Advisory Opinion 2022-005

Application of Part 1613 to Cases Involving “Delinquent” Charges for Juveniles in Florida

Advisory Opinion 2022-005 (pdf)

September 2, 2022

QUESTIONS PRESENTED

Is it permissible for an employee of an LSC-funded organization to use non-LSC funds to provide services to juveniles identified as victims of human trafficking who are eligible to enter a delinquency diversion program?
Is it permissible to use LSC funds to provide these services?

BRIEF ANSWER

Yes, the grantee may represent juveniles eligible to enter the diversion program using non-LSC funds if those funds were provided for that purpose.
Under Florida law, juvenile delinquency cases are non-criminal and carry no possibility of a jail sentence. As such, they are not “criminal cases” as defined at 45 C.F.R. § 1613.2 and not subject to the Part 1613 restrictions. This analysis does not apply to cases involving “delinquent” charges under different circumstances or different jurisdictions.

BACKGROUND

Coast to Coast Legal Aid of South Florida (CCLA) is an LSC-funded organization in Broward County, Florida. CCLA provides representation for survivors of human trafficking in various civil legal cases and assists survivors seeking expungements in trafficking-related criminal cases. Currently, CCLA receives funding from the U.S. Department of Justice’s Office for Victims of Crime (OVC) to handle these types of trafficking-related cases.

The Florida Department of Juvenile Justice, Office of Prevention Services, offers voluntary youth crime prevention programs throughout the state of Florida.^[1] The office’s mission is to increase public safety by reducing juvenile delinquency through effective prevention, intervention, and treatment services that strengthen families and turn around the lives of troubled youth. They address these problems by contracting for delinquency prevention services and awarding grants to local providers throughout the state. Their programs target youth who exhibit problem behaviors such as ungovernability, truancy, running away from home, and other pre-delinquent behaviors.

The Office of the State Attorney for Broward County is working with the Nancy J. Cotterman Center (NJCC), a local non-profit organization, to develop a program for juvenile offenders who are identified as victims of human trafficking. NJCC is the certified rape crisis center in Broward County and will be the “Provider” for the human trafficking diversion program. Only first-time offenders charged with a misdemeanor or non-violent third-degree felony would be eligible to participate in the program. The charges must also have a connection to the human trafficking of the juvenile.

CCLA has stated that under Florida law, crimes committed by minors are handled in a specialized system called delinquency. The Florida juvenile justice system is designed to rehabilitate offenders through supervision, counseling, and treatment. Depending on the nature of the offense, a judge may give a juvenile probation or warnings or commit the juvenile to residential programs. Commitment to a juvenile program, or adjudication, is the highest level of consequence available in delinquency proceedings, and there is no jail or prison time for delinquent cases. Under Florida law, adjudication is not the same as conviction^[2] or imprisonment. A judge may commit a juvenile for an indeterminate period, which may include periods of temporary release.^[3] The delinquency record will be kept confidential and will not follow juveniles into adulthood unless they become involved in the adult criminal justice system.

To enter the diversion program, juveniles must sign contracts agreeing to waive their right to a speedy trial and to comply with all conditions of participation in the program. Under the diversion program contract, the juvenile would be required to perform community service, attend school or vocational programs, not reoffend, and comply with any treatment recommendations.

In lieu of a trial, juveniles appear before a judge to enter a plea of guilty or no contest. The disposition of their charges is deferred for a year pending satisfactory completion of the diversion program. Because juvenile delinquency proceedings are not considered criminal proceedings, juveniles are not entitled to representation by a public defender under Gideon v. Wainwright, 372 U.S. 335 (1963). The Provider may be present in Court as the Provider will be preparing the diversion program packets for signature, but the Provider is not an attorney and will not offer legal advice.

The Provider asked if CCLA’s Human Trafficking Program could provide legal services to identified human trafficking juveniles by reviewing the diversion program contract with the juvenile. The review would emphasize advising the juvenile about the waiver of speedy trial and explaining potential legal consequences of failing to comply with the contract. The full scope of the legal services would be the review and advice on the contract for entrance into the diversion program with the juvenile.

AUTHORITY

Under Part 1613 of LSC’s regulations, implementing section 1007(b)(2) of the LSC Act, recipients are prohibited from using LSC funds to provide “legal assistance with respect to criminal proceedings.” 45 C.F.R. § 1613.1. Part 1613 defines “criminal proceeding” as:

the adversary judicial process prosecuted by a public officer and initiated by a formal complaint, information, or indictment charging a person with an offense denominated ‘‘criminal’’ by applicable law and punishable by death, imprisonment, or a jail sentence.

