The Role of the Legal FolksDefense and Prosecution

Lots to doLots NOT to do

Helen Harberts, MA JDHelenHarberts@gmail.com

Disclaimer

• This project was supported by Grant No. 2019-DC-BX-K012 awarded by the Bureau of Justice Assistance. The Bureau of Justice Assistance is a component of the Department of Justice’s Office of Justice Programs, which also includes the Bureau of Justice Statistics, the National Institute of Justice, the Office of Juvenile Justice and Delinquency Prevention, the Office for Victims of Crime, and the SMART Office.

Points of views or opinions in this document are those of the author and do not necessarily represent the official position or policies of the U.S. Department of Justice.

Plan of attack:

• The legal stuff related to Ethics and Confidentiality

• The value-added stuff we can bring to the table

• The stuff counsel can do to undercut progress and the team

CONFIDENTIALITY

What are Part 2 Regulations?• Title 42, Part 2 of the Code of Federal Regulations addresses use of substance use

disorder information in non-treatment settings• Part 2 ensures a patient receiving substance use treatment does not face adverse

consequences in criminal proceedings and civil proceedings such as those related to child custody, divorce, or employment.

• Separate regulations from HIPAA.

Does it apply to treatment courts?• Yes, if the treatment court, its state funding agency or any tax exempt entity or a

treatment provider receives federal funds. This is broadly interpreted. Assume it applies to your court.

• Yes, if it is patient identifying information

Source: SAMHSA, Disclosure of Substance Use Disorder Patient Records: Does Part 2 Apply to Me? https://www.samhsa.gov/sites/default/files/does-part2-apply.pdf

CONFIDENTIALITYPART 2 REGULATIONS ~ DISCLOSURE

Treatment Courts Should Use Consent Forms• Advisement of rights• Consent must include the patient name, entity, purpose, statement of revocation,

expiration, signature and date, and how to report violations• Ensure the consent form specifically references 42 C.F.R. Part 2

Other means of disclosure are VERY LIMITED• Civil subpoena – must show good cause• Criminal subpoena – must show good cause and serious crime

CONFIDENTIALITYHIPAA - SUMMARY

Health Insurance Portability Accountability Act

HIPAA does not apply to courts, court personnel, accrediting agencies, jails, or law enforcement personnel

Treatment courts are impacted by HIPAA because it applies to treatment providers and medical providers on the treatment court team and protected health information is re-disclosed to the treatment court team

CONFIDENTIALITYHIPAA - DISCLOSURE

Sample Forms

Sample Consent Form

Sample Disclosure Court Order

CONFIDENTIALITYOPEN COURTROOMS

Florida vs. Noelle Bush• Public access to the courts is

paramount

• Treatment court proceedings must be open so participants can learn from others

• If treatment court proceedings are closed, other participants and families would be excluded

CONFIDENTIALITYOPEN COURTROOMS - RECOMMENDATIONS

• Don’t discuss protected health information• Follow the rule of minimization! Be cautious about discussing

sensitive matters• Use the NADCP Judicial Benchcard and scripts to stay on target.• Use Motivational Interviewing • Use courtroom as a classroom

CONFIDENTIALITY ~ STAFFING

Washington cases:• Participant terminated from drug treatment court argued the closed

staffing violated his constitutional right to open court proceeding

• Court held that drug courts are philosophically, functionally, and intentionally different from ordinary criminal courts. Staff meetings are not subject to the open courts provision of the state constitution.

• Staffing is not a “critical stage of the proceedings” allowing a defendant to be present

Source: State v. Sykes, 339 P.3d 972 (Wash. 2014); State v. LeClech, 2015 Wash. App. Lexis 1642.

CONFIDENTIALITY ~ STAFFINGLAW ENFORCEMENT ISSUES

Law enforcement may not participate in staffing and then investigate and charge participants with new crimes based on confidential information they learn in staffing.

• State v. Plouffe, 329 P.3d 1255 (Mont. 2014) – the prosecutor cannot charge treatment court participant with a new crime based on confidential information learned in staffing.

• Prosecutor in Kansas convened grand jury on information learned in staffing. Oops! That’s a crime.

CONFIDENTIALITYSTAFFING RECOMMENDATIONS

• Close treatment court staffing in your policies and procedures manual• Implement a standing order closing treatment court staffing• Require team members to sign in at staffing and acknowledge the

confidential nature of the meeting• Get a waiver from visitors.• LOOK OUT for visiting counsel, or extraneous folks from other

treatment. Does the waiver have their names? • Watch out for hearsay and untested information coming to the

discussion.

