La. Admin. Code tit. 22 § XV-1123

Current through Register Vol. 50, No. 11, November 20, 2024

Section XV-1123 - Court Preparation

A. During investigation and trial preparation, counsel should develop and continually reassess a theory of the case and strategy to follow at hearings and negotiations.

B. Counsel for parents should engage in case planning and advocate for appropriate social services using a multidisciplinary approach to representation when available.

1. The parent's attorney should know about the social, mental health, substance abuse treatment and other services that are available to parents and families in the jurisdiction in which the attorney practices so the attorney can advocate effectively for the client to receive these services. The attorney should ask the client if the client wishes to engage in services. If so, the attorney should determine whether the client has access to the necessary services to overcome the issues that led to the case.

2. The attorney should actively engage in case planning, including attending major case meetings and family team conferences, to ensure the client asks for and receives the needed services. The attorney should also ensure the client does not agree to undesired services that are beyond the scope of the case.

3. Whenever possible, the parent's attorney should engage or involve a social worker as part of the parent's "team" to help determine an appropriate case plan, evaluate social services suggested for the client, and act as a liaison and advocate for the client with the service providers.

C. Counsel for parents should research applicable legal issues and advance legal arguments when appropriate.

D. Counsel for parents shall timely file all appropriate pleadings, motions, and briefs.

1. Counsel should consider filing an appropriate motion whenever there exists a good-faith reason to believe that the parent is entitled to relief which the court has discretion to grant.

2. The decision to file pretrial motions should be made after considering the applicable law in light of the known circumstances of each case.

3. Among the issues that counsel should consider addressing in a pretrial motion are:

a. the constitutionality of the implicated statute or statutes;

b. the potential defects in the charging process;

c. the sufficiency of the charging documents;

d. the discovery obligations of the prosecution/agency and the reciprocal discovery obligations of the defense; and

e. access to resources which, or experts, who may be denied to an accused because of his or her indigence.

E. Counsel for parents should aggressively advocate for regular visitation in a family-friendly setting. Factors to consider in visiting plans include:

1. frequency;

2. length;

3. location;

4. supervision;

5. types of activities; and

6. visit coaching- having someone at the visit who could model effective parenting skills.

F. With the client's permission, and when appropriate, counsel for parents should engage in settlement negotiations and mediation to resolve the case. Counsel should adhere to all laws and ethical obligations concerning confidentiality and participate in such proceedings in good faith.

1. Counsel should keep the client fully informed of any continued discussion concerning stipulating and related negotiations and promptly convey to the accused any offers made by the prosecution/agency for a negotiated settlement.

2. Counsel shall not accept any stipulation agreement without the client's express authorization. Prior to entering any stipulation, counsel should ensure that client understands the potential consequences of certain stipulations, particularly the potential for a subsequent termination of parental rights.

3. The existence of ongoing tentative stipulation negotiations with the prosecution/agency should not prevent counsel from taking steps necessary to preserve a defense nor should the existence of ongoing stipulation negotiations prevent or delay counsel's investigation into the facts of the case and preparation of the case for further proceedings, including trial.

4. In order to develop an overall negotiation plan, counsel should be aware of, and make sure the client is aware of:

a. the conditions proposed by the Department of Children and Family Services ;

b. the spectrum of possible outcomes;

c. other consequences of adjudication, including but not limited to the impact on any potential criminal investigation or subsequent termination of parental rights proceeding;

d. concessions that the client might offer the prosecution as part of a negotiated settlement, including, but not limited to:

i. not to proceed to adjudication;

ii. decline from asserting or litigating any particular pretrial motions; and

iii. an agreement to fulfill specified, written conditions; and

e. benefits the client might obtain from a negotiated settlement, including, but not limited to an agreement:

i. to enter into an informal adjustment agreement;

ii. reunification with particular conditions;

iii. to dismiss or reduce one or more charged criminal offenses either immediately, or upon completion of a deferred prosecution agreement; and

iv. that the respondent will not be subject to further investigation or prosecution for uncharged alleged criminal conduct.

5. In conducting stipulation negotiations, counsel should be familiar with:

a. the advantages and disadvantages of stipulation according to the circumstances of the case; and

b. the various types of stipulations that may be agreed to, including but not limited to a stipulation without admitting the allegations.

6. In conducting negotiations, counsel should attempt to become familiar with the practices and policies of the particular jurisdiction, judge and prosecuting authority, and Department of Children and Family Services personnel which may affect the content and likely results of negotiated agreements.

G. Counsel for parents should thoroughly prepare the client to testify at the hearing;

H. Counsel for parents should identify, locate and prepare all witnesses; and

I. Counsel for parents should identify, secure, prepare and qualify expert witness when needed. When permissible, counsel should interview opposing counsel's experts.

La. Admin. Code tit. 22, § XV-1123

Promulgated by the Office of the Governor, Public Defender Board, LR 37:326 (January 2011).

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