ETHICAL GUIDELINES FOR REPRESENTING JUVENILES WITH MENTAL HEALTH ISSUES

Transcription

1 ETHICAL GUIDELINES FOR REPRESENTING JUVENILES WITH MENTAL HEALTH ISSUES LYNDA E. FROST, J.D., PH.D. Hogg Foundation for Mental Health The University of Texas at Austin P.O. Box 7998 Austin, Texas (512) State Bar of Texas SPECIAL EDUCATION ISSUES AND THE JUVENILE JUSTICE SYSTEM IN TEXAS June 25, 2010 Austin CHAPTER 12

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3 BIOGRAPHY LYNDA E. FROST, Ph.D., J.D. Associate Director for Mental Health Policy and Law Hogg Foundation for Mental Health University of Texas at Austin P.O. Box 7998 Austin, Texas (512) Lynda Frost serves as the Associate Director for Mental Health Policy and Law of the Hogg Foundation for Mental Health. Dr. Frost came to the Hogg Foundation from San Antonio, where she had her own law practice focusing on mediation, family law, and representation of special education students. At the Hogg Foundation, Dr. Frost directs major initiatives and grants programs, guides public policy research and analysis conducted by the Foundation, educates interested persons about current public mental health laws and policies, and consults with legislative groups, non-profit organizations, consumers, and family advocacy organizations on key public mental health policy issues. Dr. Frost previously held academic positions as an assistant professor at the University of Virginia Schools of Law and Medicine and as Director of the Forensic Training and Research Center at the Institute of Law, Psychiatry & Public Policy. Prior to that, Dr. Frost served as a visiting professor at the University of Richmond School of Law. She has published numerous articles and was the co-editor of The Evolution of Mental Health Law (2001), with Richard Bonnie. Dr. Frost received her Ph.D. in Educational Administration and J.D. from the University of Iowa.

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5 TABLE OF CONTENTS I. INTRODUCTION... 1 II. ASSESSING YOUR CLIENT S MENTAL HEALTH... 1 A. Interviews with Client... 1 B. Collateral Information Interview with Parent(s) or Guardian Review of School Records Interviews with Teachers and Other School Personnel Review of Medical and Mental Health Records... 4 III. AUGMENTING UNDERSTANDING AND DECISION-MAKING ABILITIES... 4 IV. COMPETENCE IN TEXAS CRIMINAL AND JUVENILE COURTS... 4 V. WHO DECIDES WHETHER TO RAISE THE ISSUE?... 5 VI. CAN A JUVENILE WAIVE THE RIGHT TO BE FIT TO PROCEED?... 7 VII. DOES IT MATTER IF A STRONG DEFENSE EXISTS?... 8 VIII. WHEN IS IT INEFFECTIVE ASSISTANCE OF COUNSEL NOT TO RAISE THE ISSUE?... 8 IX. WHAT SHOULD BE EXPLAINED TO THE CLIENT?... 8 X. CONCLUSION... 9 APPENDIX i

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7 ETHICAL GUIDELINES FOR REPRESENTING JUVENILES WITH MENTAL HEALTH ISSUES 1 I. INTRODUCTION Mental illness is rampant among the population of juvenile offenders. National experts estimate that over twenty-five percent of youth in the juvenile justice system have a serious mental health problem. 2 One respected study estimated that two thirds of males and almost three quarters of females in juvenile detention had some kind of psychiatric disorder. 3 A recent threestate study that included Texas concluded that 67% of boys and 80% of girls in residential juvenile justice facilities have a diagnosable mental health disorder and 60% of youth had more than one diagnosis. 4 In Texas for fiscal year 2009, thirty-seven percent of the youth committed to the Texas Youth Commission were identified as having serious mental health problems. 5 Attorneys representing impaired juveniles face complex ethical issues that are only partially addressed by current law and ethical guidelines. II. ASSESSING YOUR CLIENT S MENTAL HEALTH Very few defense attorneys have formal training in the diagnosis of mental health disorders. Nonetheless, in order to proceed with the legal case, they are called upon to gauge whether mental health issues might be affecting their client s ability to participate in the adjudicative process. There are 1 These materials have been adapted from Lynda E. Frost & Adrienne E. Volenik, The Ethical Perils of Representing the Juvenile Defendant Who May Be Incompetent, 14 WASH. U. J.L. & POL Y 327 (2004) and are reprinted with permission from the Washington University Journal of Law and Policy. Many thanks to Casandra Cascos, J.D., for her assistance in editing this document. 2 Joseph J. Cocozza & Kathleen Skowyra, Youth with Mental Health Disorders: Issues and Emerging Responses, 7(1) JUV. JUST. 3, 6 (2000); Jennie L. Shufelt & Joseph J. Cocozza, Youth with Mental Health Disorders in the Juvenile Justice System: Results from a Multi-State Prevalence Study. Delmar, NY: National Center for Mental Health and Juvenile Justice (2006). 3 Linda A. Teplin et al, Psychiatric Disorders in Youth in Juvenile Detention, 59 ARCHIVES GEN. PSYCH PSYCHIATRY 1133 (2002). 4 Shufelt & Cocozza, supra note 2 at 4. 5 TEXAS YOUTH COMMISSION, Who are TYC Offenders?, at (last modified Nov. 18, 2009). 1 several means for the attorney to gain relevant information. A. Interviews with Client An attorney will have a number of means to gather data that could raise a question about the juvenile client s mental capacity. Perhaps the most crucial means is the initial interview, which can trigger a more thorough investigation into the client s current mental state. Identifying a child client s mental state may seem like a simple task, but it is actually quite complex. First, the dynamic of the interview may inhibit recognizing indicia of impairment. For example, lawyers may accept a different level of responsiveness from child clients than they would from adult clients. As a result, lawyers may interpret the reluctance of a child client to speak to them as a normal reaction of a child to an adult stranger in a position of authority, rather than as the child s failure to understand the question. Thus, attorneys may be more willing to resort to leading questions when interviewing a child client than they would be when interviewing an adult. While attorneys are taught the importance of avoiding leading questions when interviewing clients, 6 they may, nonetheless, resort to them when dealing with a child who replies to inquiries with only monosyllabic answers or shakes of the head. Those leading questions may not only suggest to the child the answers the attorney wants, but also may form in the mind of the attorney the perception that the child understands the question. These problems will be compounded if the child has mental retardation, which could heighten the child s tendency to agree with the attorney and avoid lengthy dialogue. 7 Interviewing difficulties may well be exacerbated if the child client is in detention. While developing rapport with a client is always important, it is particularly so with children who may not fully understand the attorney s role and how the attorney can be of assistance. As a result, attorneys may find that it takes longer to develop rapport with juvenile clients than it does with adult clients. 8 When an interview is 6 See, e.g., Robert M. Bastress & Joseph D. Harbaugh, Interviewing, Counseling, and Negotiating, in ANATOMY OF THE INITIAL CLIENT INTERVIEW 101 (1990). 7 See Richard J. Bonnie, The Competence of Criminal Defendants with Mental Retardation to Participate in Their Own Defense, 81 J. CRIM. L. & CRIMINOLOGY 419, (1990) (noting that with adult defendants, attorneys often do not recognize significant mental disorders that can impact competence). 8 See JAMES R. MORRISON & T.F. ANDERS, INTERVIEWING CHILDREN AND ADOLESCENTS 122 (1999).