CONFIDENTIALITYSTAFFING RECOMMENDATIONS

• Include a provision in the participant handbook that there is no right for a participant to attend staffing

• Control attendance at staffing to key team members

• Don’t charge participants with new crimes based on information learned in staffing

• Confidentiality principles apply to all team members

Use and Redisclosure• Under 42 CFR § 2.35, information from a CJS release may be

redisclosed and used only in connection to their official duties with respect to the particular criminal proceeding.

• The information may not be used in other proceedings, for other purposes or with respect to other individuals. (42 CFR §2.12(d)(1))

WHAT HAPPENS IN VEGAS……

Roles of the Legal Team?Really pretty simple: (1) Follow the Law.(2) Protect the Constitution(s).

How do you see your role in the Court?

• Do you think it varies?• Why?• When?• What do each of you do?• Do all of you attend staffing?• Do all of you attend Court?• Does the defense represent individuals in the Court?• Do you prepare legal issues for resolution before staffing?

What can we do in a treatment court?

• JOB ONE: protect the Constitution

• Prevent legal errors from occurring which compromise the case or the participant

• Facilitate the needs of the treatment team within the bounds of the law

• Learn and use behavior modification.

• Stay within your boundaries and your code of ethics.

• Stay OUT of other’s profession.• Use your training to enhance

participant outcomes. • Work together• Use the amazing power of the

Judge and team.• Advocate for these Courts.

HINT: this isn’t how we were trained!

• Judges are supposed to have a removed bench demeanor and limit engagement with persons in the Court.

• Attorneys: • “never ask a question you don’t know the answer to”• Motivational enhancement?• Engagement?• Therapeutic responses? • Let the participant chat with the Judge each session for a few minutes!

ProsecutorsWhat is going on in here?

Treatment Court vs. Traditional Roles

Traditional Role: • Conviction and be done.• Sharing throughout office• Protect due process for everyone.• Public safety & victim issues• Advisor to Law Enforcement• Gatekeeper

Expanded Role• Change location of advocacy• Treatment Confidentiality laws (ex.

Brady)• Engage and Encourage• Conduct public outreach• Facilitate what the treatment team

needs.• Settle violations and move forward

Common Issues of concern

• Assessment driven admissions with limits.• Boundary issues- doing more than practicing law• Advocacy can be intimidating- we scare people• Ex Parte contacts- like a Judge, but worse. They hunt us down.• Advocating in a different manner and forum. Move the fight• Monitoring the changes in the law. A constant challenge• Limiting file access to others in your office.• On a “team” with the defense?

DID I MISS ANY?

Defense CounselReally a tough job in Treatment Courts.

Traditional Role vs Treatment Court Role

• Advocates for client• Ethical mandates• Fight for the best outcome with

client input.• Often relieved at initial

disposition.

• Ethical challenges abound• Must appear and actually

withhold information from the team.

• Not relieved. Stays appointed to client.

• TEAM? What team?• Treatment confidentiality rules

in addition to all the rest of the defense rules

Common areas of concern:

• “ not a team player! Holds out on team!”• Conflicts between what the client wants and what is in their best

interests.• Conflicts between what they say/do, and what you can say/do.• Advocacy must cover short term and long-term goals• Credibility with Court, client, professional responsibility and record.

DID I MISS ANY?

So…how do we create “value added”?• Treat all team members as having unique and valuable skills.• Stay in our lane and boundaries. We are there to practice LAW (only) • Watch the record for appeal. Watch changes in the law across your

state and the Feds.• Learn how to facilitate the team’s needs and increase the impact of

the team.• Incorporate the Key Components and Adult Best Practices into your

“DNA” of practice. Learn treatment, trauma and criminal thinking protocols and information.

As Counsel: We operate in three distinct spheres

• Court• Staffing• Case management, problem solving, and client relations.

• Each function has a separate set of skills• Each function still works within the Key Components. (Key

Component #2 addresses role of counsel specifically) • Each function follows the Adult Best Practice Standards.

Changing Behavior Requires Information

D

Understand what the expectations should be

BEHAVIOR RESPONSES:• WHO are they in terms of risk and need?• WHERE are they in the program (phase)?• WHY did this happen (circumstances)?• WHICH behaviors are we responding to?

• Proximal or distal?

• WHAT is the response choice/ magnitude?• HOW do we deliver and explain response?

