution, fines, unitary assessments and court costs;
e. possible and likely sentence enhancements, and probation, parole, or post-prison supervision consequences;
f. asset forfeiture;
g. deferred sentences, conditional discharges, informal disposition, or conditional postponement and diversion agreements;
h. probation or suspension of sentence and permissible conditions of probation;
i. possibility of later expungement and sealing of records;
j. the possible and likely place and manner of confinement;
k. credit for pretrial detention;
L. the effect of good-time credits on the client's release date and how those credits are earned and calculated;
m. if applicable, parole or post-prison supervision eligibility and applicable release ranges;
n. self-surrender to place of custody;
o. likely post-prison or training school supervision conditions;
p. eligibility for correctional programs, work release and conditional leaves;
q. available drug rehabilitation programs, psychiatric treatment, and health care;
r. collateral consequences of conviction, e.g. deportation, civil disabilities, sex offender registration, DNA and AIDS testing, and enhanced sentences for future convictions;
s. restrictions on, loss of, or other potential consequences affecting the client's driver's or professional license;
t. the purpose of the interview for the Pre-Sentence Investigation (PSI) or the interview of the juvenile court counselor for disposition, including that the client's attitude may be a critical factor in obtaining a favorable recommendation for sentencing or disposition and that clients who appear cooperative, concerned, remorseful, and responsible will fare better;
u. the juvenile court's very broad discretion in ordering dispositions that may range from fines, restitutions, community service or unsupervised probation (bench probation), in which the youth is placed at home, to closely supervised probation at home, placement in a group home in the community, placement in a highly structured residential treatment program, placement in a staff secure or locked program, commitment to a locked psychiatric hospital, or commitment to a locked juvenile institution (training school).
2. Counsel should be familiar with the sentencing and dispositional hearing procedures, including:
a. effect that plea negotiations may have upon the sentencing discretion of the court;
b. procedural operation of any sentencing guideline system;
c. effect of a judicial recommendation against deportation;
d. access to the presentence or dispositional report by counsel, the client, and others;
e. availability of assessments such as psychiatric, psychological, educational or neurological evaluations to both the PSI investigator or juvenile court counselor and client's counsel in preparing sentencing or dispositional recommendations;
f. prosecution's practice in preparing sentencing or dispositional recommendations;
g. use of a sentencing or dispositional memorandum by counsel;
h. opportunity to challenge information presented to the court for sentencing or dispositional purposes;
i. availability of an evidentiary hearing to challenge information and the applicable rules of evidence and burdens of proof at such a hearing;
j. disposition alternatives available to the juvenile court and the various agencies that serve youth and families that can provide treatment, placement and other dispositional services that may be required, such as anger management counseling, individual therapy, and sex offender treatment;
k. that the youth's parents may be court ordered to participate in the youth's counseling or attend counseling or drug or alcohol treatment themselves, as well as being required to pay support for the youth while in out-of-home care or incarceration;
L. participation that victims and prosecution or client's witnesses may have in the sentencing or dispositional proceedings;
m. witnesses that may be called by counsel, such as family members, teachers, ministers or others who have worked with the client;
n. the admissibility of other evidence, such as letters of support, education or medical records, or evidence of participation in community or church activities.
3. Counsel should:
a. inform the client of the applicable sentencing requirements, options, and alternatives, and the likely and possible consequences thereof;
b. maintain regular contact with the client prior to the sentencing hearing and keep the client informed of the steps being taken in preparation for sentencing;
c. obtain from the client information such as the client's background and personal history, prior criminal record, employment history and skills, education, medical history and condition, financial status, and sources through which the information can be corroborated;
d. determine with the client whether to obtain an independent psychiatric, psychological, educational or neurological or other evaluation for sentencing or dispositional purposes;
e. if the client is being evaluated, whether by the state or at counsel's request, counsel should call or write the evaluator in advance to provide favorable background information for the evaluator's use and to request that the evaluator address the client's emotional, educational and other needs as well as alternative dispositions that will best meet those needs and society's needs for protection;
f. ensure that the client who is being evaluated understands the process, is not frightened, and is encouraged to cooperate;
g. prepare the client to be interviewed for a presentence or dispositional report;
h. inform the client of the client's right to address the court at sentencing or disposition and inform the client of the possible consequences that admission of guilt may have upon an appeal, retrial or trial on other offenses;
i. ensure that the client has adequate time to examine the presentence report or dispositional report;
j. inform the client of the effects that admissions and other statements may have upon an appeal, retrial, parole proceedings, or other judicial proceedings, such as forfeiture or restitution proceedings;
k. collect documents and affidavits to support the client's position, prepare witnesses to testify at the sentencing or disposition and request the opportunity to present tangible and testimonial evidence.
4. Counsel should be familiar with the procedures concerning the preparation, submission, and verification of the presentence investigation report or dispositional report. In addition, counsel should:
a. provide to the official preparing the report relevant information favorable to the client, including the client's version of the offense;
b. take appropriate steps to ensure that erroneous or misleading information which may harm the client is deleted from the report;
c. request permission to see copies of the report prior to transmittal to the court to be sure that the information challenged has actually been removed from the report.
5. Counsel should determine whether the prosecution will advocate that a particular type or length of sentence or disposition be imposed.
6. If a written sentencing or disposition memorandum is submitted by the prosecution, counsel should verify that the information presented is accurate; if the memorandum contains erroneous or misleading information, counsel should take appropriate steps to correct the information unless there is a sound strategic reason for not doing so.
7. When the court has found evidence sufficient to support jurisdiction in a delinquency case, counsel should, when appropriate, ask the court not to exercise jurisdiction and move to dismiss the petition on the ground that jurisdiction is not in the best interests of the youth or society.
8. Counsel should prepare and present to the court a sentencing or disposition memorandum where there is a strategic reason for doing so.
9. Counsel should be prepared at the sentencing or disposition proceeding to take the steps necessary to advocate fully for the requested sentencing or disposition and to protect the client's interest.
10. Counsel in delinquency cases should be prepared to present evidence on the reasonableness or unreasonableness of OVA or SOSCF's efforts and alternative efforts that could have been made, and where appropriate request a "no reasonable efforts" finding by the court.
11. In the event facts will be disputed at sentencing or disposition, counsel should consider requesting an evidentiary hearing. Where a sentencing hearing will be held, counsel should ascertain who has the burden of proving a fact unfavorable to the defendant, be prepared to object if the burden is placed on the defense, and be prepared to present evidence, including testimony of witnesses, to contradict erroneous or misleading information unfavorable to the defendant.
12. Where information favorable to the client will be disputed or challenged, counsel should be prepared to present supporting evidence, including testimony of witnesses.
13. Where the court has the authority to do so, counsel should request specific orders or recommendations from the court concerning the place of confinement, parole eligibility, psychiatric treatment or drug rehabilitation, permission for the client to surrender directly to the place of confinement, credit for time served, good time credits, and against the deportation of the defendant.