8 conducted in a detention center, the setting may actually inhibit building rapport with the child and ultimately limit both how much information the attorney gets from the child client and how much information the attorney effectively conveys. Putting a child in detention at ease is difficult and an effective interview process is likely to require multiple visits. As a practical matter, attorneys who represent child clients may underestimate the time needed and fail to spend the time necessary to develop the rapport needed both to get untainted information and to convey information in such a way that the child understands and absorbs it. There are steps that attorneys can take to help prepare for interviews with child clients. The attorney must understand that competence is more likely to be an issue with child clients than it is with adult clients. Particularly when a client is young or carries a previous diagnosis, the attorney should consider carefully whether the juvenile is showing any signs of impaired competence. 9 Keeping this in mind, before meeting with the child client, the attorney representing a child may want to gather background information about the child s school and mental health history. When that is not possible, and most often it is not, the attorney should probe these areas during the first interview. 10 However, attorneys must keep in mind that clients may not always be accurate reporters of these issues. The attorney should conduct a second interview with her client at a later point in time to try to get a better sense of the youth s communication skills or deficits and ability to remember and understand information. The attorney should keep in mind that court involvement, particularly placement in detention, is unsettling and that interviewing a client in a foreign setting, such as detention, can inhibit the ability to establish rapport and, consequently, communication. Those factors could have a negative impact on how a client reacts to an initial conversation, but may have less influence in later interactions. Therefore, a second interview is a good opportunity to test whether the client remembers what was talked about during the first interview and whether she appears to understand concepts that they discussed. Testing the client s memory and understanding can give the attorney a sense of whether she should be concerned about the 9 THOMAS GRISSO, FORENSIC EVALUATION OF JUVENILES 88 (1998). 10 See Lynda E. Frost & Adrienne E. Volenik, The Ethical Perils of Representing the Juvenile Defendant Who May Be Incompetent, 14 WASH. U. J.L. & POL Y 327 app. at (2004) (listing questions an attorney may want to ask a juvenile client). 2 client s long and/or short term memory. Both can be relevant to the decision whether to raise the issue of competence. B. Collateral Information When the attorney suspects the client is impaired, there is additional information that she could, and should, gather before making any decisions about what steps to take next. Each of the following should be considered: 1. Interview with Parent(s) or Guardian The client s parent or legal guardian may be able to provide some or all of the information the attorney needs. The attorney should ask about the child s performance in school, including whether the child has ever received special education services. The parent or guardian may also be able to report if the child has emotional, behavioral, or adjustment problems at home or at school and possible causes for those problems. The attorney should consider asking the parent or guardian to authorize disclosure of the child s educational records and allow school personnel to talk with the attorney about the child s performance and adjustment. 11 In the interview with the parent or guardian, the attorney should also ask if the child has ever received mental health services and if the child is taking any prescription medications. If the guardian has told the attorney anything that suggests that relevant medical or mental health records exist, the attorney should also consider getting an authorization permitting disclosure of these records These records are protected from public scrutiny, however, a parent may grant access to them. See Family Educational Rights and Privacy Act, 20 U.S.C. 1232(g) (1994); 34 C.F.R (2002) (requiring that a parent or eligible student consent before an educational institution discloses certain information). State statutes may also protect these records from unauthorized disclosure. See, e.g., VA. CODE ANN (Michie 2007). 12 In the Health Insurance Portability and Accountability Act (HIPAA), federal law recognizes the use of such an authorization. Pub. L. No , 110 Stat (1996) (codified as amended in scattered sections of 29 U.S.C.). See also Security and Privacy Rules, 45 C.F.R (a)(1)(iv) (2003). There may, however, be exceptions in some states for certain mental health records, and federal law has more specific restrictions for records involving substance abuse treatment. See 42 C.F.R (2003).

