Ethics and the very best practice
For Florida Juvenile Defenders
August 2016
Agenda
Professional Responsibility
‒ Standards generate ideal advocacy
‒ Best Practices can help
‒ Model Rules guide us
‒ Case law can inform
What controls?
Rules
Standards
Case law
Or do they compliment each other?
Rules
ABA Model
Rules of
Professional
Conduct
Florida Rules
of
Professional
Conduct
AGENDA
‒ Competence
‒ Who can practice? UPL
‒
‒
‒
‒
Scope of Representation
Communication
Candor Toward Tribunal
Practical Applications
Competence of Child’s LAWYER
FL ST BAR RULE 4-1.1
A lawyer shall provide competent representation to a client.
Competent representation requires legal knowledge, skill,
thoroughness and preparation reasonably necessary for the
representation.
WHAT IS YOUR ROLE?
COUNSELOR /
ATTORNEY
We better THINK.
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Child’s Preferences
‒ Who decides what
motions to bring?
Whether to bring any?
‒ What about a parent who
wants case to be over?
‒ What about a parent who
overborns will of the
child to plea case without
motions?
WHAT IS A CHILDREN’S LAWYER?
‒ What is your role?
‒ What must you do?
‒ What are your ethical duties?
Answers influenced by the ABA Standards/Model Rules
UNAUTHORIZED PRACTICE OF LAW, FL
ST BAR RULE 4-5.5
‒ A lawyer shall not practice law in Florida in violation of
the regulation of the legal profession in Florida
‒ But a lawyer admitted in another state may provide legal
services on a temporary basis in Florida that:

are undertaken in association with a lawyer who is
admitted to practice in Florida and who actively
participates in the matter;

are in or related to a pending or potential proceeding
before a tribunal in this or another jurisdiction, if the lawyer
is authorized by law or order to appear in such
proceeding…

in an arbitration, mediation, or ADR program where no pro
hac vice admission is required…
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Benefits of WISE COUNSEL: Bar Rule 12
‒ EMERITUS ATTORNEYS PRO BONO PARTICIPATION
PROGRAM
‒ "emeritus attorney" = another state and in-house
‒ a certificate from a supervising legal aid organization
‒ a certificate from the highest court where licensed to
practice law
‒ a sworn statement to abide by the Florida Rules and will
not receive compensation for legal services authorized
under this rule.
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SCOPE!
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Obj and Scope = Effected by Competence
of client
‒ 4-1.2 (a) Lawyer to Abide By Client’s Decisions
‒ “a lawyer shall abide by a client’s decisions concerning the
objectives of the representation, and … reasonably
consult with the client as to the means by which they are
to be pursued.
‒ Subject to communication rules (1.4) “explain to allow
informed decisions)
‒ Subject to limited scope (below)
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Competence of Child Client - Florida
“When a client’s ability to make adequately considered
decisions in connection with the representation is
impaired, whether because of minority, mental
disability or for some other reason, the lawyer shall,
as far as reasonably possible, maintain a normal
lawyer-client relationship with the client.”
Comment
“Intermediate degrees of competence”
“Children a young as 5 or 6 … entitled to weight”
RULE 4-1.14 Rules Regulating the Florida Bar
Competence?
‒ Who decides who
brings a competence
motion?
‒ How is a lawyer
qualified to evaluate
competence?
‒ Doesn’t this bleed
into best interest
advocacy?
Great Rules – But no help
Limitation of Objectives of Representation 4-1.1 (c)
If not prohibited by law or rule, a lawyer and client may
agree to limit the objectives or scope of the representation
if the limitation is reasonable under the circumstances and
the client consents in writing after consultation. If the
attorney and client agree to limit the scope of the
representation, the lawyer shall advise the client regarding
applicability of the rule prohibiting communication with a
represented person.
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Lawyer’s Duties in Hearing
‒ Make motions and objections
‒ File Briefs
‒ Preserve issues for appeal
‒ Present evidence and witnesses