14. Where appropriate, counsel should prepare the client to personally address the court.
STANDARD 2.11. Post-disposition Procedures
Counsel should be familiar with the procedures available to the client after disposition.
1. Counsel should be familiar with the procedures to request a new trial including the time period for filing such a motion, the effect it has upon the time to file a notice of appeal, and the grounds that can be raised.
2. Counsel should inform the client of his or her right to appeal the judgment and/or the sentence or disposition of the court and the action that must be taken to perfect an appeal. In circumstances where the client wants to file an appeal but is unable to do so without the assistance of counsel, the attorney should file the notice in accordance with the rules of the court and take such other steps as are necessary to preserve the client's right to appeal.
3. Where a client indicates a desire to appeal the judgment and/or sentence or disposition of the court, counsel should inform the client of any right that may exist to be released pending the disposition of the appeal.
4. Where a custodial sentence has been imposed, counsel should consider requesting a stay of execution of the judgment to permit the client to report directly to the place of confinement.
5. Counsel should inform the client of procedures available for requesting a discretionary review of or reduction in the sentence imposed by the trial court, including any time limitations that apply to such a request.
6. Counsel should inform the client of any procedures available for requesting that the record of conviction be expunged or sealed.
CHAPTER 3. SPECIFIC STANDARDS FOR REPRESENTATION IN JUVENILE DEPENDENCY CASES
This Chapter pertains to representation of children and parents in juvenile dependency cases. These cases are primarily civil in nature and procedure, but are often referred to as "quasi-criminal" because of the significance of the rights and deprivations involved. At stake for children is their liberty, their right to membership in their family of origin and their right to be safe, healthy and protected. At stake for parents is their right to raise their children as they think best without state interference, and ultimately, the absolute and final termination of their parental rights.
Practice in juvenile dependency cases is unique and challenging, requiring continual training to assure the best legal representation of clients. Juvenile dependency cases may be as different and varied as the children and families involved in them. These training and practice standards are intended to help attorneys better meet the needs of their clients in juvenile dependency cases, and to improve the level of practice in these cases. The participation of counsel on behalf of all parties subject to juvenile and family court proceedings is essential to the administration of justice and to the fair and accurate resolution of issues at all stages of those proceedings. These Standards recognize the importance of independent representation for children in juvenile dependency cases, and advocate for counsel to represent the child's articulated position in all but the exceptional case.
STANDARD 3.1. Prerequisites For Representation
Counsel should be proficient in applicable substantive and procedural juvenile law and should have appropriate experience, skill and training for the type of representation required.
1. Every dependency case is different and varied approaches may be required in the legal representation of a child or parent. Effective legal practice in dependency cases requires a wide variety of skills unique to this practice.
2. In addition to meeting the requirements for experience and training contained in Standard 1.1, supra, counsel for children, parents or guardians in dependency cases should:
a. meet the requirements of the QUALIFICATION STANDARDS FOR COURT-APPOINTED COUNSEL TO REPRESENT INDIGENT PERSONS AT STATE EXPENSE, Oregon Judicial Department (1990), Standard 3.1 G, which provides, inter alia, that an attorney is qualified for appointment to juvenile cases, under ORS Chapter 419, if he or she:
i. For all cases, has knowledge of juvenile justice statutes, case law, standards, and procedures; has observed at least one contested juvenile court case; is generally familiar with services available to children and parents in the juvenile system; and has reviewed and is familiar with the following materials:
1) Oregon Revised Statutes, Chapter 419, Oregon Juvenile Code.
2) Oregon Revised Statutes, Chapter 417, Interstate Compact on Juveniles and the Community Juvenile Services Act.
3) Oregon Revised Statutes, Chapter 418, Child Welfare Services and Reporting of Child Abuse.
4) Oregon Revised Statutes, Chapter 420, Juvenile Training Schools and Youth Care Centers.
5) Oregon State Bar, Juvenile Law (1984, Supp. 1988).
6) Pub. L. 96-272, Adoption Assistance and Child Welfare Act of 1980.
7) Pub. L. 95-608, Indian Child Welfare Act of 1978, 25 USC secs. 1901-1963 (1982).
8) Education of the Handicapped Act of 1975, 20 USC secs. 1400-1485 (1982, Supp. 1987).
9) Pub. L. 93-112, Title V, sec 504, Rehabilitation Act of 1975, 20 USC sec. 794 (1982).
b. be familiar with:
i. the causes and available treatment for child abuse and neglect;
ii. the child welfare and family preservation services available through State Offices for Services to Children and Families (formerly Children's Services Division (CSD) referred to hereinafter as SOSCF) and available in the community and the problems they are designed to address;
iii. the basic structure and functioning of SOSCF and the juvenile court, including court procedures, the functioning of the Citizen Review Boards (hereinafter referred to as CRB) and Court Appointed Special Advocates (hereinafter referred to as CASA) programs.
c. Counsel new to dependency cases are encouraged to work with a mentor for the first three months and at a minimum should observe or co-counsel each type of dependency hearing from shelter care through review of permanent plan prior to accepting appointments.
d. In termination of parental rights cases, counsel for children or parents must meet the standards for dependency cases and have handled dependency cases for a minimum of six months as a full-time juvenile defender or must have handled at least 25 juvenile dependency cases that have gone past the jurisdictional phase.
3. Counsel should develop a basic knowledge of child development and adequate communication skills to communicate with child clients and witnesses.
a. Interviewing techniques should be age appropriate and take into consideration the type of abuse the child is alleged to have suffered.
b. Communicating with a child client, especially with regard to legal matters, may require efforts beyond those normally required for effective communications with adult clients. Counsel for children should therefore be especially sensitive to the child's stage of development, including:
i. cognitive, emotional and social growth stages;
ii. level of education;
iii. cultural context; and
iv. degree of language acquisition.
c. Knowledge of the basic stages of child development will help counsel develop sensitivity and age-appropriate communication skills.
d. As with any client, counsel may advise the child client about their position in the case, but counsel should recognize that the child client may be more susceptible to intimidation and manipulation, and should ensure that the client's ultimate decision actually reflects the child's actual desires.
4. Counsel for children, parents or guardians in dependency cases should also visit at least two of the following:
a. a shelter home or facility;
b. a foster home;
c. a group home;
d. a residential treatment facility;
e. the Oregon State Hospital Child or Adolescent Psychiatric Ward; or
f. an outpatient treatment facility for children.