9 2. Review of School Records School records often provide a wealth of information in detail that parents may not be able to provide. School records will indicate whether and why the child is receiving special education services. For example, the child might have a disability that would interfere with her ability to process information presented to her orally. 13 She might also have mental retardation that would interfere with her present ability to consult with her lawyer with a reasonable degree of rational understanding, and to have or develop a rational as well as factual understanding of the proceedings against her. 14 She may have Attention Deficit Hyperactivity Disorder (ADHD) 15 or an emotional problem that would make it difficult for her to work with her attorney or to understand and participate appropriately in legal proceedings. Special education records that might be particularly revealing are eligibility committee meeting minutes, evaluation reports complied as part of the eligibility process or as part of the triennial review process, and Individualized Education Programs (IEPs). 16 It is important to note that placement in regular rather than special education does not mean that the child does not have issues that interfere with her competence. Some children who would be eligible for special education services because of mental or emotional disabilities are overlooked because school systems fail to identify their disabilities or because they identify the existence of a disability, but conclude that it is not severe enough for the child to qualify for 13 A variety of learning disorders could negatively impact a juvenile s ability to work with the attorney. See AM. PSYCHIATRIC ASS N, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, (4th ed. 2000) (describing various learning disorders). 14 Dusky v. U.S., 362 U.S. 162 (1975). 15 ADHD is characterized by a persistent pattern of inattention and/or hyperactivity-impulsivity more frequent and more severe than behavior of peers at the same developmental level. AM. PSYCHIATRIC ASS N, supra note 12, at Some symptoms must be present prior to age seven and the consequential impairment in social, academic, or occupational functioning must be present in at least two settings and not be exclusively related to another mental disorder. Id. 16 The Individuals with Disabilities Education Improvement Act (IDEIA), 20 U.S.C (2004), requires schools to use a variety of assessment tools to gather information about a child who is suspected of having a disability that interferes with learning. The assessment results are used to determine eligibility for educational services and to create an individualized education program for the child. Id. 3 special education services. 17 Indicators in the records of children who are not receiving special education services include such things as referrals to child study committees for consideration of a possible disability, relatively regular disciplinary referrals, or comments about a child s social skills that suggest deficits in relationships with peers or adults. These indicators may be of even greater significance if they appear early and continue as the child ages. They may, for example, be signs that the child is experiencing emotional difficulties that have gone undiagnosed. They may even be indicators of undiagnosed learning disabilities that hamper information processing. 18 Such processing difficulties can lead to disaffection in the classroom if the child is unable to convey information or otherwise understand and participate fully in the educational process. Access to these records can be so important that, if a parent refuses to release them, the attorney should consider requesting a subpoena for them. Of course, access to the records alone may not be valuable unless the attorney develops skills to read and interpret educational data or has contacts who can explain this information Interviews with Teachers and Other School Personnel Because educational records are confidential, a teacher or other school employee may choose not to speak with an attorney representing a child who does not have parental authorization. Therefore, the attorney should seek such authorization. However, even without it, the attorney can talk to these individuals about their observations of a child. School personnel s personal observations are not included in the definition of educational records, 20 and such observations may provide the attorney with sufficient 17 Not every child with a disability will qualify for special education services. In addition to having a listed disability, the child must have shown a need for special education services. 20 U.S.C (3)(A)(ii) (2004). 18 See Richard E. Redding, Barriers to Meeting the Mental Health Needs of Offenders in the Juvenile Justice System, 1 JUV. CORRECTIONAL MENTAL HEALTH REP. 24, 26 (2001) (many juvenile offenders have undiagnosed or untreated learning disabilities). 19 Professors at colleges and universities are often willing to share time and expertise to explain educational or psychological tests results that are frequently included in these reports. The attorney seeking such assistance should get permission from the client and the client s parent or guardian to share the records with other professionals for consultation purposes U.S.C. 1232g (a)(4) (2004).

