STATEMENT OF CLIENT'S RIGHTS FOR CONTINGENCY FEE ARRANGEMENTS 

Before you, the prospective client, arrange a contingent fee agreement with a lawyer, you should understand this statement of your rights as a client. This statement is not a part of the actual contract between you and your lawyer, but, as a prospective client, you should be aware of these rights:

1. There is no legal requirement that a lawyer charge a client a set fee or a percentage of money recovered in a case. You, the client, have the right to talk with your lawyer about the proposed fee and to bargain about the rate or percentage as in any other contract. If you do not reach an agreement with 1 lawyer you may talk with other lawyers.

2. Any contingent fee contract must be in writing and you have 3 business days to reconsider the contract. You may cancel the contract without any reason if you notify your lawyer in writing within 3 business days of signing the contract. If you withdraw from the contract within the first 3 business days, you do not owe the lawyer a fee although you may be responsible for the lawyer’s actual costs during that time. If your lawyer begins to represent you, your lawyer may not withdraw from the case without giving you notice, delivering necessary papers to you, and allowing you time to employ another lawyer. Often, your lawyer must obtain court approval before withdrawing from a case. If you discharge your lawyer without good cause after the 3-day period, you may have to pay a fee for work the lawyer has done.

3. Before hiring a lawyer, you, the client, have the right to know about the lawyer’s education, training, and experience. If you ask, the lawyer should tell you specifically about the lawyer’s actual experience dealing with cases similar to yours. If you ask, the lawyer should provide information about special training or knowledge and give you this information in writing if you request it.

RESTITUTION IN CRIMINAL CASES

The holiday season always seems to go by too fast. Spending time with loved ones, relaxing away from the work environment, and breaking out the winter clothes are just a few of the activities common to the holidays. Also on this list, of course, is gift giving. With the hustle and bustle past, chances are you have a reminder of the holidays in the form of one or more credit card bills. Now that all of your creditors are looking for your restitution, what better topic to discuss than restitution in criminal cases.

There are numerous issues in proving restitution in a criminal case. Florida law provides that "in addition to any criminal punishment imposed, the court shall order the defendant to make restitution to the victim for (1) damage or loss related to the defendant’s criminal episode, unless it finds clear and compelling reasons not to order such restitution; and (2) damage or loss caused directly or indirectly by the defendant’s offense." Although restitution can be an available option, it must first be proven by the state.

The state must satisfy two tests before restitution can be imposed on a criminal defendant. In Schuette v. State, 822 So.2d 1275 (Fla. 2002), the Florida supreme court established both the causal relationship test and the significant relationship test.

Schuette explained that, "To compel a defendant to pay restitution, the State has the burden of establishing causation, as well as the burden of demonstrating the amount of loss sustained by the victim as a result of the offense. Further, the State must establish both causation and the amount of loss or damages by a preponderance of the evidence." Id. at 1278-1279. If the causal relationship test is satisfied, the state must then prove the significant relationship test before restitution can be awarded.

The significant relationship test involves the state proving that the defendant’s conduct was the proximate cause of the particular harm. Schuette pointed out that, "The victim should be entitled to recover damages through criminal restitution if the causal connection between the criminal offense and the damage is comparable to that proximate causation which would allow the victim to relate comparable damages to a wrongful act in tort." Id. at 1282. Thus, the act committed by the defendant must be reasonably foreseeable to result in the type of harm sustained by the victim.

In Molter v. State, 29 Fla. L. Weekly D 2590 (2^nd DCA Nov. 17, 2004), the court analyzes several aspects of restitution. First, an objection as to the amount of restitution mandates a hearing on the issue. Second, a prosecutor’s unsworn assertions about the total value of items is not evidence and can not be used to establish value. Instead, there must be record evidence sufficient to support the state’s preponderance burden. Finally, since restitution serves as a form of rehabilitation, deterrence, and retribution and is not just for compensation, fair market value may not always be adequate. In this case, the trial court had assessed family heirlooms at higher than market value.