5. All attorneys representing children, parents or guardians in dependency cases should average at least 15 hours of Continuing Legal Education (CLE) each year, at least 8 hours of which should relate to the practice of juvenile law.
a. Counsel are encouraged to seek training in the subject areas listed in Implementation 2, 3 and 4 supra.
b. Counsel are also encouraged to seek training in the following areas:
i. substance abuse and resources for substance abusing families;
ii. cultural and ethnic differences as they relate to child rearing;
iii. government benefits available in dependency cases, such as Social Security payments including non-needy relative grants, AFDC and AFDC-FC, Adoption Assistance Programs, and crime victims programs;
iv. Independent Living Programs;
v. emancipation laws and programs;
vi. Family Preservation Services;
vii. resources for the diagnosis and treatment of sexual abuse, physical abuse, and emotional abuse;
viii. patterns of child growth as related to neglect;
ix. resources for the treatment and recognition of non-organic failure to thrive;
x. Educational, mental health and other resources for special needs children;
xi. the use and appropriateness of psychotropic drugs for children;
xii. domestic violence, its effect on children and appropriate resources;
xiii. immigration law issues in juvenile court;
xiv. transitional aspects of placement and the child's return home;
xv. the importance of placing siblings together when appropriate;
xvi. the appropriateness of various types of placement;
xvii. the efforts that should be made to ensure a smooth, timely transition;
xviii. the effect of the placement on visitation by parents, siblings and other relatives;
xix. the effect of the placement on the service needs of the child;
xx. the transracial, transcultural and language aspects of the placement;
xxi. risk assessment prior to reunification;
xxii. the basics of case planning;
xxiii. accessing private insurance for services;
xxiv. consolidated cases in the family court;
xxv. the Indian Child Welfare Act, Native American families and appropriate resources;
xxvi. the Uniform Child Custody Jurisdiction Act (UCCJA);
xxvii. the Parental Kidnapping Protection Act;
xxviii. the Interstate Compact for the Placement of Children;
xxvix. the Interstate Compact on Juveniles;
xxxi. adoption placement preferences.
STANDARD 3.2. General Duties And Responsibilities Of Counsel To Client; Avoiding Conflict Of Interests
Counsel or counsel associated in practice should not represent two or more clients who are parties to the same or consolidated juvenile dependency cases unless it is clear there is no conflict of interest between the parties. Counsel should act in a professional manner in zealously advocating the client's position.
1. Counsel should comply with Standard 1.2, Implementation 5, supra. Counsel should be especially cautious when accepting representation of more than one parent, guardian or child. Counsel should avoid representing both parents in dependency cases and should never represent both parents in cases that involve allegations of sexual, physical or emotional abuse, or when the interests of the parents may be adverse. Counsel should avoid representing multiple siblings when their interests may be adverse and should never represent siblings where it is alleged that one sibling has physically or sexually abused another sibling. Child clients may not be capable of consenting to multiple representation even after full disclosure.
2. Counsel should preserve the attorney-client privilege and not disclose, without the client's permission or as otherwise provided by law, confidential information. Counsel should try to avoid publicity connected with the case. Counsel should be cognizant of the emotional nature of these cases, the confidential nature of the proceedings and the privacy needs of the client.
3. Counsel should initiate and answer all correspondence and telephone calls which are necessary to the effective representation of the client.
4. Counsel should avoid ex parte communication regarding pending cases with the judicial officer before whom the case is pending.
5. Counsel should maintain professional decorum when appearing before the juvenile court. Counsel should identify for the record any person who is present in the courtroom on behalf of a client.
6. Counsel may not contact represented parties without the consent of their counsel.
STANDARD 3.3. Role Of Counsel
It is the duty of counsel to determine whether a child client is capable of considered judgment. If counsel determines that the child is not capable of considered judgment, counsel should advocate what is in the client's best interests.
When representing parents and children capable of considered judgment, counsel should seek the lawful objectives of the client and should not substitute counsel's judgment in those case decisions that are the responsibility of the client.
1. In determining whether a child is capable of considered judgment, counsel should consider:
a. the child's chronological and intellectual age;
b. the child's developmental stage;
c. the child's sophistication and experience;
d. whether the child is articulating a position concerning the issues of the case; and
e. the presence of undue influence.
2. Whether a child is capable of considered judgment and able to contribute to a determination of their position in the case depends on the context and circumstances at the time the position must be determined. A child may be able to determine some positions in the case but not others.
3. Ideally, a guardian ad litem should be appointed in every case in which the child is incapable of considered judgment. These standards suggest, but do not require such appointments because of the expense associated with such appointments and the long-term practice in Oregon courts of not appointing guardians ad litem in juvenile court cases.
a. Where a guardian ad litem has been appointed, primary responsibility for determination of the posture of the case rests with the guardian ad litem and the child.
b. Where a guardian ad litem has not been appointed, counsel should consider asking that one be appointed and consideration should be given to appointment of an appropriately trained CASA or other qualified volunteer as guardian ad litem.
4. When representing parents and children capable of considered judgment, decisions that are ultimately the client's to make include whether to:
a. admit the allegations of the petition;
b. agree to jurisdiction, wardship and temporary commitment to SOSCF;
c. accept a conditional postponement; or
d. agree to specific services or placements.
5. Counsel should advise the client concerning the probable success and consequences of adopting any posture in the proceedings. It is the duty of counsel to give the client the information necessary to make an informed decision, including advice and guidance, but to not overbear the will of the client. Counsel may not advocate a position contrary to the client's expressed position.
6. When representing parents and children capable of considered judgment, counsel is bound by and should advocate for the client's definition of his or her interests, and may not substitute counsel's judgment for the client's, nor ignore the client's wishes because they are perceived not to be in the best interests of the child.
7. If the client is not capable of considered judgment and a guardian ad litem has not been appointed, counsel should inquire thoroughly into all circumstances that a careful and competent person in the child's position should consider in determining the child's best interests with respect to the proceeding. After consultation with the child, the parents (where their interests do not appear to conflict with the child's), and any other family members or interested persons, such as the caseworker or child's therapist, counsel shall advocate what counsel determines to be the best interests of the child.
8. Where there is a conflict between what counsel has determined would be in the best interests of a child who is not capable of considered judgment, and the child's stated desires, counsel must to the greatest extent possible resolve the conflict by working with the young client, although this sensitive issue cannot always be avoided or completely resolved. If unable to resolve the conflict, counsel should communicate the child's wishes to the court but advocate for what counsel determines to be the best interests of the child.
9. Unless inconsistent with the client's interests, counsel should cooperate with other parties to the case.
STANDARD 3.4. Obligations Of Counsel Regarding Pre-trial Placement
When a child has been removed from the parent's home and placed in shelter care, counsel should advocate for the placement order and other temporary orders the client desires, unless the client is a child incapable of considered judgment, in which case, counsel should advocate for the placement order and other temporary orders that are in the best interests of the child.
1. Counsel should be familiar with statutory and case law that requires SOSCF to make reasonable efforts to prevent removal of a child and that removal is only allowed in cases of imminent danger.
2. Counsel should be familiar with the types of placements available to children and placement issues including:
a. the necessity of placement;
b. alternatives to placement;
c. relative placement;
d. the impact of removal and placement on the child;
e. the importance of placing sibling together when appropriate;
f. the appropriateness of the placement;
g. efforts that can be made to ensure a smooth transition to a new placement;
h. the effect of the placement on visitation;
i. the effect of the placement on service needs of the child or family; and
j. the transracial, transcultural and language aspects of the placement.