10 information to decide how to proceed. Because teachers, guidance counselors, and others may have useful information about how the child learns and what her interpersonal relationships are like, they may provide insight into her competence. In addition, such individuals may make knowledgeable witnesses if the lawyer decides to raise the question of competence. 4. Review of Medical and Mental Health Records Like educational records, medical and mental health records are confidential and protected by state and federal law. 21 The attorney generally will need written authorization or a court order to see them and should recognize that records addressing substance abuse treatment are covered by even more stringent privacy protections. 22 Medical records typically include health history, records of trauma, and could even include neurological evaluations if the parent had reported cognitive concerns. Mental health records include such things as social histories, psychological evaluations, and treatment and progress notes. 23 As with educational records, medical and mental health records can prove incredibly helpful to the attorney trying to understand the mental capabilities of an adolescent client, particularly given the higher than average rate of psychiatric disorders among juvenile offenders. 24 Further, these records can identify professionals who are familiar with the client and the client s mental health status, who may be able to provide useful information or who could be called as witnesses. III. AUGMENTING UNDERSTANDING AND DECISION-MAKING ABILITIES Lawyers play an important role in promoting their juvenile clients capacities. Prior to raising the issue of fitness before the court, the lawyer may try to raise the client s level of functioning so that the client falls 21 HIPAA, Pub. L. No , 110 Stat (1996) (codified as amended in scattered sections of 29 U.S.C.). Psychotherapy notes receive a higher level of protection under HIPAA than other protected health information. 45 C.F.R (a)(2) (2003). 22 See 42 U.S.C. 290dd-2 (2003); 42 C.F.R. Part See Adrienne Volenik et al., Everybody s Talking, Commonwealth Institute for Child and Family Studies, available at s_talking.pdf (2002). 24 Fran Lexcen & Richard E. Redding, Mental Health Needs of Juvenile Offenders, 3 JUV. CORRECTIONAL MENTAL HEALTH REP. 1 (2002) (providing an overview of significant disorders). 4 above the threshold level of competence. 25 To enhance the child s competence, the lawyer must maintain effective communication by explaining her role and ensuring that the child understands the proceedings. Emily Buss, an expert in legal ethics and the legal rights of children, provides several suggestions for attorneys representing juvenile clients. The attorney should use careful explanations during discussions with her client to facilitate her understanding. 26 By themselves, though, explanations are only mildly effective under most circumstances. Buss also recommends that the attorney work on relationship building with the client. 27 Maintaining a relationship with the child client, helping the child to understand that the attorney is truly on his side and representing his wishes can establish the framework for better communication and collaboration between the attorney and client. The attorney might also ask for the assistance of a parent or guardian who is familiar with the child s difficulties. 28 Parents or guardians can provide concrete information about how a child learns and relates best. These other individuals must be clear, though, that they are not the decision makers; they are merely helping the attorney to work better with the child. Using these techniques may enhance the client s level of functioning and help the lawyer recognize whether her client is unfit to proceed. IV. COMPETENCE IN TEXAS CRIMINAL AND JUVENILE COURTS When a juvenile client s mental impairment is significant, competence becomes an important legal issue. If the client s level of functioning falls below a certain threshold, the legal proceedings cannot continue. For decades, or even centuries, adjudicative competence has been an important prerequisite to a fair criminal court proceeding. U.S. Supreme Court cases have developed a standard for competence rooted in the principle that it would be fundamentally unfair to try a criminal defendant who had no understanding of why he was on trial and how the trial process worked MARTY BEYER ET AL., MORE THAN MEETS THE EYE: RETHINKING ASSESSMENT, COMPETENCY AND SENTENCING FOR A HARSHER ERA OF JUVENILE JUSTICE 36 (May 2002). 26 Emily Buss, The Role of Lawyers in Promoting Juveniles Competence as Defendants, in YOUTH ON TRIAL 243, (T. Grisso & R.G. Schwartz eds., 2000). 27 Id. 28 Beyer, supra note 39, at See Drope v. Missouri, 420 U.S. 162 (1975); Pate v. Robinson, 383 U.S. 375 (1966); Dusky v. United States, 362 U.S. 402 (1960).

11 To stand trial, a defendant must have sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and a rational as well as factual understanding of the proceedings against him, plus the capacity to assist in preparing his defense. 30 As a result, some criminal defendants with serious mental illnesses or mental retardation have been found to lack the capacity to proceed to trial. In criminal court in Texas, it is a violation of due process to put a defendant on trial while he or she is legally incompetent. 31 Competency procedures for juveniles in Texas criminal courts, which are beyond the scope of this paper are described in section 46B of the Code of Criminal Procedure. 32 Whereas the notion of competence in adult court has roots in English common law, concerns over adjudicative competence in juvenile court are much newer. 33 Originally juvenile court was designed to be rehabilitative, not punitive, and protections for juvenile defendants were viewed as unnecessary. Today, due process in juvenile court is similar to due process in criminal court, although it is not identical. 34 Under Texas law, children in the juvenile system may be unfit to proceed in juvenile court because of either a mental illness or mental retardation. A child... who as a result of mental illness or mental retardation lacks capacity to understand the proceedings in juvenile court or to assist in the child s own defense is unfit to proceed. 35 Such a child may not be subjected to discretionary transfer to criminal court, adjudication, disposition, or modification of disposition as long as such incapacity endures Dusky, 362 U.S. at 402; Drope, 420 U.S. at Pate, 383 U.S. at TEX. CRIM. PROC. CODE ANN. 46B (Vernon 2007). 33 Richard E. Redding & Lynda E. Frost, Adjudicative Competence in the Modern Juvenile Court, 9 VA. J. SOC. POL Y & L. 353 (2001). 34 In re Gault, 387 U.S. 1, (1967) (extending to juveniles rights of notice of charges, assistance of counsel, confrontation and cross-examination of witnesses, and privilege against self-incrimination); In re Winship, 397 U.S. 358, (1970) (establishing that guilt must be proved beyond a reasonable doubt in delinquency proceedings); McKeiver v. Pennsylvania, 403 U.S. 538 (1971) (no right to jury trial in delinquency proceedings); Breed v. Jones, 421 U.S. 519, 541 (1975) (double jeopardy clause applies to juveniles). 35 TEX. FAM. CODE ANN (a) (Vernon 2007). 36 Id. 5 The Texas Family Code details procedures around fitness to proceed in juvenile court. Any party may ask the court to determine whether probable cause exists to question a child s fitness. 37 If probable cause exists, the court will order an examination of the child by a forensically-trained clinician and, pending the result of the examination, schedule a fitness hearing. 38 At a separate hearing, the court (unless a jury is requested) will determine whether unfitness is proven by a preponderance of the evidence. 39 If the child is determined fit to proceed, the juvenile court will continue as if a question of fitness had not been raised; otherwise the court will stay the proceedings for as long as the child is incompetent. 40 A child found unfit to proceed will be placed in a facility or treated on an outpatient basis for an initial 90-day period. 41 V. WHO DECIDES WHETHER TO RAISE THE ISSUE? Case law and statutory schemes can play out in many different ways in juvenile delinquency cases. Juvenile defense attorneys are increasingly called upon to wrestle with complicated and conflicting ethical mandates. A logical and principled approach to the issues can help ensure a responsible and reasonable resolution to complex ethical questions. When should you question your juvenile client s fitness to proceed? The challenge facing any lawyer representing children is how to evaluate the applicability of the legal standard to individuals who have not yet fully developed physically, intellectually, and emotionally. This complex challenge requires the attorney to recognize indicia of incompetence in children, assess whether the issue should be raised before the trial court, and, when raising the question of competence, frame the inquiry in a concrete and constructive manner. According to Dr. Thomas Grisso, a psychologist and leading authority on juvenile competence, competence consideration should occur whenever a child: (1) is twelve or younger, (2) has been diagnosed or treated for a mental illness or mental retardation, (3) has a learning disability or a borderline level of intellectual functioning, or (4) exhibits behavior or responses that suggest deficits in memory, attention, or 37 Id , Id (a). 39 Id (b)-(d). 40 Id (e)-(f). If the child is unfit to proceed, pretrial proceedings that do not require the child s personal participation may move forward. Id (g). 41 Id