Restitution is not awarded simply because the defendant is convicted of a qualifying offense. The state must first prove that restitution is appropriate. If restitution is requested from the state, it is the job of the defense attorney to protect the financial interests of the defendant by demanding proper record proof of the causal relationship and the significant relationship tests.

LONG-TERM IMPACTS ON CRIMINAL CONVICTIONS

A prison sentence entails much more than simply serving the time. A convicted felon will be reminded of his mistake for the rest of his life. Whether it be obtaining employment, registering to vote, or applying for a driver’s license; there are many different ways a convicted felon is reminded of when she broke the law. A recent Florida Supreme Court decision reminds us how a conviction can also terminate parental rights.

B.C. v. Florida Department of Children and Families, 29 Fla. L. Weekly S 508 (2004) involved the termination of parental rights of a father serving a prison sentence. Section 39.806(1)(d)(1), Florida Statutes (2003) states that, "The department may petition for the termination of parental rights when the parent of a child is incarcerated in a state or federal correctional institution and the period of time for which the parent is expected to be incarcerated will constitute a substantial portion of the period of time before the child will attain the age of 18 years." Attorneys, especially those practicing dependency law, are very familiar with this statute section. However, the issue in B.C. was whether "substantial portion" was to be weighed against the entire period of incarceration, or if the language pertained to only the remaining time to be served after the petition for termination is filed.

First, the court considered how much time constitutes a "substantial portion of the time before the child reaches 18." The father in B.C. had approximately four years left to serve in his seven year seven month prison sentence. The father’s four-year old child had fourteen years remaining until reaching the age of majority. The Florida Supreme Court agreed with the trial court and concluded that, "the four years remaining in the father’s sentence was not a substantial portion of the remaining fourteen-year minority of the child." Id. at 511.

If the court considered the entire period of incarceration, the father in B.C. would have his parental rights terminated because his total sentence was more than 50% of the remaining fourteen-year minority, which would be considered a substantial portion. However, in this same situation, if the court considered the time remaining on the prison sentence, this same individual will be able to remain a father when he completes his prison sentence. B.C. held that the period of incarceration remaining after the petition is filed is the appropriate standard. Id. at 509. Applying this rationale, B.C. concluded that before parental rights may be terminated, "the trial court must find by clear and convincing evidence that the time remaining in the parent’s incarceration constitutes a substantial portion of the time remaining before the child or children attain the age of eighteen years." Id. at 511.

Why is B.C. beneficial to a defense attorney? If you represent a parent in a criminal case, you may have to advise her of the long-term impacts a conviction may have on her future. It is crucial to be aware of B.C. because accepting a plea of X years may result in the termination of parental rights. While a collateral consequence of the conviction, losing parental rights is still a significant impact resulting from a criminal conviction.

B.C. is a constant reminder of the long-range impacts of criminal convictions. Attorneys who inform their clients of all possible negative impacts from a conviction are providing the highest quality legal services.

VOICES THAT SPEAK TO PROSECUTORS

Every day in our criminal courts, prosecutors and defense attorneys battle over the merits of charges, the admissibility of evidence, the proper sentences for offenses, and ultimately about the true meaning of different people’s actions. In addition to the lawyers and the judge, the parties that influence cases are law enforcement officers, victims, witnesses, and politicians.

Victims have the right to be heard as enshrined Florida’s constitution in Article 1, Section 16(b). Florida Statutes, Section 960.0021 specifies many of these rights which include the right to be heard at all crucial stages of criminal proceedings and to consult with the state attorney’s office.

Many times victims who have been stripped of their dignity feel empowered through participation. Similarly, victims can exert excessive influence over a prosecution. When they do the symptoms can be the filing of questionable charges and requests for excessive sanctions.