3. At the shelter care hearing, counsel should:
a. obtain copies of all relevant documents;
b. take time to talk to the client, asking for a recess or continuance if necessary;
c. assist the client in exercising his or her right to an evidentiary hearing to demonstrate to the court that the child can be returned home without further danger of suffering physical injury or emotional harm, endangering or harming others, or not remaining within the reach of the court process prior to adjudication;
d. where appropriate, present facts and arguments regarding:
i. jurisdictional sufficiency of the petition;
ii. adequacy of notice provided to parties, particularly if they are not present;
iii. the necessity of shelter care;
iv. why continuation of the child in the home would be contrary to the child's welfare or why it is in the best interest and for the welfare of the child that the child be removed from home or continued in care;
v. whether reasonable efforts were made to prevent removal;
vi. whether reasonable and available services can prevent or eliminate the need to separate the family;
vii. whether the placement proposed by SOSCF is the least disruptive and most family-like setting that meets the needs of the child;
viii. the possibility of placement with appropriate non-custodial parents and relatives;
ix. a plan for release of the child prior to the jurisdictional hearing;
x. if the child remains in shelter care, arrangements for visits and alternatives to shelter care to be explored such as relative placement, intensive in-home services and mediation.
e. propose return to parents or placement that is the least restrictive with regard to the client.
4. If a child is returned to parents or placed in shelter care or other state placement, counsel for the child should assure that the child's needs for safety and right to receive treatment are met by the child's caretakers or agencies responsible for the child's care. Counsel should inform the Court, SOSCF and the caretakers for the child about any medical, psychiatric, or security needs of the client.
5. Counsel should request any temporary orders which the client desires or, if representing a child not capable of considered judgment, which are in the best interests of the child, including:
a. temporary restraining orders including orders expelling an allegedly abusive parent from the home;
b. orders governing future conduct of the parties, i.e. remaining clean and sober while the child is present, etc.;
c. orders for any services agreed upon prior to adjudication;
d. visitation orders that are reasonable and flexible and take into consideration the parties' work and counseling schedules and available transportation and that specify the terms and conditions of visitation;
e. orders for the parent(s) to pay child support if appropriate;
f. orders for SOSCF to investigate relatives and friends of the family as potential placements, or to place sibling groups together; and
g. Orders for the agency to provide appropriate treatment for the child.
6. Counsel should inform the client of the possibility for rehearing of the shelter care order or appeal from a shelter care order of a referee to a judge and the possibility of pursuing a writ of habeas corpus.
7. If the court sets conditions of the child's placement, counsel should explain to the client and any third party the conditions and potential consequences of violating such conditions. Counsel should seek review of shelter care decisions every ten days or as appropriate and advise clients or any third parties of changes in conditions for pre-trial placement that would be likely to get the Court to agree with the client's plan.
8. Counsel should ask the court to inquire of parties concerning the paternity of the child and the applicability of the Indian Child Welfare Act (ICWA) or the Uniform Child Custody Jurisdiction Act (UCCJA).
STANDARD 3.5. Initial Client Interview And Client Contact
Establishing and maintaining a relationship with the client is the foundation of the attorney-client relationship. Counsel should conduct an initial interview of the client within 72 hours and maintain regular contact with the client throughout the case.
1. Counsel should comply with Standard 1.2, Implementations 1, 2 and 3, and Standard 1.3, supra, and in addition, upon being retained or appointed, counsel should make an initial contact with the client or the client's caretaker within 24 hours and, where appropriate conduct an initial interview within 72 hours. At the initial interview, counsel should explain to the client in age appropriate language:
a. juvenile court and SOSCF procedures;
b. the client's rights;
c. the role and responsibilities of the attorney;
d. the role of each player in the system;
e. alternatives and options available to the client;
f. the consequences of selecting one option over another.
2. Counsel should give the client time to ask questions and consider the alternatives. Counsel should obtain information from the client about:
a. the client's prior contacts with SOSCF;
b. the client's knowledge about the allegations of the petition;
c. the accuracy of information provided by the state supporting the petition;
d. alternative or additional allegations that should be added to the petition;
e. services provided prior to removal or intervention;
f. reasons for removal or intervention;
g. services the client feels would have avoided the need for removal;
h. alternatives to removal including relative placements, in-home services or removal of the perpetrator;
i. current efforts to reunify the family;
j. family history including identity of prior caretakers of the child;
k. services needed by the child, parents or guardians;
L. the client's concerns about placement;
m. the client's long and short-term goals;
n. current visitation and the client's desires concerning visitation;
o. whether the client wishes to attend the hearing and if the client is a child, whether the client wishes to address the court outside the presence of the other parties;
p. the applicability of the Indian Child Welfare Act and relevant other cultural, religious, social and sexual preference issues; and
q. any other relevant information.
3. Counsel representing a child should gather information from the child and the child's caretakers, caseworker and therapist, if any, to assist in determining whether the child is capable of considered judgment.
4. All child clients should, at a minimum, be personally contacted by counsel and/or counsel's trained and qualified staff to determine the client's wishes, if possible, and to assess the client's well-being. It is important for counsel or counsel's staff to observe the child, the child's interactions with others in the home or foster home, and to assess the severity of the injuries and the child's general health and condition. Children four years of age or old enough to communicate should be personally interviewed in private by counsel. Interviews of children should occur away from court.
5. Counsel should have contact with clients:
a. prior to court hearings and CRB reviews;
b. whenever notified that the child's placement is changed; or
c. when counsel is apprised of emergencies or significant events impacting the child.
6. For younger children, counsel, personally or through their staff, are encouraged to have regular face-to-face contact with the client in the child's home or foster home every three months or as needed. Older children should be contacted by phone, in their homes, at school or at the attorney's office with a similar frequency.
7. Counsel should confer with their clients as often as necessary after the initial interview to ascertain all relevant facts and otherwise necessary information. After counsel is fully informed on the facts and the law, counsel should advise the client concerning all aspects of the case.
STANDARD 3.6. Independent Investigation
Counsel should conduct a thorough, continuing and independent review and investigation of the case, including obtaining information, research and discovery in order to prepare the case for trial. Counsel should not rely solely on the report of the caseworker.
1. Counsel should, where appropriate, conduct an in-depth interview with the client covering:
a. the events giving rise to the allegations in the petition;
b. the existence of witnesses or other potential sources of information; and
c. information about the child's current placement, condition and needs.
2. Counsel should be familiar with, and where appropriate, obtain the assistance of, local juvenile and mental health experts who can provide attorneys with consultation, evaluation of their clients or other parties, including parent-child interaction assessments, and testimony on issues in the case.