12 interpretation of reality. 42 One of the initial challenges for the attorney is to gather enough information to formulate a reasonable opinion on whether competence is an issue. In part, resolution of the ethical question of whether to question a client s competence rests on a clear understanding of who is the client and what is the extent of the client s authority. Since Gault, juveniles have had a right to an attorney. 43 The scholarly consensus is that an expressed interests standard frames the role of that attorney, who must seek to represent the client s wishes even if the attorney finds them imprudent. 44 Under the preambles of both the Texas Disciplinary Rules and the Model Rules, a lawyer must zealously assert her client s position. 45 A client s possible incompetence does not eliminate this duty: When a client s capacity to make adequately considered decisions... is diminished, whether because of minority, mental impairment or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client. 46 The attorney must also consider whether the decision to raise competence is a decision that rests with the client or with the attorney. 47 Rule 1.02 of the 42 Grisso, supra note 8, at 88. In criminal court, an ABA task force recommends an evaluation for all children under age 15. TASK FORCE ON YOUTH IN THE CRIMINAL JUSTICE SYSTEM, YOUTH IN THE CRIMINAL JUSTICE SYSTEM: GUIDELINES FOR POLICYMAKERS AND PRACTITIONERS 15 (2001). 43 In re Gault, 387 U.S. 1 (1967). 44 Kristin Henning, Loyalty, Paternalism, and Rights: Client Counseling Theory and the Role of Child s Counsel in Delinquency Cases, 81 NOTRE DAME L. REV. 245 (2005). In practice, many attorneys take a best interests approach to representing juveniles. See TEXAS APPLESEED, SELLING JUSTICE SHORT: JUVENILE INDIGENT DEFENSE IN TEXAS (October, 2000). 45 TEX. DISCIPLINARY RULES OF PROF L CONDUCT preamble para. 2 (1989) (reprinted in TEX. GOVT CODE ANN., tit. 2, subtit. G app. (Vernon Supp. 1995)(State Bar Rules art. X 9)); MODEL RULES OF PROF L CONDUCT preamble para. 2 (2004). 46 MODEL RULES OF PROF L CONDUCT R. 1.14; see also TEX. DISCIPLINARY RULES OF PROF L CONDUCT R. 1.03, cmt The same question occurs when deciding whether to raise an insanity defense, but the analysis differs in that in adult court and in some state courts, competence is a constitutionally required prerequisite to a fair judicial proceeding, whereas an insanity defense is a state-created doctrine. For an analysis of ethical issues in raising an insanity defense, see Christopher Slobogin & Amy Mashburn, The Criminal Defense Lawyer s Fiduciary Duty 6 Texas Disciplinary Rules of Professional Conduct states that a lawyer shall abide by a client s decisions concerning the objectives and general methods of representation... [and] may limit the... objectives and general methods of the representation if the client consents after consultation. 48 The client has the ultimate authority to determine the purposes to be served by the representation, and the lawyer is not required to employ a particular means to achieve those purposes. Nonetheless, both the Texas Rules and the Model Rules of Professional Conduct are the same in suggesting that the lawyer is to determine technical and tactical issues while deferring to the client s judgment on expense[s] to be incurred and concern for third persons who might be adversely affected. 49 Relying on this provision, the lawyer should consider whether raising competence is a legal tactic or a technical issue that is at the lawyer s discretion, or whether it is an objective of the representation, and thus the client s decision. Sometimes the parent of the child pays for the attorney s services. However, the attorney should not regard the parent who pays for the child s representation as the client. There must be no interference with the lawyer s independence of professional judgment or with the client-lawyer relationship. 50 Regardless of who pays the attorney s fees, the division of responsibilities between the attorney and the client should not change. Ultimately, the decision to ask for a competency evaluation implicates the attorney s ethical and legal responsibilities. According to the Texas Family Code, an attorney must consider evaluating a client s fitness when probable cause exists to believe that a child... is unfit to proceed as a result of mental illness or mental retardation. 51 The ABA Criminal Justice Mental Health Standards, 52 which address standards in criminal court, also provide guidance, stating, [d]efense counsel should move for evaluation of the to Clients with Mental Disability, 68 FORDHAM L. REV. 1581, 1618 (2000) (arguing that a better construct would be to view the lawyer of a mentally disabled client as having a fiduciary duty to the client, something between a best interest and a zealous advocate position). 48 TEX. DISCIPLINARY RULES OF PROF L CONDUCT R. 1.02(a)(1), (b). 49 Id. R. 1.02, cmt. 1; MODEL RULES OF PROF L CONDUCT R TEX. DISCIPLINARY RULES OF PROF L CONDUCT R. 1.08(e)(2); MODEL RULES OF PROF L CONDUCT R. 1.8(f)(2). 51 TEX. FAM. CODE ANN (b) (Vernon 2007). 52 These standards were developed with the adult defendant in mind.