Defense attorneys strive to provide alternative views of the case. In doing so they challenge the voices that normally garner a prosecutor’s attention. Sometimes these challenges are perceived as hostile by victims who are already raw from the process. This can make for intense dialogue during negotiation and sentencing. Sometimes prosecutors decide not to handle the responsibility of a key decision in a case and they defer to the judge to do the "heavy lifting."

The Supreme Court stated in Imbler v. Pachtman, 424 U.S. 409, 431 (1975) that "we recognize that the duties of the prosecutor in his role as advocate for the State involve actions preliminary to the initiation of a prosecution and actions apart from the courtroom. A prosecuting attorney is required constantly, in the course of his duty as such, to make decisions on a wide variety of sensitive issues. These include questions of whether to present a case to a grand jury, whether to file an information, whether and when to prosecute, whether to dismiss an indictment against particular defendants, which witnesses to call, and what other evidence to present. Preparation, both for the initiation of the criminal process and for a trial, may require the obtaining, reviewing, and evaluating of evidence. At some point, and with respect to some decisions, the prosecutor no doubt functions as an administrator rather than as an officer of the court. Drawing a proper line between these functions may present difficult questions . . ."

No doubt prosecutors face many difficult questions. This brief article does not even address a whole host of other critical issues prosecutors face like how to deal with exculpatory evidence, making proper closing arguments, the burden of proof, and presenting satisfactory statistics for politicians with budget money, among others.

Ultimately, the purpose of this rambling vignette is to acknowledge the difficult job of prosecutors. They have many voices clamoring for their attention.

Juvenile Rights v. Rehabilitation

This article continues a series of articles examining issues in juvenile justice and will discuss: 1) Juvenile Assessment Center ("JAC") procedures for obtaining urine samples; 2) consents for psycho-social assessments and urine samples; and, 3) exposure to excessive punishment for a charge based upon the amount of information a juvenile discloses to the case manager.

First, the obtaining of urine samples for drug tests and the Agency for Community Treatment Services ("ACTS") policy behind such tests pose serious threats to juvenile rights. ACTS management requires case managers to maintain high numbers of urine samples because the facility receives grant money for each sample. This grant money provides a major source of funding for the JAC. A case manager may obtain questionable consent by not informing a juvenile that he has an option to decline to submit a urine sample. In addition, the procedures for obtaining a urine sample from a juvenile appear not conform to the standards set forth by the F.D.L.E. State of Florida v. Bodden, 27 Fla. L. Weekly D 2382 (2^nd DCA 2002) is analogous. Bodden dealt with the method of administration and analysis of a urine test in a DUI case. The court held urine tests for the presence of chemical or controlled substances must be performed according to the methods approved by the F.D.L.E and in accordance with the Florida Administrative Procedures Act. Protocol in JAC procedures may pose problems with the admissibility of such evidence in court.

Second, the juvenile’s parent(s) are not present for the psycho-social assessment or the juvenile’s consent to the assessment and urine sample. The parents are typically unaware of the intake procedures until meeting with the case manager after the proceedings are complete. The juvenile typically consents to intake proceedings and waives counsel because she is scared, confused, or has no one to advise her that it may be in her best interest to decline.

Lastly, the information gathered by a case manager during intake proceedings gives them wide-range discretion when making a recommendation for a diversion program. The "rehabilitative model" often results in harsher punishments for an honest juvenile and easier punishment for the dishonest and experienced juvenile. Based on information disclosed by the juvenile in intake proceedings, a first time offender charged with petit theft can be placed in an intensive diversion program such as Intensive Delinquency Diversion Services or Juvenile Drug Court (see last article for description). However, if a juvenile charged with petit theft admits to drug use, the case manager might recommend Juvenile Drug Court requiring the juvenile to submit urine samples twice a week for a year. The problem with these recommendations is that juveniles who lie or make no lifestyle admissions have the potential to receive much easier diversion programs than those who are honest and admit substance abuse, school, or family issues.

In conclusion, this article attempts to describe the JAC intake process and unveil a few concerns with this contact. Lawyers should continue to question the practices, procedures, and diversion recommendations of this facility.