ABA Juvenile Justice Standards
Actions: Establish Trust
‒ Establish trust relationship
‒ Provide advice and counsel
‒ Advocate Zealously
“You can’t always get what
you want But if you try
sometimes, you just might
find, you get what you need.”
The Stones
Model Rules - Counselor
Rule 2.1 Advisor
‒ In representing a client, a lawyer shall exercise
independent professional judgment and render candid
advice. In rendering advice, a lawyer may refer not
only to law but to other considerations such as moral,
economic, social and political factors, that may be
relevant to the client's situation.
Professional Responsibility
Diligence
Counselor
Duty of Loyalty
Confidentiality
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Communication
and
Confidentiality
and
Candor Toward the Tribunal
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Florida Rules = Model Rules
Rule 1.4: Communication
(a) A lawyer shall:
(1) promptly inform the client of any decision or
circumstance with respect to which the client's informed
consent…is required…
(2) reasonably consult with the client about the means by
which the client's objectives are to be accomplished;
(3) keep the client reasonably informed about the
status…
Florida Rules = Model Rules
Rule 1.4: Communication (continued…)
(a) A lawyer shall:
(4) promptly comply with reasonable requests for
information; and
(5) consult with the client about …limitation … by the
Rules of Professional Conduct or other law.
(b) A lawyer shall explain a matter to the extent reasonably
necessary to permit the client to make informed decisions
regarding the representation.
Who’s decision is it whether or not to
plea?
ALWAYS THE CLIENT
But what about the parent/guardian?
What if parent objects?
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Advice v. Persuasion
Can we guide without influencing?
Should we influence?
Do we influence without knowing it?
Don’t we owe our client our judgment?
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Model Rules -= Florida Rule ALMOST
Rule 1.6: Confidentiality of Information
‒ (a) A lawyer shall/must (FL) not reveal information
relating to the representation of a client unless the
client gives informed consent
Client Confidentiality
‒ How does it differ from
an adult client
relationship?
‒ What if child shares
facts that make
motions untrue?
‒ What if child shares
facts that defeat the
motion?
Model Rules - Exceptions
Rule 1.6: Confidentiality of Information
‒ (b) A lawyer may reveal information … to the extent
the lawyer reasonably believes necessary:
(1) to prevent…death or substantial bodily harm;
(2) to prevent the client from committing a crime…
(3) to prevent, mitigate or rectify … injury …
(4) to secure legal advice about lawyer's compliance…
(5) to establish a …defense on behalf of the lawyer…
(6) to comply with other law or a court order.
Confidentiality of Information Rule 4-1.6
Not the MODEL
(a) Consent Required to Reveal Information.
A lawyer must not reveal information relating to representation of a
client except as stated in subdivisions (b), (c), and (d), unless the
client consents after disclosure to the client.
(b) When Lawyer Must Reveal Information.
A lawyer shall reveal such information to the extent the lawyer
reasonably believes necessary:
‒ (1) to prevent a client from committing a crime; or
‒ (2) to prevent a death or substantial bodily harm to another.
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(c) When Lawyer May Reveal Information.
A lawyer may reveal such information to the extent the lawyer reasonably
believes necessary:
(1) to serve the client's interest unless it is information the client specifically
requires not to be disclosed;
(2) …in a controversy between the lawyer and client;
(3) to establish a defense to a criminal charge/civil claim against the lawyer…
(4) to respond to allegations …concerning the lawyer's representation …
(5) to comply with the Rules of Professional Conduct…..
(6) Difference in employment …
(f) When disclosure is mandated or permitted, the lawyer shall disclose
no more information than is required to meet the requirements or
accomplish the purposes of this rule.
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(c) When Lawyer May Reveal Information.
A lawyer may reveal such information to the extent the lawyer
…reasonably believes
necessary…
How do you advise the client about that relationship?
Can you promise any confidentiality at all?
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Why is all this so
important?
What is effect of juvenile justice
case?
?
?
?
Child
Client
?
?
?
Consequences?
Jail
Records
(Schools
and jobs)
Immigration
?
Relationship
to
law
enforcement
College
financial aid
Housing
Good advocate considers the
whole child
Delinquency
Public
Benefits
Child
Protection
ChildClient
Special
Education
Housing
Expulsion
Just one more …
Model Rules - Pro Bono Publico
Rule 6.1 Voluntary Pro Bono Publico Service
‒ Every lawyer has a professional responsibility to provide
legal services to those unable to pay. A lawyer should
aspire to render at least (50) hours of pro bono publico
legal services per year.
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