13 defendant s competence to stand trial whenever the defense counsel has a good faith doubt as to the defendant s competence. 53 The ABA standard further states that the attorney may move for a competency evaluation over the client s objection, but should make known to the court and to the prosecutor those facts known to counsel which raise the good faith doubt of competence. 54 ABA commentary suggests that if a defense attorney thinks it would be better for an incompetent defendant facing minor charges to proceed to trial, the attorney s obligations as an officer of the court prevent the attorney from misleading the court by failing to present information that raises a good faith doubt about the client s competence. 55 That obligation may override the attorney s duty to zealously 56 represent the client. 57 The ABA standard suggests that an attorney may move for a competency evaluation over the client s objection and at a minimum should make known to the court and to the prosecution those facts known to counsel which raise a good faith doubt of competence. 58 If an attorney thinks it would be better for an incompetent defendant with minor charges to proceed, the attorney s obligations as an officer of the court prevent the attorney from misleading the court by failing to present the information to the court that raises the good faith doubt about the client s competency. 59 In raising the question of fitness to proceed, a lawyer may have to divulge information normally protected by the lawyer-client privilege in order to raise the issue. Texas Disciplinary Rule of Professional Conduct 1.05 prohibits lawyers from revealing information protected by the lawyer-client 53 ABA CRIMINAL JUSTICE MENTAL HEALTH STANDARDS 7-4.2(c) (1989) (emphasis added). 54 Id. (emphasis added). 55 Id cmt. 56 When acting as advocate, a lawyer zealously asserts the client s position under the rules of the adversary system. MODEL RULES OF PROF L CONDUCT preamble para. 2 (2004); TEX. DISCIPLINARY RULES OF PROF L CONDUCT preamble para. 2 (1989). 57 But see ABA CRIMINAL JUSTICE MENTAL HEALTH STANDARDS, supra note 53, cmt. (noting that some commentators who take the position that should is discretionary and who suggest that the failure to disclose possible incompetence is not equivalent to the attorney s obligation to disclose fraud). 58 Id (c). 59 Id cmt. 7 privilege or information gained in the professional relationship that the client has requested to be held inviolate because it would be embarrassing or detrimental to the client. 60 Nonetheless, many exceptions are made to the rule, and disclosure in this situation might be necessary to comply with the law. 61 For example, a lawyer may reveal privileged information in compliance with Rule 1.02(g) to seek orders to protect her client with a disability. 62 In addition, courts have ruled attorneys should reveal the information if the court needs it to assess the appropriateness of ordering a competency evaluation or to determine competence. 63 VI. CAN A JUVENILE WAIVE THE RIGHT TO BE FIT TO PROCEED? The U.S. Supreme Court has opined that it would be contradictory to allow an adult incompetent criminal defendant to waive the competency requirement because such a waiver could not be knowing or intelligent. 64 According to the Supreme Court in Pate v. Robinson, the defendant s constitutional due process right to a fair trial was abridged because he did not get a competence hearing. 65 Because the record was replete with evidence that raised the specter of incompetence, the Court ordered the defendant discharged unless he was retried within a reasonable time. The issue of waiver in juvenile court was not before the Supreme Court, but recommended standards and Texas law protect a child s right to counsel. Some commentators have argued that waiving a right to be 60 TEX. DISCIPLINARY RULES OF PROF L CONDUCT R. 1.05(a) (1989) (reprinted in TEX. GOVT CODE ANN., tit. 2, subtit. G app. (Vernon Supp. 1995)(State Bar Rules art. X 9)); see also MODEL RULES OF PROF L CONDUCT R. 1.6(a) (2004). 61 TEX. DISCIPLINARY RULES OF PROF L CONDUCT R. 1.05(c)(4) (permitting a lawyer to reveal information when she has reason to believe it is necessary to do so in order to comply with a court order, a Texas Disciplinary Rule of Professional Conduct, or other law ). Model Rule 1.6 is more restrictive, permitting a lawyer to reveal information only to prevent a criminal act that would result in imminent death or bodily harm or to establish a defense for the lawyers in legal controversies involving the client. MODEL RULES OF PROF L CONDUCT R. 1.6(b). 62 TEX. DISCIPLINARY RULES OF PROF L CONDUCT R. 1.02(g). 63 See Rodney J. Uphoff, The Role of the Criminal Defense Lawyer in Representing the Mentally Impaired Defendant: Zealous Advocate or Officer of the Court?, 1988 WIS. L. REV. 65, 109 n Pate v. Robinson, 383 U.S. 375, 384 (1966). 65 Id. at 385.