Id. § 1613.2.

If no more than a fine can result from conviction, the Part does not prohibit representation. 41 Fed. Reg. 38506 (Sept. 10, 1976).

Section 1010(c) of the LSC Act addresses restrictions on the use of non-LSC funds. Section 1010(c) extends the LSC Act restrictions to all non-LSC funds of LSC recipients with two exceptions: (1) public or tribal funds used for the purposes provided; and (2) non-LSC funds for separate public defender programs in legal aid societies:

Non-Federal funds received by the Corporation, and funds received by any recipient from a source other than the Corporation, shall be accounted for and reported as receipts and disbursements separate and distinct from Federal funds;

but any funds so received for the provision of legal assistance shall not be expended by recipients for any purpose prohibited by this subchapter,

except that this provision shall not be construed to prevent recipients from receiving other public funds or tribal funds (including foundation funds benefiting Indians or Indian tribes) and expending them in accordance with the purposes for which they are provided,

or to prevent contracting or making other arrangements with private attorneys, private law firms, or other State or local entities of attorneys, or with legal aid societies having separate public defender programs, for the provision of legal assistance to eligible clients under this subchapter.

42 U.S.C. § 2996i(c) (formatting added to delineate separate clauses; emphasis added).

LSC implemented the restrictions on non-LSC funds at 45 C.F.R. Part 1610. Section 1610.2(d)(2)(ii) defines “Standard restrictions” to include the criminal proceedings prohibition in section 1007(b)(2) of the LSC Act and 45 C.F.R. Part 1613. Part 1610 then provides the following rules and exceptions for the use of non-LSC public funds.

1610.4 Prohibition on the use of non-LSC funds.

(a) Non-LSC funds may not be used by recipients for restricted activities as described in this section, subject to the exceptions in §§ 1610.5 or 1610.6 of this part.

* * *

(1) Private funds - any use of private funds;

(2) Public funds - any unauthorized use of public funds; and

(3) Tribal funds - any unauthorized use of tribal funds.

* * *

1610.6. Exceptions for public defender programs and criminal or related cases.

The following restrictions do not apply to:

(1) A recipient’s or subrecipient’s separately funded public defender program or project; or

(2) Criminal or related cases accepted by a recipient or subrecipient pursuant to a court appointment.

(a) Criminal proceedings – 45 C.F.R. part 1613

(b) Actions challenging criminal convictions – 45 C.F.R. part 1615;

(d) Prisoner litigation - 45 C.F.R. part 1637.

45 C.F.R. § 1610.6.

ANALYSIS

The first question presented is whether CCLA may use non-LSC funds to conduct the contract reviews. CCLA receives funding from the Office for Victims of Crime (OVC) to handle trafficking cases. These funds are “derived from a government or instrumentality of a government” 45 C.F.R. § 1610.2(f) and since the funds are provided to handle trafficking cases, representation of juvenile defendants entering the proposed diversion program appears to be consistent with the funding purpose. Accordingly, the LSC Act would permit CCLA to use those funds for the representation of juveniles in the diversion program.

The second question presented is whether the diversion program contract review is a criminal proceeding for the purposes of Part 1613. LSC has opined on the applicability of Part 1613 numerous times. LSC has interpreted Part 1613 as permitting representation in “nominally criminal matters or matters which can fairly be considered to be technically criminal cases, but which are basically civil in nature” so long as the offense carries no possibility of a jail sentence as punishment. See OLA External Opinion 2004-1002 (February 17, 2004) and opinions cited therein. In EX-2004-1002, LSC opined that the “lack of a public defender appointment denotes a case (or type of charge) that aligns more with a civil matter than a criminal matter.” As described, the diversion program participation would align more with cases “which are basically civil in nature” because the role of CCLA is strictly limited to the contract review and associated advice. Further, in Florida, a juvenile delinquency adjudication is not considered a conviction and is not punishable by death, imprisonment, or jail time. Therefore, juvenile proceedings are not criminal proceedings. Accordingly, juvenile proceedings are not subject to the restrictions on representation in criminal matters contained in the LSC Act and regulations.

WILL A. GUNN
Vice President for Legal Affairs and General Counsel

STEFANIE K. DAVIS
Senior Associate General Counsel for Regulations and Ethics Officer

ELIJAH JOHNSON, JR.
Assistant General Counsel

[1] https://www.djj.state.fl.us/services/prevention-services

[2] “an adjudication of delinquency . . . shall not be deemed a conviction.” § 985.35(6), Fla. Stat. (2011)

[3] J.I.S. v. State, 930 So.2d 587 (Fla. 2006)