3. Counsel should have potential witnesses, including adverse witnesses interviewed, and where appropriate subpoenaed by an investigator or other appropriately trained person. If counsel conducts a witness interview, counsel should do so in the presence of a third person who can be available to appear as a witness at trial. Potential witnesses may include:
a. school personnel;
e. foster parents and other caretakers;
f. mental health professionals;
g. physicians; and
h. law enforcement personnel.
4. Counsel should confer with the attorneys for the other parties, and request permission to interview their clients with them present. When possible, counsel should interview parents and children in their home. Where appropriate, counsel or counsel's trained and qualified staff should observe visitations between parent and child.
5. When necessary, counsel should conduct or participate in depositions of witnesses.
6. Counsel should obtain information from representatives of other agencies with whom the family has been involved, either through SOSCF referral or on the family's own initiative, such as:
a. Community Health Nurses;
b. school personnel;
c. homemaker services;
d. family counselors;
e. parenting instructors;
f. drug or alcohol counselors;
h. ministers, priests, church members, etc.;
i. baby-sitters; and
j. other persons who have had significant contact with the child or family and may have relevant information.
7. Counsel should comply with discovery statutes and use the same to obtain names and addresses of witnesses, witness statements, results of evaluations or other information relevant to the case. Counsel should obtain and examine all available discovery and other relevant information, including:
a. the petition and juvenile court legal and social files;
b. information that is obtained through requests for discovery;
c. information from the SOSCF caseworker and from reviewing agency records for information about:
i. services provided by the agency in the past;
ii. visitation arrangements;
iii. the plan for reunification; and
iv. current and planned services.
8. Counsel should obtain records concerning the family from other relevant sources such as:
b. hospitals and other medical records sources;
c. law enforcement agencies;
d. treatment agencies, including mental health and drug and alcohol treatment agencies; and
e. psychiatrists, psychologists, therapists and counselors.
9. Where the client's participation in psychiatric, medical or other diagnostic or treatment program is significant in obtaining the client's desired result, counsel should so advise client.
10. Counsel should research and review relevant statutes and case law to identify defenses and legal arguments to support the client's case.
STANDARD 3.7. Pretrial Motions
Counsel should research, prepare, file and argue appropriate pretrial motions or responses whenever there is reason to believe the client is entitled to relief. Counsel should file briefs or memoranda in support of such motions or responses.
1. Counsel should make appropriate pretrial motions including:
a. discovery motions;
b. motions for medical, psychological or psychiatric evaluation, parent-child interaction, developmental or neurological assessment;
c. motions challenging the constitutionality of statutes and practices;
d. motions to strike, dismiss or amend the petition;
e. motions for interpreters;
f. evidentiary motions and motions in limine; and
g. motions to consolidate.
2. Counsel should seek protective orders, make appropriate motions in limine and other evidentiary motions.
3. Counsel should make motions to meet the client's needs pending trial, including:
a. restraining orders;
b. orders for family reunification services;
c. orders for medical or mental health treatment;
d. orders for change of placement;
e. motions to increase, decrease or limit parental or sibling visitation;
f. motions seeking child support; and
g. motions seeking contempt for violations of court orders.
STANDARD 3.8. Negotiating A Settlement
Counsel should participate in settlement negotiations to seek expeditious resolution of the case and to obtain petition and disposition terms favorable to the client.
1. If the attorney concludes, after sufficient investigation, that the petition will probably be sustained, the attorney should so advise the client and request consent to discuss settlement of case. Counsel should seek petition terms that cast the client in the most favorable light.
2. Counsel should fully explain to the client the rights that would be waived by a decision to admit to jurisdiction, and keep the client fully informed of settlement negotiations. Counsel must convey to the client any offers made for settlement and the advantages and disadvantages of accepting the offers. Counsel may not accept any settlement without the client's authorization.
3. Counsel should be familiar with available mediation services and should consider whether the client's interests could best be served and whether the case could be more appropriately resolved by mediation or other settlement meetings.
4. Counsel should explain to the client the conditions and limits of the settlement, and the effect of the settlement on future actions such as criminal actions or termination of parental rights petitions.
STANDARD 3.9. Hearings
Counsel should be prepared before and during hearings to provide quality representation and advocacy for the client.
1. In most circumstances, counsel should have the client present at significant court hearings and reviews. However, in determining whether to have a child present at a hearing or review, counsel should carefully consider the impact of the hearing on the child. If a parent or child over twelve years of age is waiving their appearance, counsel should have them execute a written waiver. Counsel should prepare the client for their role in the hearing or review.
2. A decision to exclude a young child from a hearing or review is appropriate if the child does not want to attend, is too young to sit through the hearing, would be significantly traumatized by such attendance, or for other good reasons. Concerns about the child being exposed to some of the testimony can be addressed by having the child temporarily excluded from the courtroom.
3. Counsel should avoid unnecessarily requiring young children to testify in dependency adjudication, review or termination of parental rights hearings. If testimony is necessary, counsel should, where appropriate, agree to steps to reduce the trauma to the child, such as having the child testify in chambers.
4. In determining whether to have the child testify, the child's counsel should consider:
a. the child's need or desire to testify;
b. any likely repercussions of testifying;
c. whether the child is likely to be found competent to testify;
d. the necessity of the child's direct testimony;
e. the availability of other evidence which may substitute for the child's testimony; and
f. the child's developmental ability to testify and withstand cross-examination.
5. If the child is capable of considered judgment, counsel is bound by the client's decision concerning testifying.
6. Counsel should be familiar with current law and empirical knowledge about children's competency, memory and suggestibility as they relate to the child's competence to testify or the reliability of testimony or out-of-court statements.
7. Counsel for the child should prepare the child to testify including:
a. familiarizing the child with the courtroom and court procedures;
b. advising the child what to expect during direct and cross-examination;
c. ensuring that testifying will cause minimum harm to the child by:
i. seeking modification in the location of the testimony;
ii. limiting who will be present;
iii. restricting the manner and phrasing of questions posed to the child; and
iv. objecting to questions to the child that are not phrased in a syntactically and linguistically appropriate manner.
8. At the hearing counsel should be fully prepared by:
a. having all relevant materials available at the trial, including all pleadings, discovery and investigative reports, as well as, relevant statutes, caselaw, and the evidence code;
b. having marshaled facts and legal arguments to prove or disprove the allegations of the petition, assuring that there is factual support for each service element being sought.
c. having a draft or outline of:
i. opening and closing statements;
ii. direct and cross-examination plans for all witnesses;
iii. amendments to the petition to be requested to conform the petition to the findings; and
iv. findings of fact and conclusions of law to be requested at the conclusion of the hearing.
9. Counsel should make appropriate motions, present and cross examine witnesses, offer exhibits, and provide independent evidence as necessary. During all hearings counsel should preserve legal issues for appeal, as appropriate.
STANDARD 3.10. Disposition
Counsel should be prepared to present a disposition plan on behalf of the client, as well as to respond to inaccurate or unfavorable information presented by other parties, ensuring that all reasonably available mitigating and favorable information is presented to the court and obtaining all appropriate orders to protect the client's rights and interests.
