The newsletter of the ISBA’s Standing Committee on Women and the Law
Best practices for private attorneys defending female juveniles, or, The top 10 tips for juvie attorneys
In 30-some words or less, could you explain the approach the attorney should take in representing a juvenile client? Francine T. Sherman, Director of the Juvenile Rights Advocacy Project at the Boston College of Law succinctly states the attitude one must adopt: “Focusing on the client, the pathway she takes into delinquency, and the full range of her legal needs humanizes delinquency so that the lawyer truly represents the client, and not just the case.” I hope the following will assist the private practitioner in achieving true success with the juvenile client, not just the juvenile case.
1. If you have never represented a juvenile, don’t even think about accepting a fee and opening a delinquency file without first referring to the Juvenile Defender Delinquency Notebook (which shall hereafter be referred to as “the Notebook”), published by the National Juvenile Defender Center (NJDC), to guide you! You won’t know what you’re getting yourself into until you do. The Notebook is a guide and does not provide specific state laws and statutes, but it will become your Number One resource for how to effectively represent juvenile clients. Representing kids in the juvenile justice system is what I would call “multidisciplinary” in nature, in that it involves accessing the mental, physical, and child welfare resources as well as legal advocacy in delinquency or criminal proceedings. Remember, you’re representing the client, not just the case. Contact the NJDC at 202-452-0010 or at http://www.njdc.info. I certainly wish I had this Notebook when I was an assistant public defender.
In the Notebook’s Preface, Patricia Puritz, Executive Director of the NJDC tells the reader to “please feel free to copy and distribute portions of the guide liberally” in hopes that it will have a positive impact on the defense of children in our country. To that end, I have taken her up on that offer throughout this article. Specific forms, publications, or documents cited may be found in their entirety in the Notebook or may be obtained by contacting me at email@example.com.
2. The juvenile client, particularly the female juvenile client, is a distinct species and must be represented by you as such. Her motives for committing crimes and obviously, her entire psychological makeup, is vastly different from that of the male juvenile. On October 4, 2007, this Committee devoted a full-day CLE to this very topic, entitled: “Justice for Girls: Delivered or Denied?” I was privileged to be one of the panelists presenting that day. Watch for my article summarizing the entire program in our next newsletter. Additionally, be sure to read the 2002 report, “Justice by Gender: The Lack of Appropriate Prevention, Diversion, and Treatment Alternatives for Girls in the Justice System.” You can obtain this report from the NJDC when you order the Notebook.
The organization, Physicians for Human Rights (PHR), provides a fact sheet citing resources the attorney may consult when representing juvenile girls. PHR reports: “Girls are the fastest growing population in the juvenile justice system, yet the system has failed to respond to the special needs of this vulnerable group. Girls of color are particularly impacted, disproportionately representing two-thirds of those incarcerated. Girls in the juvenile justice system experienced childhood victimization at much higher rates than boys. As a result, girls present with extremely high rates of serious mental health conditions, including post-traumatic stress, psychiatric disorders, attempts at self-harm, and suicide. There is dire need for the juvenile justice system to develop gender-specific practices that address the unique needs of girls and that protect their health and human rights.” Contact PHR at <www.physiciansforhumanrights.org> to obtain the fact sheet as well as the full text of the article, “Unique Needs of Girls in the Juvenile Justice System.”
3. Always remember Principle 2 of the Ten Core Principles for Providing Quality Delinquency Representation Through Indigent Defense Delivery Systems:
Representing children in delinquency proceedings is a complex specialty in the law and . . . is different from, but equally as important as, the legal representation of adults. (Italics added by this author)
4. The following from “An Overview of the Role of the Juvenile Defender” in Chapter One of the Notebook explains just how different that representation is and summarizes it in a nutshell:
Defenders who represent children in delinquency proceedings have tremendous opportunities to help young people and to practice in a complex and rapidly changing area of the law.
Because developing the best strategies for your client’s case requires attention to multiple considerations, as well as an interdisciplinary understanding of youth, you will use all of your legal ingenuity to defend against your client’s delinquency charges.
Additionally, you will need all of your interpersonal skills to be effective with your clients, theirparents, and other personnel involved in the juvenile justice system.
(Italics added by this author—See 5. below)
5. You, therefore, have a duty to:
Use Your Legal Ingenuity
Possess Interpersonal Skills and
Be Effective when dealing with your
Their Parents and
Other Personnel in the juvenile justice system.
To wit, you must not only be your client’s ardent defender, you must also be a social worker, psychologist, family therapist, referee, fashion consultant (tell her how to dress for court—no pierced belly buttons showing), etiquette coach, skilled communicator, and even sometimes the shoulder to cry on. If you cannot accept these responsibilities (only to a limited extent, though), maybe you should restrict your practice to adult clients.
6. Provided your client is not detained and you have an opportunity to meet with her and her parent/guardian before court, be sure to send your client and parent a copy of “A Guide to the Juvenile Delinquency Court in Illinois,” published by the ISBA. Request that they read the booklet prior to your initial consultation.
At the initial consultation, walk the client and her parents through “the Process.”
Carefully read and explain the Petition to Adjudicate and re-read the Guide with them. If this is the client’s first exposure to juvenile court, it is likely she and her parents will be like deer in the headlights when you begin to explain terms and procedures. You want them to feel as comfortable as possible and you need to reassure them that juvenile court is not something to fear. This exercise plants the seed of your relationship with your client and her parent(s).
If your client is, unfortunately, in detention when you conduct an initial consultation with her parent, contact the detention center to obtain a copy of its visitation policy. Reviewing the policy with the parent will be greatly appreciated, as it can lower their anxiety level before they visit with the child.
