La. Admin. Code tit. 22 § XV-2119

Current through Register Vol. 50, No. 9, September 20, 2024

Section XV-2119 - Relations with Client

A. Counsel at all stages of the case should make every appropriate effort to establish a relationship of trust and confidence with the client, and should maintain close contact with the client. Representation of a child facing a sentence of life without parole in adult court should proceed in a trauma-informed and developmentally and age-appropriate manner with a strong emphasis on the relationship between the defense team and the client.

B. Counsel should make every appropriate effort to overcome barriers to communication and trust, including those arising from the child's special circumstances, such as age and its attendant circumstances, trauma, incompetence, mental or physical disability/illness, language barriers, cultural differences, circumstances of incarceration, prior experiences in the criminal justice system and prior experiences of legal representation. Where barriers to communication or trust with counsel cannot be adequately overcome to allow for high quality representation of the client, such further steps as are necessary should be taken. In an appropriate case, this may include seeking the assignment of additional counsel or other team members or the substitution of counsel.

C. Lead counsel should ensure that the defense team as a whole is able to establish and maintain a relationship of trust and confidence with the client. All members of the team should be trained on interviewing and communicating with child clients in a trauma-informed and developmentally and age-appropriate manner. Where a particular team member is unable to overcome barriers to communication or trust, lead counsel should take all reasonable steps to remedy the problem. Where the relationship cannot be sufficiently improved, lead counsel should strongly consider removing or replacing the team member.

D. Understanding that a relationship of trust and confidence with the client is essential to the provision of effective representation, the defense team must take all reasonable steps to ensure that both the representation provided and the manner in which that representation is provided operate to develop and preserve such a relationship.

E. Understanding that regular contact and meaningful communication are essential to the provision of effective representation of a child facing a possible sentence of life without parole, the defense team should take all reasonable steps to ensure that the client is able to communicate regularly with the defense team members in confidential circumstances and should ensure that the client is visited by defense team members frequently, particularly where the client is in custody. Counsel may rely upon other members of the defense team to provide some of the required contact with the client but visits by other team members cannot substitute for counsels own direct contact with the client. Given lead counsels particular responsibilities, visits by other counsel in the case cannot substitute for lead counsels own direct contact with the client.

F. In a trial level case, a JLWOP client should be visited by a member of the defense team no less than once every week, though visits would be expected to be much more frequent where there is active investigation or litigation in the case or in the lead up to trial. In a trial level case a JLWOP client should be visited by an attorney member of the defense team no less than once every two weeks and by lead counsel no less than once every month, though visits by counsel would be expected to be much more frequent where there is active investigation or litigation in the case or in the lead up to, during and following trial.

G. In an appellate or post-conviction case, a JLWOP client may be visited less frequently but regular communication and actual visits remain critical to effective representation.

H. Counsel at all stages of the case need to monitor the clients physical, mental and emotional condition and consider any potential legal consequences or adverse impact upon the adequate representation of the client. Counsel should monitor the clients physical, emotional and mental condition throughout the representation both personally, through the observations of other team members and experts and through review of relevant records. If counsel observes changes in the clients appearance or demeanor, counsel should promptly conduct an investigation of any circumstances contributing to this change and take all reasonable steps to advance the best interests of the client. Recognizing the potential adverse consequences for the representation inherent in any substantial impairment of the clients physical, mental and emotional condition, counsel should take all reasonable steps to improve the clients physical, mental and emotional condition where possible.

I. Counsel at all stages of the case should engage in a continuing interactive dialogue with the client concerning all matters that might reasonably be expected to have a material impact on the case, such as:

1. the progress of and prospects for the investigation and what assistance the client might provide;

2. current or potential legal issues;

3. current or potential strategic and tactical decisions, including the waiver of any rights or privileges held by the client;

4. the development of a defense theory;

5. presentation of the defense case;

6. potential agreed-upon dispositions of the case, including any possible disposition currently acceptable to the prosecution;

7. litigation deadlines and the projected schedule of case-related events; and

8. relevant aspects of the clients relationship with correctional, parole, or other governmental agents (e.g., prison medical providers or state psychiatrists).

J. Counsel shall inform the client of the status of the case at each step and shall provide information to the client regarding the process and procedures relevant to the case, including any anticipated time frame.

K. In the absence of a specific agreement to the contrary, counsel shall provide the client with a copy of each substantive document filed or entered in the case by the court and any party. Counsel shall warn any incarcerated client of the dangers of keeping case related material in a custodial environment and take steps to ensure that the client may have reasonable access to the documents and materials in the case without the necessity of keeping the documents in the prison.

L. Upon disposition of the case or any significant issue in the case, counsel shall promptly and accurately inform the client of the disposition.

M. Counsel shall respond in a timely manner to all correspondence from a client, unless the correspondence is wholly unreasonable in its volume or interval.

N. Counsel should maintain an appropriate, professional office and should maintain a system for receiving regular collect telephone calls from incarcerated clients. Counsel should provide incarcerated clients with directions on how to contact the office via collect telephone calls (e.g. what days and/or hours calls will be accepted). Counsel should determine whether telephone communications will be confidential and where they are not, should take all reasonable steps to ensure that privileged, confidential or potentially damaging conversations are not conducted during any monitored or recorded calls.

O. Counsel should advise the client at the outset of the representation and frequently remind the client regarding his rights to silence and to counsel. Counsel should take special care to ensure such crucial information is communicated in a trauma-informed and age appropriate manner.

1. Counsel should carefully explain the significance of remaining silent, and how to assert the rights to silence and to counsel. Counsel should specifically advise the client to assert his rights to silence and to counsel if approached by any state actor seeking to question him about the charged offense, any other offense or any other matter relevant to guilt, penalty or a possible claim for relief. Counsel should take all reasonable steps to assist the client in asserting these rights, including providing a written assertion of rights for the client to use and asserting these rights on behalf of the client. Counsel should have regard to any special need or vulnerability of the client likely to impact his effective assertion of his rights. Counsel should especially consider the clients age, development and familiarity with the criminal justice system in considering how to support the client in effectively asserting his rights.

2. In particular, counsel should advise the client not to speak with police, probation officers, or other government agents about the offense, any related matters or any matter that may prove relevant in a sentencing hearing without the presence of counsel. The client should be advised not to speak or write to any other person, including family members, friends, or co-defendants, about any such matters. The client should also be advised not to speak to any state or court appointed expert without the opportunity for prior consultation with counsel.

3. Counsel should also be conscious of the possible interest of media organizations and individual journalists and should advise the client not to communicate with the media, except as a part of a considered strategy undertaken on the advice of counsel.

P. If counsel knows that the client will be coming into contact with a state actor in circumstances relevant to the representation, counsel should seek to accompany the client to prevent any potentially harmful statements from being made or alleged.

Q. Beginning at the outset and continuing throughout representation, counsel should endeavor to connect the client with all possible educational and programming opportunities whether the client is in or out of custody. Counsel should advise the client about the importance of good behavior during the pendency of his criminal matter and seek to find solutions to any impediment to the clients good behavior. Counsel should keep in mind that demonstrating a clients ability and potential to change, grow and be rehabilitated is central to a Miller sentencing hearing.

La. Admin. Code tit. 22, § XV-2119

Promulgated by the Office of the Governor, Public Defender Board, LR 431921 (10/1/2017).

AUTHORITY NOTE: Promulgated in accordance with R.S. 15:148.