1. Counsel should be prepared to participate fully in the dispositional hearing, which sets a course for the future of the case that will either result in reunification of the family or a severance of family ties. The attorney should counsel the client concerning the disposition prior to the hearing, including, explaining to the client the nature of the hearing, the issues involved, and the alternatives open to the court. Counsel should also explain fully the nature, obligations and consequences of any proposed dispositional plan.
2. Counsel should investigate all sources of evidence that will be presented at the hearing and interview material witnesses. Counsel also has an independent duty to investigate the client's circumstances, including such factors as previous history, family relations, economic condition and any other information relevant to disposition.
3. When the court has found evidence sufficient to support jurisdiction, counsel should, when appropriate, ask the court not to exercise jurisdiction and move to dismiss the petition on the ground that jurisdiction is not in the best interests of the child because the child and family do not require supervision, treatment or placement.
4. Counsel should advocate the least restrictive disposition possible which can be supported and is consistent with the client's needs and desires. Although a child's position may overlap with the position of one or both parents, third-party caretakers, or SOSCF, the child's counsel should be prepared to participate fully in any proceedings and not merely defer to the other parties. Any identity of position should be based on the merits of the position, and not be a mere endorsement of another party's position.
5. Counsel for the child should ensure that the court recognizes the need to speedily promote permanency for the child.
6. Counsel should, where appropriate, examine fully any witness whose evidence is damaging to the client's interests and challenge the accuracy, credibility and weight of any reports or other evidence before the court.
7. Counsel should be prepared to present a disposition plan that will achieve the client's desired ends. Counsel should be familiar with the dispositional alternatives available to the court and the various agencies that serve children and families that can provide placements, treatment, and other dispositional services and should fully discuss dispositional options, consequences and procedures with the client.
8. Counsel should secure the assistance of psychiatric, psychological, medical or other experts needed for purposes of evaluation, consultation or testimony about the dispositional plan. Counsel should obtain reports or subpoena evaluators or other expert witnesses to testify. Counsel should prepare the client for any evaluation by explaining the nature of the procedure and encouraging the client's cooperation.
9. Counsel should obtain the written Reports of the Juvenile Department, SOSCF, and the CASA sufficiently in advance of the dispositional hearing to prepare a response. Counsel should consider submitting a written dispositional report on behalf of the client to set out the client's plan and to counter information provided in other reports received by the court.
10. At the hearing, counsel should, where appropriate:
a. request orders that benefit the client;
b. be prepared to present evidence on the reasonableness or unreasonableness of SOSCF's efforts and alternative efforts that could have been made;
c. request that a "no reasonable efforts" finding be made by the Court;
d. request an order specifying what future services will make the changes in the family needed to correct the problems necessitating intervention and constituting "reasonable efforts" by SOSCF;
e. request orders for services or service agreements that include:
i. family preservation services;
ii. medical and mental health care;
iii. drug and alcohol treatment;
iv. parenting education;
vi. recreational or social services;
vii. domestic violence counseling;
viii. anger management counseling;
ix. independent living services; and
x. other individualized services.
11. Counsel should assure that the order includes a description of actions to be taken by parents to correct the identified problems. Counsel should request that the Court include in its order a timetable for accomplishing the changes required. Counsel should, where appropriate, seek Court approval of a written service agreement prepared by Counsel or SOSCF.
12. Counsel should also request specific visitation orders covering visitation between child and parent, between siblings and between the child and other significant persons.
13. Counsel should, where appropriate, request that the Court appoint counsel, a Court Appointed Special Advocate (CASA) or an educational advocate (Surrogate Parent) for the child. Where appropriate counsel should seek child support orders.
14. Counsel should seek to ensure continued representation of the client at all further hearings and reviews. Counsel should request that the Court set the next date for the case to be reviewed.
15. Counsel should assure that the client is informed of and understands the nature, obligations and consequences of the dispositional decision, and the need for the client to cooperate with the dispositional orders. Counsel should also explain the client's rights and possibilities of post-trial motions to reconsider, set aside, modify or review the disposition, as well as the right to appeal. Counsel should explain the consequences of violating the dispositional order and the continuing jurisdiction of the court.
STANDARD 3.11. Post-disposition
The lawyer's responsibility to the client does not end with dismissal of the petition or entry of a final dispositional order. Counsel should be prepared to counsel the client and provide or assist the client to secure appropriate legal services in matters arising from the original proceeding.
1. Counsel should counsel the client and file any post-disposition motion or appeal that is needed.
2. Counsel should review the court's order to insure that it conforms with the findings and disposition.
3. Counsel should file, litigate or respond to any motions to reconsider, set aside, or modify the jurisdictional finding or disposition, as well as any appeals of referees' orders. Counsel should, as directed by the client, also file notice of appeal and either provide representation on appeal or assist the client in referral to other appellate counsel. Counsel should participate in an appeal filed by another party or assist the client in referral to other appellate counsel.
4. Counsel should monitor implementation of the caseplan and progress in the case, requesting additional services, seeking review or other relief, such as contempt, as appropriate. Counsel should be familiar with the procedures available to the client after disposition.
5. Counsel should monitor the case plan for implementation and maintain contact with both the client and the agency or institution involved in the disposition plan in order to ensure that the client's rights are respected and where necessary, to counsel the client concerning the dispositional plan.
6. Counsel should confer periodically with their client and the caseworker to review the service plan and service agreement, the extent of compliance with the plan by both the agency and the client, and the continued appropriateness of the plan. Where needed, counsel should request additional services for the client or family.
7. In monitoring the provision of dispositional services, counsel should request a review or permanent planning hearing if necessary to protect the client's interests. Counsel should investigate and prepare for review or permanent planning hearings as for adjudicatory hearings to the extent that is necessary. See Standards 3.6 and 3.9, supra.
8. Counsel for the child should file a petition for termination of parental rights when necessary or advocate for the district attorney or attorney general to do so.
9. When the representation ends, counsel should explain why the representation is ending and how the client can obtain assistance in the future should it become necessary.
STANDARD 3.12. Review Permanent Planning And Termination Of Parental Rights Hearings
Counsel's role is most critical at the review, permanent planning and termination of parental rights hearings, where decisions of whether the family will be reunited or permanently severed are made. Counsel should be fully prepared to represent the client at all reviews and must provide the most zealous and meticulous representation at the termination of parental rights stage of the proceedings.
1. State and federal law requires that review hearings or CRB reviews occur at regular intervals. Clients are also entitled to request reviews, to assist them in moving the case along or addressing problems with the caseworker or caseplan. Counsel should seek a review to request return of the child when any event happens that may significantly affect the need for continued placement. Counsel should also request a review when court intervention is necessary to resolve a dispute over such matters as visitation, placement or services.