TREATMENT / SUPERVISION CHANGES?

Pre-Court Staffing• Preparing the execution of the calendar• Here is where counsel fight over legal issues and learn

late breaking news from treatment and probation. • “can you live with this for two weeks?”• Here is where the last-minute adjustments happen• Here is where the last-minute details change everything.• Focus on behavior modification during staffing.

Prep for the Staffing! Reports matter.• Work together to address legal issues up front• Unless there is a serious legal issue of

• Constitutional due process dimensions• Program integrity• Public safety

Counsel’s job is to make the law meet the needs of the treatment team.

Be prepared ! Staffing should be about Behavior Modification, not old information.

• You don’t have time to waste• Settle legal matters• Determine facts up front• Work out responses consistent with research. All 3 (4) responses

should be worked out before Court. • What are these responses?

• Incentives, Therapeutic adjustments of treatment and supervision, and sanctions. All of them every time.

In the Courtroom

• Protect the record• Remember the appeals courts!

• Protect due process• This is a COURT, not a program

• Enhance the relationship between the Court and the participant• Remember the rule of minimization.• NO FIGHTING ! Make your record and move on. Advocate for

treatment.• The Courtroom is a classroom: every word matters.

Understand the other roles

• Lawyers are there for legal reasons. Protect the record. Protect the Constitution. Motivate positively.

• DA’s are there to assert public safety concerns (with probation, Court and LE)

• The people who are doing direct services are the ones who know what is going on. Their recommendations are paramount.

• Unless public safety or due process is compromised, follow their lead.

• If you can live with the consensus, do so.• Fighting does not occur in open court.• Making a record must happen but should happen in

a manner consistent with the Court design. • The worst possible thing? The team is wrong and in

two weeks, you can fix it.

A personal story:

“ Because you can argue better does not make you right”

Reality Check

• Counsel can be a great boon to drug courts• Counsel can be a great impediment by delaying, fighting

over non-critical issues, or slowing responses.• Our role is NOT limited to the strict application of due

process. Our role is to protect the Constitution andmaximize outcomes.

• A Pyrrhic Victory is no victory.• Applying this model to lightweights is no benefit to the

public.

Attorney roles:1. Protect the Constitution2. Maximize outcomes

• Facilitate the treatment team and the plan when it meets #1 and #2

• Only counsel can find the legal way to get treatment and probation’s goals implemented.

Things to watch for:

• WATCH OUT for e-mail contacts with the Judge. (unfiltered)• Staffing: breaches of confidentiality (whose name is on the waivers?),

multiple hearsay, unfiltered information before the Judge. • FOCUS on problem solving and behavior modification.

• Court: sell recovery like you would sell to a jury! Engage and instill hope. Encourage. SMILE. The Judge carries the message, but the team reinforces and repeats it. Monitor the record, protect due process

• Know that incentives work better than sanctions on HR/HN.

Motivation, memory, engagement-public defender engagement

Public Defender teaching in the hallways of the courthouse before court

DA training & engaging before Court-treatment team and defense bar present

Emerging Legal Issues:

• Medically Assisted Treatment laws• Waivers of due process not valid • Monitoring what due process is required for imposing sanctions and

terminations.• Prophylactic incarceration• Rules of Professional Conduct for Counsel have not generally been

changed regarding ex parte contacts with Courts, even though the Courts may have changed theirs.

Other due process stuff:

• A drug test is a search. • Some drug tests do not meet Daubert/Kelly/ Frye standards. • Be sure that the testing meets legal standards for admission in a court of law.• No information should go to a Judge without notice to counsel. THAT creates

the legal nightmare. • What if it must be challenged? • What if it is not competent evidence?

• Then you buy trouble! Attorneys are there to prevent trouble and facilitate the needs of the treatment team! They protect due process.

• Again, this is a court, not just a program.

Ethical restrictions on both counsel

• As a prosecutor, I cannot: • Allow a defendant to suffer a due process violation.• Reveal the existence of a search warrant• Allow a Brady violation

• As a defense attorney, I cannot:• Allow a perpetration of a fraud upon the Court• Reveal information subject to privilege.

• Ensure that DA and Defense Counsel attend staffings and review hearings

• Judges/Prosecutors: avoid public activities (non-judicial) with participants, except for cameo appearance

• Respect ethical obligations of defense counsel• Stay in your lane and follow the law.

Best Practices

Updated every 6 months

https://www.ndci.org/resources/law/

Who wins when the team is not focused and fights?

The disease