14 competent essentially waives the right to an attorney because an incompetent defendant cannot work effectively with his attorney. The Institute for Judicial Administration / American Bar Association Juvenile Justice Standards protect accused children in juvenile courts by prohibiting waiver of counsel by juveniles. 66 An ABA task force differed, but recommended that a child not be permitted to waive his right to counsel without consultation with a lawyer and without a full inquiry into the [child s] comprehension of the right and capacity to make the choice intelligently, voluntarily, and understandingly. If the right to counsel is voluntarily waived, standby counsel should always be appointed. 67 Texas follows the Juvenile Justice Standards; under the Family Code, a child may not waive her right to an attorney in a Chapter 55 proceeding. 68 VII. DOES IT MATTER IF A STRONG DEFENSE EXISTS? Even when the attorney believes that her client has a strong defense, the child s incompetence should be raised if it may be an issue. Fitness to proceed is not a strategic issue, but a fundamental requirement of a fair process. The likelihood of prevailing in a hearing does not affect the ethical obligation to raise the issue when the attorney feels there is probable cause to question the child s competence. VIII. WHEN IS IT INEFFECTIVE ASSISTANCE OF COUNSEL NOT TO RAISE THE ISSUE? A client may want to proceed to trial without a competency evaluation, despite indicia of incompetence. If the attorney fails to raise the issue of fitness to proceed and the impaired client is later found to have engaged in delinquent conduct, the attorney may be accused of ineffective assistance in a subsequent appeal. To prove ineffective assistance of counsel, the appellant must show that the attorney s performance fell below an objective standard of professional norm and that there is a reasonable probability that the poor performance changed the outcome of the proceeding IJA/ABA JUVENILE JUSTICE STANDARDS RELATING TO PRETRIAL COURT PROCEEDINGS Standard 6.1(a) (1979). 67 Robert E. Shepherd, Jr., Youth in the Criminal Justice System: An ABA Task Force Report, 16(1) CRIM. JUST. MAG. (2001) available at (last visited May 5, 2008). 68 TEX. FAM. CODE ANN (b)(5) (Vernon 2007). 69 Strickland v. Washington, 466 U.S. 668 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 8 Criminal court cases in Texas have raised the issue of ineffective assistance for failure to request a competency hearing, but these cases do not meet the high burden of proof. 70 The deficiencies of counsel must be documented in the record and, even in criminal court, in most cases the record is inadequately developed. 71 This problem of lack of documentation is even worse in juvenile court. Even if the appellant were able to prove the attorney s deficient performance, the second prong of Strickland would still require that the deficiencies affect the outcome of the proceeding. Because a finding of unfitness merely suspends the proceeding until the child becomes competent, 72 in most cases it should not change the outcome at all. In the minority of cases in which the child cannot be restored to competency, the prosecution cannot proceed and therefore there can be no disposition. IX. WHAT SHOULD BE EXPLAINED TO THE CLIENT? A lawyer must effectively communicate with the client to keep him reasonably informed and comply with any reasonable requests for information about the client s case. 73 Communication is complicated when the attorney fears it is not possible to adequately consult with a child who may lack the capacity to understand the competency issue because of mental retardation, mental illness, immaturity, or a combination of these factors. If the client has a disability, it may not be feasible for the lawyer to maintain a usual attorney-client relationship. However, if the client has a mental illness or is not legally competent, the lawyer must seek to maintain reasonable communication, insofar as possible. 74 The attorney should explain to the extent necessary to permit informed decisions by her client. 75 To accomplish this, the lawyer must, at a minimum, 1999). This constitutional standard applies in Texas juvenile courts. In re K.J.O., 27 S.W.3d 340 (Tex. App. Dallas 2000). 70 See, e.g., LaHood v. State, 171 S.W.3d 613 (Tex. App. Houston [14th Dist.] 2005); Brown v. State, 129 S.W.3d 762 (Tex. App. Houston [1st Dist.] 2004); Valderas v. State, 134 S.W.3d 330 (Tex. App. Amarillo Jackson v. State, 973 S.W.2d 954, 957 (Tex.Crim. App. 1998). 72 TEX. FAM. CODE ANN (f)(1) (Vernon 2007). 73 TEX. DISCIPLINARY RULES OF PROF L CONDUCT R. 1.03(a). 74 Id. 1.03, cmt Id. 103.(b); see also MODEL RULES OF PROF L CONDUCT R. 1.4(b).