2. Whether a review is periodic or at the request of one of the parties, counsel should conduct appropriate investigation to prepare for the review, which may include:
a. reviewing the SOSCF file and the report prepared for the review and obtaining all relevant discovery;
b. interviewing the caseworker to determine his or her assessment of the case, the case-plan, the child's placement and progress, and the parent's cooperation and progress;
c. contacting other agencies and professionals who are providing services to the child or parents;
d. interviewing other potential witness, which may include relatives, neighbors, school personnel and foster parents;
e. seeking evaluation of the client or other parties; and
f. subpoenaing needed witnesses.
3. At all review hearings and CRB reviews counsel should be prepared to present information on what the long-term plan for the child should be and whether SOSCF and the parents are taking the necessary steps to achieve the chosen plan in a timely fashion. Counsel should consider submitting a written report on behalf of the client. Counsel should specifically address:
a. whether there is a need for continued placement of the child;
b. reasons the child can or cannot presently be protected from the identified problems in the home even if services are provided;
c. whether SOSCF is making reasonable efforts to rehabilitate the family and eliminate the need for placement of the child;
d. why services have not been successful to date;
e. whether the court-approved plan for the child remains the best plan;
f. whether the caseplan or service agreement need to be clarified or modified;
g. the appropriateness of the child's placement; and
h. whether visitation or other orders should be made or modified.
4. At all review hearings, CRB reviews and permanent planning hearings, counsel should request specific findings and orders that advance the client's case. Where appropriate, counsel should ensure that parents receive a clear and authoritative statement of what is expected of them, the time they have, the possibility of return of the child if sufficient progress is made, and the risk of termination if not. Counsel should ask the Court to set the time frame for the next hearing, if needed.
5. Permanent planning hearings require the same preparation as other reviews, but counsel should, in addition, be prepared to address what the long-term plan for the child should be, including:
a. a specific date on which the child is to be returned home, or
b. a date on which the child will be placed in an alternative permanent placement;
c. whether the child will remain in foster care on a permanent or long-term basis, and
d. whether foster care will be extended for a specific time, with a continued goal of family reunification.
6. Counsel for the child should consider whether to file a termination petition on behalf of the child, or to join the state in prosecuting such a petition or the parent in defending such a petition. Because termination of parental rights is a drastic and permanent deprivation of the fundamental right of family membership, and only the death penalty is a more severe intrusion into personal liberty, counsel should be zealous and meticulous in investigating and preparing for termination of parental rights hearings. Counsel should prepare for and try termination of parental rights hearings as for adjudicatory hearings. See Standards 3.6, 3.7, 3.8, 3.9 and 3.11 supra. In addition, counsel should:
a. thoroughly review the record of the case, carefully analyzing court orders and CRB findings and recommendations;
b. completely investigate the case especially issues unique to termination, such as the adoptability of the child and the child's ability to bond to new caretakers;
c. prepare a detailed chronology of the case to use in case presentation and in developing a theory and strategy for the case;
d. research termination statutes and case law with particular attention to constitutional issues and prepare trial memoranda if necessary;
e. obtain and review records to be submitted to the court and prepare objections or responses to objections to these documents;
f. subpoena and carefully prepare witnesses;
g. be aware of the heightened standard of proof in termination cases-clear and convincing evidence for most cases and beyond a reasonable doubt in cases covered by the Indian Child Welfare Act;
h. be prepared to present evidence of or address SOSCF's failure to adequately assist parents.
CHAPTER 4. SPECIFIC STANDARDS FOR REPRESENTATION IN CIVIL COMMITMENT
This chapter pertains to cases of involuntary commitment of the mentally ill. Under Oregon law, a mentally ill person is a person who, because of a mental disorder, is either dangerous to self or others or unable to provide for basic personal needs and is not receiving such care as is necessary for health or safety. The types of cases referred to in this chapter as "commitment proceedings" include initial commitment, re-commitment, conditional release, trial visit revocation, outpatient commitment, and "diversion" (a 14 day period of intensive treatment). Because it is generic, the term "commitment client" is used in this chapter in lieu of the term "allegedly mentally ill person."
Not addressed in this chapter are any specific standards that may apply to civil commitment of the mentally retarded. Nonetheless, counsel will find this chapter useful in cases involving involuntary commitment of the mentally retarded.
STANDARD 4.1. Prerequisites For Representation
In addition to being proficient in substantive and procedural law, counsel should possess knowledge, skill, training and experience commensurate with the nature of the allegations and the complexity of the case.
1. At a minimum, counsel should meet the requirements of the Qualification Standards for Court Appointed Counsel to Represent Indigent Persons at State Expense, Oregon Judicial Department (1990), Standard 3.1 F.
2. Counsel should have basic knowledge of the classification of mental disorders (Diagnostic and Statistical Manual of Mental Disorders [Fourth Edition Revised]) and the ability to read and understand medical terminology related to mental disorders and the treatment of the mentally ill.
3. Counsel should be familiar with the medications used to treat mental disorders and, in particular, the effects of those medications on the client's participation.
4. Counsel should be aware of how a particular mental disorder will affect attorney/client communications. Counsel should recognize communications may require special efforts on the part of counsel.
5. Counsel should have familiarity with mental health resources and other resources available in the community that will provide an alternative to involuntary hospitalization.
6. Counsel should be familiar with the facilities, both inpatient and outpatient, that provide services to the mentally ill.
7. Counsel should frequently represent clients in commitment proceedings. If counsel is not frequently before the court representing commitment clients, counsel should observe local court proceedings and/or consult with counsel experienced in local commitment proceedings. Counsel should be familiar with local court practices.
8. Counsel should avail oneself of any CLE's or specialized training to further educate counsel on substantive issues, substantive law, statutory law and procedures, local court rules, and local practices as they relate to commitment proceedings.
STANDARD 4.2. Counsel's Role
It is counsel's role to act as a zealous advocate for the client's ultimate goals and objectives in the commitment proceedings and to advise the client on how best to achieve them.
1. It is counsel's duty to ascertain the client's ultimate goals and objectives in the proceedings.
a. It is the unusual circumstance where the client cannot express the ultimate goal, i.e., "I want out of this hospital, jail, custody situation." Counsel should nearly always be able to ascertain if the client's desire is "liberty". If the client desires liberty, then counsel should work to achieve liberty.
b. Counsel should assume the role of advocate for the client's rights and not attempt to take on an additional role. Counsel is not the judge, the consensus of the community, the client's family member, the prosecutor or the mental health provider.
c. In those rare instances when a client, because of mental status, cannot express his or her ultimate goals and objectives in the commitment proceedings, it is the role of counsel to protect the client's constitutional and statutory rights.
2. Counsel should advise the client of probable successes and consequences of adopting any posture in the proceedings.
3. Counsel should assess whether counsel has the requisite training, skill, knowledge and experience to represent a commitment client in other types of legal matters before undertaking representation in such matters.
