La. Admin. Code tit. 22 § XV-2121

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

Section XV-2121 - Counsels Initial Interviews with Client

A. Recognizing that first contact with a juvenile client facing a possible life without parole sentence is an extremely important stage in the representation of the client, counsel should take all reasonable steps to conduct a prompt initial interview designed to protect the clients position, preserve the clients rights and begin the development of a relationship of trust and confidence.

B. Counsel should take all reasonable steps to ensure that the clients rights are promptly asserted, that the client does not waive any right or entitlement by failing to timely assert the right or make a claim, and that any exculpatory or mitigating evidence or information that may otherwise become unavailable is identified and preserved.

C. Counsel should ensure that a high level of contact is maintained at the outset of the representation that is at least sufficient to begin to develop a relationship of trust and confidence and to meaningfully communicate information relevant to protecting the clients position and preserving the clients rights.

D. An initial interview of pre-trial clients should be conducted within 24 hours of counsels assignment to the case unless exceptional circumstances require counsel to postpone this interview. In that event or where the client is being represented in appellate or post-conviction proceedings, the interview should be conducted as soon as reasonably possible.

E. Preparing for the Initial Interview

1. Prior to conducting the initial interview of a pre-trial client, counsel should, where possible and without unduly delaying the initial interview:

a. be familiar with the elements of the offense(s)and the potential punishment(s), where the charges against the client are already known;

b. obtain copies of any relevant documents that are available, including copies of any charging documents, warrants and warrant applications, law enforcement and other investigative agency reports, autopsy reports, and any media accounts that might be available;

c. request mental health, juvenile assessment center, detention center or education records, including any screenings or assessments, that may help in the initial interview with the client; and

d. consult with any predecessor counsel to become more familiar with the case and the client.

2. In addition, where the pre-trial client is incarcerated, counsel should:

a. be familiar with the legal criteria for determining pretrial release and the procedures that will be followed in setting those conditions;

b. be familiar with the different types of pretrial release conditions the court may set and whether private or public agencies are available to act as a custodian for the client's release; and

c. be familiar with any procedures available for reviewing the trial judge's setting of bail;

d. be familiar with the requirements of PREA and IDEA and utilize any failure to follow these laws to advocate for release or, in the alternative, placement in a more appropriate facility;

e. advocate for placement in a juvenile detention facility.

3. Prior to conducting the interview of a client at appellate and post-conviction stages, counsel should, where possible and without unduly delaying the initial interview:

a. be familiar with the procedural posture of the case;

b. obtain copies of any relevant documents that are available that provide information on the nature of the offense and the conduct and outcome of prior stages of the proceedings;

c. consider consulting with any predecessor counsel to become more familiar with the case and the client.

F. Conducting the Interviews

1. Counsel should not expect to adequately communicate all relevant information or begin to develop the necessary relationship with the client in a single interview but should undertake an initial series of interviews designed to achieve these goals. Given the peculiar pressures and issues presented in representing a juvenile client in a life without parole case, counsel should seek to develop a relationship of trust and confidence before questioning the client about matters relevant to the offense or mitigation.

2. Counsel should always interview the client in an environment that protects the attorney-client privilege. Counsel should take reasonable efforts to compel court and other officials to make necessary accommodations for private discussions between counsel and client in courthouses, lock-ups, jails, prisons, detention centers, hospitals, forensic mental health facilities and other places where clients confer with counsel.

3. Counsel should take all reasonable steps to ensure at the initial interview and in all successive interviews and proceedings that barriers to communication and trust are overcome.

4. The scope and focus of the initial interviews will vary according to the circumstances of the case, the circumstances of the client and the circumstances under which the interviews occur.

5. Information to be provided to the client during initial interviews includes, but is not limited to:

a. the role of counsel and the scope of representation, an explanation of the attorney-client privilege, the importance of maintaining contact with counsel, and instructions not to talk to anyone, including other inmates, about the facts of the case or matters relevant to the sentencing hearing without first consulting with the attorney;

b. describing the other persons who are members of the defense team, how and when counsel, or other appropriate members of the defense team, can be contacted; and when counsel, or other members of the defense team, will see the client next;

c. a general overview of the procedural posture and likely progression of the case, an explanation of the charges, the potential penalties, and available defenses;

d. what arrangements will be made or attempted for the satisfaction of the clients most pressing needs; e.g., medical or mental health attention, education, other conditions of confinement issues, contact with family or employers;

e. realistic answers, where possible, to the clients most urgent questions;

f. an explanation of the availability, likelihood and procedures that will be followed in setting the conditions of pretrial release;

g. a detailed warning of the dangers with regard to the search of client's cell and personal belongings while in custody and the fact that conversations with other inmates, telephone calls, mail, and visitations may be monitored by jail officials. The client should also be warned of the prevalence and danger presented by jailhouse informants making false allegations of confessions by high profile prisoners and advised of the strategies the client can employ to protect himself from such false allegations;

h. assess whether there may be some question about the childs competence to proceed or the existence of a disability that would impact a possible defense or mitigation;

i. an understanding of the conditions of incarceration:

i. whether the child is being held in an adult jail or juvenile detention center;

NOTE: if the child is being held in an adult jail, counsel should advocate that the child be placed in a juvenile detention center.

ii. if the child is being held in an adult jail, whether the child has any contact with adult inmates;

iii. whether the child is being provided education in compliance with state and federal law;

iv. whether the child is receiving adequate medical, dental and mental health care;

v. whether the child has adequate clothing, bedding and personal hygiene products;

vi. whether the child has been exposed to or is at risk of physical violence, sexual assault or self-harm;

vii. whether the child has adequate access to physical exercise and natural light.

6. Information that should be acquired as soon as appropriate from the client includes, but may not be limited to:

a. the client's immediate medical needs and any prescription medications the client is currently taking, has been prescribed or might require;

b. whether the client has any pending proceedings, charges or outstanding warrants in or from other jurisdictions or agencies (and the identity of any other appointed or retained counsel);

c. the ability of the client to meet any financial conditions of release or afford an attorney;

d. the existence of potential sources of important information which counsel might need to act immediately to obtain and/or preserve.

7. Appreciating the unique pressure placed upon juvenile defendants facing the possibility of a life without parole sentence and the extremely sensitive nature of the enquiries that counsel must make, counsel should exercise great caution in seeking to explore the details of either the alleged offense or matters of personal history until a relationship of trust and confidence has been established that will permit full and frank disclosure.

8. Where possible, counsel should obtain from the client signed release forms necessary to obtain clients medical, psychological, education, military, prison and other records as may be pertinent.

9. Counsel should observe and consider arranging for documentation of any marks or wounds pertinent to the case, and secure and document any transient physical evidence.

La. Admin. Code tit. 22, § XV-2121

Promulgated by the Office of the Governor, Public Defender Board, LR 431923 (10/1/2017).

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