94-649 C.M.R. ch. 103, § 2 - GENERAL DUTIES

1. Defense counsel should adhere to all Maine Commission on Indigent Legal Services (MCILS) training, experience, and mentoring requirements.

2. Defense counsel should acquire sufficient working knowledge of all relevant federal and Maine laws, regulations, policies, and rules. Defense counsel must be familiar with the following provisions and be able to recognize when they are relevant to a case:

A. The Adoption and Safe Families Act (ASFA), 42 U.S.C. §§ 620 - 679.

B. Child Abuse Prevention Treatment Act (CAPTA), P.L. 108-36;

C. Indian Child Welfare Act (ICWA) 25 U.S.C. §§ 1901 - 1963, the ICWA Regulations, 25 C.F.R. Part 23, and the Guidelines for State Courts: Indian Child Custody Proceedings, 44 Fed. Reg. 67, 584 (Nov. 26, 1979);

D. Interstate Compact on Placement of Children (ICPC);

E. Foster Care Independence Act of 1999 (FCIA), P.L. 106-169;

F. Individuals with Disabilities Education Act (IDEA), P.L. 91-230;

G. Health Insurance Portability and Accountability Act of 1996 (HIPPA), P. L., 104-192 § 264, 42 U.S.C. § 1320d-2 (in relevant part);

H. Immigration laws relating to child welfare and child custody;

I. Title 22 Maine Revised Statutes, Health and Welfare;

J. Title 19-A Maine Revised Statutes, Domestic Relations;

K. Maine Rules of Evidence;

L. Maine Rules of Civil Procedure;

M. Maine Rules of Appellate Procedure;

N. Maine Bar Rules;

O. Current Maine Case Law.

3. Defense counsel should understand and protect the client's rights to information and decision making. Defense counsel must explain to the client what decision making authority remains with the client and what lies with the State while the child is in the State's custody. This includes but is not limited to:

A. Seeking updates and reports from any service provider working with the child/family;

B. Helping the client obtain information about the child's safety, health, education and well-being when the client desires;

C. Assisting the client in exercising his or her rights to continue to make decisions regarding the child's medical, mental health and educational services;

D. Intervening with the State, provider agencies, medical providers and the school to ensure the client has decision-making opportunities;

E. Seeking court orders when the client has been left out of important decisions about the child's life;

F. Counseling the client and helping the parent understand his or her rights and responsibilities and trying to assist the parent in carrying them out.

4. Defense counsel should avoid continuances and work to reduce delays in court proceedings.

A. Defense counsel should not request continuances unless there is an emergency or a benefit to the client's case.

B. If continuances are necessary, defense counsel should request the continuance in writing, as far as possible in advance of the hearing, and should request the shortest delay possible, consistent with the client's interests.

C. Defense counsel must notify all counsel of the request for a continuance. Defense counsel should object to repeated or prolonged continuance requests by other parties if the continuance would harm the client.

5. Defense counsel should cooperate and communicate regularly with other professionals in the case.

A. Defense counsel should communicate with attorneys for the other parties, court appointed special advocates (CASAs) or guardians ad litem (GALs), the caseworker, foster parents and service providers to learn about the client's progress and their views of the case, as appropriate, and in compliance with rules of confidentiality ( 22 M.R.S.A. §4008).

B. Defense counsel should have open lines of communication with the attorney(s) representing the client in related matters such as any criminal, protection from abuse, private custody or administrative proceedings to ensure that probation orders, protection from abuse orders, private custody orders and administrative determinations do not conflict with the client's goals in the child protection case.

Notes

94-649 C.M.R. ch. 103, § 2