4. If counsel represents the commitment client in other types of proceedings, such as guardianship, conservatorship, or criminal proceedings, counsel should assess how the client's participation and position in one proceeding may potentially affect the client's participation and position in other proceedings and advise the client accordingly. For example, if counsel represents a client in both a civil and criminal matter, it may potentially pose problems if counsel asserts a claim of mental disorder exculpating culpability in the criminal matter while on behalf of the same client counsel argues against a civil commitment because the client denies a mental disorder.
STANDARD 4.3. Initial Client Interview
Upon being retained or appointed by the court, counsel should conduct an initial interview with the client as soon as possible, in most cases within 24 hours, but in all cases prior to the hearing.
1. Counsel should ascertain where the client is located and visit personally. In many instances, the client will be detained in a hospital, jail, or locked care facility. In the remaining cases, the client will be located via the information contained in the citation or delivery warrant.
2. In the initial interview, counsel should:
a. clearly introduce herself to the client and make sure the client understands the role counsel plays in the civil commitment process and the difference between counsel's role and that of the state's attorney;
b. discuss the issue of client confidentiality and secure the client's oral and written permission to obtain access to relevant records;
c. explain the reason for the commitment proceedings and the possible results;
d. ascertain the client's desired resolution;
e. explain legal rights;
f. provide legal advice;
g. describe the likely course of events;
h. prepare the client for a mental status exam by examiners appointed to aid the judge; and
i. describe the burden of proof and the findings the court must make in order to further deprive the client of liberty.
3. When counsel has ascertained the client's ultimate goal, counsel should advise the client of the available options and the probable success and consequences of choosing a particular option. For example, if the client wants discharge but in counsel's estimation is likely to be more successful in presenting a conditional release, that alternative should be presented to the client. Counsel should follow the client's desires as to which option to pursue.
4. Counsel should inform the client of:
a. the right to a postponement and the likelihood of continued detention during the postponement;
b. the right to subpoena witnesses, including expert witnesses;
c. the right to subpoena any physician who is, or has been, treating the client at the client's request and counsel's statutory obligation to do so under ORS 426.075(4);
d. the right to assert applicable privileges regarding confidential communications with a psychologist, psychiatrist, caseworker, physician, social worker or others, and the likely results of waiver of that privilege;
e. the right to have the investigator personally present at the hearing as a prerequisite to admissibility of the investigator's report;
f. the right to object to the admissibility of hearsay in the investigator's report; and
g. the right to request a qualified examiner in addition to the one the Court is required to appoint.
7. If the proceedings are for a violation of trial visit or a violation of conditional release, counsel should describe the proceeding, the standard of proof required, the allegations before the Court, and advise the client of the consequences of a revocation.
8. If the proceeding is a re-commitment proceeding, counsel should inform the client of the right to protest re-commitment and require an independent medical examination.
9. If the client is detained because of a certificate for a 14 day period of intensive treatment, "diversion", counsel shall meet with the client and review the certificate within 24 hours of the filing of the certificate. Counsel shall inform the Court whether the client consents to or protests the certificate within one judicial day of the time the certificate is delivered to the Court. ORS 426.237(3)(c)
10. Counsel should inform the client in the applicable case of the fact that the Court may prohibit the client from possession of a firearm in the future.
11. Counsel should advise the client of the legal basis under which the Court will order:
c. conditional release;
d. revocation or modification of a trial visit;
e. outpatient commitment;
f. recommitment; and
g. the length of commitment.
STANDARD 4.4. Obligations Of Counsel Pre-hearing
Counsel should obtain documents filed in the case, review reports and records of relevance, prepare pre-trial motions and engage in negotiations at the client's direction.
1. Counsel should obtain and review where relevant the:
a. court file;
b. investigation report;
c. medical records;
d. police reports; and
e. evidence offered by opposing counsel.
2. Counsel should conduct interviews with relevant witnesses prior to the hearing.
3. Counsel should research, prepare, file and argue pre-trial motions to protect the client's statutory and constitutional rights:
a. counsel should review and challenge the substance and process of the initiation of the commitment proceedings:
i. counsel should ascertain if the notification of mental illness meets the statutory criteria for substance and process, including whether the notification is under oath, contains the factual basis for a commitment proceeding, meets the statutory requirements for a commitment proceeding, and comports with the timeliness provisions of the statute;
ii. counsel should review the notice and content of the investigator's report to see if they comport with the statutory requirements;
iii. counsel should review the notice and filing of medical records sought to be introduced; and
iv. counsel should review the basis for a warrant of detention and determine if the warrant is sufficient in its substance, execution and return.
b. counsel should challenge for bias the judge or mental health examiners, where appropriate.
c. counsel should be aware of the basis for and file a motion to seek release from custody in the form of a Petition for Writ of Habeas Corpus when appropriate.
d. counsel should be aware of the application of the rules of evidence in the commitment proceedings and litigate matters of admissibility of evidence by means of a motion in limine when appropriate.
e. counsel should make appropriate requests for extraordinary expenses for the services of experts when necessary.
4. Counsel should ascertain whether the client may achieve the ultimate goal without the necessity of a contested commitment hearing. If appropriate in furtherance of that goal, counsel should:
a. seek to negotiate a satisfactory outcome with opposing counsel;
b. approach the mental health investigator about a dismissal or less restrictive resolution without the necessity of a hearing;
c. prepare and present a conditional release alternative;
d. prepare and present a stipulation to the basis for a commitment to the court; and
e. determine if a postponement will assist in achieving the client's desired resolution. counsel should seek the postponement at the client's request.
STANDARD 4.5. Commitment Proceedings
Counsel should provide quality representation and advocacy for the client at commitment proceedings.
1. At a hearing, counsel should be prepared to:
a. raise procedural motions, including the exclusion of witnesses at the client's request;
b. assert privileges, including the physician/ patient, psychotherapist/patient, social worker/patient and other privileges;
c. protect against self-incrimination;
d. make an effective opening statement as to the client's ultimate goal and the facts that will be presented to support that goal;
e. cross-examine and present expert and lay witnesses;
f. present a plan for discharge;
g. present alternatives, including conditional release, voluntary commitment and outpatient commitment, where appropriate; and
h. present stipulations.
2. In closing, counsel should argue strict application of the burden of proof and the law.
3. At all times, counsel should endeavor to preserve the record for appeal.
STANDARD 4.6. Obligations Of Counsel Post-hearing
It is counsel's responsibility to represent or obtain representation for any residual legal matters relating to the case.
1. Counsel should take the necessary actions to effect an appeal at the client's request. Counsel should undertake to file a Notice of Appeal or assure that alternative counsel is appointed to perfect an appeal.
2. Counsel should assess any treatment issues that exist requiring legal intervention and, where appropriate, refer the client to the bar association, advocacy group, attorney general's office, legal aid, private counsel or other appropriate source.
3. Counsel should, where appropriate, inform the client of the existence of social services, such as housing and food available in the community, the existence and location of community mental health providers, and the existence of medical treatment available in the community upon discharge from a hospital.