7. The success of your representation of the juvenile client depends upon your establishing a trusting, honest, relationship with her. How do you do that? Randy Hertz in his Trial Manual For Defense Attorneys in Juvenile Court says:
Show your client that you care about what she thinks and what happens to her.
Keep your client informed about developments in her case.
Let your client know of work you are doing on her behalf.
Answer your client’s questions plainly and clearly.
Be timely and responsive to all your client’s inquiries.
Keep your promises!
You must be forever mindful not to promise your client anything you are not completely and absolutely sure you can provide. Why? You risk losing her trust if you let her down and fail her. Good luck trying to defend a teenage girl who doesn’t trust you.
This is not to say that the points cited in 5. and 6. above are not germane to representation of the adult client; they simply must be applied differently to juveniles. For instance, you may need to answer questions plainly and clearly several times before your juvenile client understands. The biggest difference, however, between representing a juvenile and representing an adult is the parental factor, which leads us to 8.
8. Who’s paying your bill?
Interacting with your juvenile client’s parent or guardian is a complex matter that is unique to juvenile court. You may find yourself in what you feel is a conflicted position because the parent is paying your fees, but you must make it clear that you represent the child. At the same time, though, you need to cultivate the cooperation of the parent. I am of the opinion that this is the most difficult task of the juvenile defense attorney and must be approached with sensitivity. This is the point at which your expert interpersonal skills come into play.
Explain the Attorney/Client Privilege to your client and her parent. Be sure they communicate to you that they understand what that means.
It is crucial to tell the client that the parent can wait outside or come in for the interview process, if the client so chooses. You need to explain the concept of confidentiality in relationship to Attorney/Client Privilege. You can do that diplomatically and still get the message across to the parent that just because he/she is writing the check, the parent is not your client. The following is the approach my law partner, Richard Schmack, uses to explain this relationship to the client and parent when we sit across the table from them at the initial consultation:
Everyone needs to understand before we go any further that if we are retained to represent anyone in this case, it is your daughter. The Attorney/Client privilege will cover confidential communications with your daughter. Even though you are paying my fees for her representation, we cannot disclose any information to you unless requested to do so by her.
The factors listed below must be considered and are explained in detail on Pages 29 and 30 of the Notebook:
Ideally, the parent wants to be an ally, even if the parent may be the alleged victim or complainant. Regardless of the parent’s willingness to help, be clear about how the parent can be involved and how he/she cannot.
You need to be able to speak to your client alone so you can be sure she is not altering her words for the parent’s benefit. You may need to talk to the parent alone also so that you can collect information free from any distortions designed to influence your client.
When talking to parent and client together, disagreements may arise. Smoothing over minor problems on your own or with a professional social worker’s assistance will benefit your client and her case.
Let the parent know what impact his/her statements to the court or other personnel could have on your client‘s case. A parent who could be simply venting frustration to a judge may, in fact, be setting up the child for detention.
Finally, (and this is not from the Notebook—it’s all mine)
Never, ever tolerate your client speaking disrespectfully to a parent or vice versa.
I have told clients and their parents that I don’t care how they speak to each other at home, they will address each other with respect and courtesy when I am working with them. It’s amazing what impact that little speech has on many parent/child relationships. Most of the time, the parties are not even aware they are doing it.
9. Your relationship with your juvenile client does not terminate on the day the sentencing/disposition order is entered and the Engagement Letter you provide must reflect that. Chances are that your client could have at least one future Petition to Revoke Probation and/or one Detention Hearing. I will be happy to fax or e-mail the full text of the engagement letter I use to the reader upon request.
The difference between an adult and a juvenile engagement letter can be illustrated in the text below:
The purpose of this letter is to confirm that Schmack & Petruchius has agreed to represent you in the following matters: Juvenile Delinquency Petition to Adjudicate based upon felony criminal offenses upon receipt of a $1,500 flat fee. One half the fee is due before we can file an appearance on your behalf. The remaining $750 must be paid within forty-five (45) days of your arraignment or before the case is resolved, whichever occurs first. This flat fee includes representation for One (1) Post Disposition/Sentence Detention Hearing and/or a First Motion/Petition to Revoke Probation or Supervision.
The flat fee for any Motion/Petition to Revoke Probation or Supervision after the first one is $300 and includes One (1) Detention Hearing, if that detention hearing accompanies the Motion. Any Motions or Petitions after the first will require a new engagement letter. The fee must be paid in full prior to the first appearance on the new Petition or immediately at the conclusion of the Detention Hearing, whichever occurs first.
10. Familiarize yourself with the programs available and provided to your client. Having a good relationship with your client’s probation officer cannot be emphasized enough. He/she can be your client’s best ally or her worst enemy! Keep the lines of communication open, as that individual usually has access to a wealth of resources for your client, including counseling services, treatment providers, gender-specific programs, and residential placements.
Finally, I would like to stress that the attorney walks a fine line between defender and “best-interest advocate” when representing the juvenile client. What I mean is this: Once she becomes an adult criminal, more often than not, the client simply wants you to get the best deal on her behalf. With the juvenile, you at least have a decent shot at helping her get off that rocky road toward a life of crime and who knows what else.
I believe that if resources are available, you have a duty, at the very least, to explore those resources with your client, while maintaining your duty to defend her. If you can have a positive influence on her while being her zealous advocate, you are a success as a juvie attorney. In my opinion, if you have one client who becomes a productive member of society, it’s worth every minute you spent with her!