15 explain to the client why she thinks competence should be raised, what will happen once the issue is raised, and what the possible outcomes are once the issue is raised. suggest that attorneys should consider adjudicative competence in far more instances than they currently do. X. CONCLUSION Juvenile delinquency court is often viewed as a training ground for lawyers who will move up to representing adult criminal defendants. In reality, good juvenile attorneys need all the skills good criminal defense lawyers need, and then some. The ethical dilemmas that arise in juvenile representation can be more complex than those when representing adults, because lawyers must be prepared to deal with issues that can exist solely because the defendant is a child and must address those issues in the face of evolving legal criteria. To address these dilemmas, particularly in a get tough on juvenile crime world, the attorney who represents children must develop some expertise in child development and be ready to present that knowledge to the court in an appropriate fashion during the course of the proceedings. Moreover, lawyers who want to help children in the delinquency system should incorporate special education advocacy into their delinquency practice. 76 However, our knowledge of child development is rapidly changing. We are on the cusp of major findings about adolescent brain development. Current research shows that adolescent brains go through dramatic changes, 77 but researchers are just beginning to decipher the impact of those changes on thoughts, actions, abilities, and decision-making. Similarly, we are just beginning to learn about adolescent competencies and how those competencies impact a youth s participation in the justice system. These studies 78 ultimately may have a tremendous impact on policy and on the operation of the juvenile court. In the interim, they can, and should, have great significance for how individual attorneys assess their client s capabilities, interact with their clients, and involve their clients in the important decisions that must be made in court proceedings. These research studies, along with legal and ethical considerations, 76 STATE JUSTICE INST. AND ABA CTR. ON CHILDREN AND THE LAW, A JUDGE S GUIDE TO IMPROVING LEGAL REPRESENTATION OF CHILDREN 50 (Kathi L. Grasso ed., 1998). 77 See Jay N. Gredd et al., Brain Development During Childhood and Adolescence: A Longitudinal MRI Study, 2(10) NATURE NEUROSCIENCE (1999). 78 Thomas Grisso et al., Juveniles Competence to Stand Trial: A Comparison of Adolescents and Adults Capacities as Trial Defendants, 27 L. & HUM. BEHAV. 333 (2003). 9

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17 APPENDIX This checklist was originally published as an appendix to the following article: Lynda E. Frost & Adrienne E. Volenik, The Ethical Perils of Representing the Juvenile Defendant Who May Be Incompetent, 14 WASH. U. J.L. & POL Y 327, (2004), and is reprinted with permission of the Washington University Journal of Law and Policy. This checklist of questions is designed to elicit information that may be relevant to an attorney s assessment of a juvenile client s competence. The questions are organized by area of inquiry. As is the case with most interviews, questions should be kept open-ended so as not to suggest answers. In addition, the accuracy of all information the attorney receives from the client should be checked against other sources. Keep in mind that children with disabilities that may impair competence may be poor information reporters. Also keep in mind that this is not an outline for a complete interview it merely suggests questions that may lead to information relevant to the competence issue. Age 1. How old are you? 2. When is your birthday? Year? (The inability of a youth to provide a birth year is a serious red flag, suggesting either developmental immaturity or mental retardation, either of which could impact competence.) School Placement and Success 1. What school do you go to? 2. What grade are you in? (Is this an appropriate grade for a person of the client s age? If not, the attorney should try to determine the reason for the discrepancy.) 3. What subjects are you studying? (Are these courses age appropriate? Do the courses suggest placement in special education classes?) 4. Who are your teachers? (Youth in self-contained special education classrooms may have fewer teachers) 5. How many days of school do you typically miss in a week? Month? Semester? Reasons?(When children reach middle school and high school, truancy patterns may become more common among children who are not successful in school. Lack of success may arise from disabilities such as mental retardation or other disabilities that impact how the youth processes information, which could affect competence.) Health 1. Who are your doctors? (Are there any mental health providers in the group?) 2. How often do you see the doctor? Why? (Are there any mental health issues involved that may be relevant to competence? Certain physical impairments may also affect competence.) 3. Have you ever talked to a therapist or psychologist? Why? (Again, probing for mental health issues relevant to competence.) 4. Have you ever been in the hospital? Why? (Are there any placements for mental health issues? For serious trauma?) 5. Are you taking any medicines? What? (Certain medications address mental health issues. Others may impair mental functioning.) 6. What do you take the medicine for? (Does the youth have an understanding what the underlying issues are?) 7. How do the medicines make you feel? Better? Worse? Side-effects? (Are the medications impairing functioning in any ways relevant to competence?) 8. How often do you take the medicine? (Sometimes youth fail to take medications regularly.) 9. Do you ever use alcohol? Other illegal drugs? Which ones? (Use may impair cognitive process and may also be a sign of self-medicating for mental health conditions such as depression or post traumatic stress syndrome.) 10. How often do you drink? Use drugs? 11. How much do you use at a time? 12. How recently did you last use? (Very recent use could affect the youth s understanding at the time of the interview.) 11

18 Past Record 1. Have you ever been to juvenile court before? (Previous experience with the court may mean the client has experience that might help him or her understand the process quicker than would a client who is new to the system. If a youth with previous experience shows poor understanding, the attorney may have concerns about competence. 2. What brought you before the court before? (Truancy referrals may raise concerns about school success see questions above.) 3. What happened when you went to court before? (This is an opportunity to probe the youth s understanding of how the court process works.) 4. What judge was involved? (Because of the judge s pivotal role, juveniles often remember the judge s name even when they have forgotten everyone else s. Good memory test!) 5. Did you have an attorney? If so, what did the attorney do to help you? (Does the youth seem to have a sense of what the role of the attorney is?) Current Court Involvement 1. Tell me about your current charge? (How does the youth s account match with the police report?) 2. When did this happen? (Young children and children with conditions such as mental retardation may have difficulty putting things in appropriate time sequences. They may also have trouble gauging the passage of time intervals such as a week or a month with any accuracy. Deficits in this area may seriously undermine the ability of a youth to assist counsel.) Recall/Memory Toward the end of an interview, it is often helpful to ask the client to remind you of some of the things you told her or him during the course of the interview and to ask her or him to explain to you some of the things you explained earlier. This gives an opportunity to observe both recall and comprehension. Areas that may be useful to discuss at this point may be: 1. Your name. 2. Your role as defense attorney. 3. The procedures that are typically followed in the court room. 4. The dispositions that the judge could impose at the end of the proceedings. 12