Rule 5 - Appointment of Counsel(a)et seq. This right attaches no later than when the juvenile first appears before a magistrate or circuit judge. The attorney shall initially consult with the juvenile privately, outside of the presence of any parent or legal guardian. The attorney, whether court-appointed or privately retained, shall act solely as the counsel for the juvenile.(b) Appointment of Counsel.(1)Delinquency and Status Offenses. Except as otherwise specifically provided in this rule, in any proceeding in which the juvenile is charged with an offense, including any proceeding in which a juvenile is alleged to have violated the terms of probation for a prior offense or where a modification of a prior disposition is proposed, the court shall appoint counsel at public expense to represent the juvenile, if the juvenile cannot afford counsel and private counsel has not been retained to represent the juvenile.(2)Juvenile traffic Offenses and Other Offenses Heard in Magistrate Court. In any proceeding in which the juvenile is charged in magistrate court with a violation of a traffic law, as defined under West Virginia Code § 49-1-207, or with a violation of West Virginia Code § 60-6-9 or 11-16-19, or a violation of West Virginia Code, Chapter 20, the juvenile or the juvenile's parents or legal guardians may retain private counsel, but the juvenile does not have a right to appointment of public defender or other counsel at public expense.(3)Municipal Offenses. In any proceeding in which the juvenile is charged in municipal court with a municipal ordinance regulating traffic, enforcing a municipal curfew, or regulating or prohibiting public intoxication, drinking or possessing alcoholic liquor or beer in public places, or any other act prohibited by West Virginia Code §§ 60-6-9 and 11-16-19, the juvenile or the juvenile's parents or legal guardians may retain private counsel, but the juvenile does not have a right to appointment of a public defender or other counsel at public expense.(4)Appearance before a Grand Jury. A juvenile appearing before a grand jury as a witness shall be represented by an attorney at public expense if the juvenile cannot afford to retain private counsel and is not granted immunity for the juvenile's testimony.(c) Eligibility for Court-Appointed Counsel at Public Expense.When Parents or Juvenile Cannot Afford to Retain Counsel. A juvenile and a juvenile's parents or legal guardians are financially unable to obtain counsel if the juvenile is unable to obtain adequate representation without substantial hardship for the juvenile or the juvenile's family. The court shall inquire to determine the financial eligibility of a juvenile for the appointment of counsel, and such determination shall be made in accordance with West Virginia Code § 29-21-16.
When Parents Can Afford to Retain Counsel. If the parents or legal guardians of a juvenile can afford to retain counsel and have not retained counsel for the juvenile, and the juvenile cannot afford to retain counsel, the court may order the parents or legal guardians to provide, by paying for, legal representation for the juvenile in the proceedings. Such order may be entered only after giving the parents or legal guardians a reasonable opportunity to be heard. The court may disregard the assets of the juvenile's parents or guardians and appoint counsel for the juvenile, as provided in paragraph (1) above, if the court concludes, as a matter of law, that the juvenile and the parents or guardians have a conflict of interest that would adversely affect the juvenile's right to effective representation of counsel, or concludes, as a matter of law, that requiring the juvenile's parents or guardians to provide legal representation for the juvenile would otherwise jeopardize the best interests of the juvenile.
(d) Right of Parents to Counsel. The parents or legal guardians of a juvenile who is the subject of a juvenile proceeding have the right to retain their own counsel at their own expense, but such right does not create an entitlement on the part of the juvenile's parents or guardians to participate as full and separate parties in the juvenile proceeding.(e) Withdrawal of Counsel. A public defender or other appointed or retained lawyer cannot withdraw from a juvenile case until all proceedings have been completed, except upon written order of the court pursuant to a written motion, or upon written substitution of counsel approved by the court. A lawyer who wishes to withdraw from a case must file a written motion and serve it by mail or personal service upon the client and upon the prosecuting attorney; and the lawyer shall have the matter heard by the court. If the court approves the withdrawal, it shall be effective when the order has been served on the client and the prosecuting attorney by mail or personal service and proof of such service has been filed with the court.(f) Joint Representation. When two or more juveniles are alleged to have participated in the same act or occurrence or in the same series of acts or occurrences constituting an offense or offenses and are represented by the same retained or assigned counsel or by retained or assigned counsel who are associated in the practice of law, the court shall personally advise each juvenile, and the juvenile's parents or legal guardians, of the right to effective assistance of counsel, including separate representation. Unless the court concludes, based upon specific findings set forth in the record, that there is good cause to believe that no conflict of interest is likely to arise, the court shall take such measures as may be appropriate to protect each juvenile's right to counsel, including appointment of separate counsel.(g) Guardian Ad Litem. A juvenile's parents or legal guardians are presumed to act in the juvenile's best interests in providing input and guidance to the juvenile on important decisions made during juvenile proceedings. However, under circumstances indicating to the court that the parents or guardians have a serious and tangible interest that is hostile to the interests of the juvenile and that might be affected by the result of the adjudication, or if the court finds reason to believe that the parents' or guardians' influence over the juvenile is contrary to the juvenile's best interests, the court may appoint a guardian ad litem for the juvenile.(h) Court Costs. If the juvenile qualifies for court-appointed counsel under subparagraph (c) above, the juvenile is also eligible for court costs, including transcript fees, at public expense. COMMENTS
An example of such conflict of interest under subparagraph (c)(2) would be when a parent is a complaining witness in the juvenile proceeding.
Rule 8 (a) reflects the statutory requirement [W. Va. Code § 49-4-704] that a juvenile's parents or legal guardians also be named in the juvenile petition as respondents. The provision in Rule 5(d) above limiting parent or guardian participation as full and separate parties in the juvenile proceeding, for the reasons detailed in State v. Kirk N., 214 W. Va. 730, 591 S.E.2d 288 (2003), is not in conflict with the Rule 8(a) requirement.