Rule 36.Right to counsel

Rule 36 is the right-to-counsel provision for juvenile cases.

Who is served, and with what

In every delinquency proceeding, a notice shall be served upon the child, his parents, guardians, or persons with whom the child resides, stating:

• that he has a right to be represented by an attorney; and
• that if the parents are not able to employ an attorney, an attorney will be appointed by the court to represent the child.

Both halves are required. Telling someone they may have a lawyer is of little use without telling them one will be provided if they cannot pay.

"Every"

The word is doing work. There is no threshold of seriousness, no exception for a first offence, and no discretion — the notice goes out in every delinquency proceeding.

The costs provision

In appropriate cases the court may appoint counsel for the child and assess costs against the parents.

So appointment and payment are separate questions. A child whose parents can afford counsel but have not retained any is not left unrepresented; the court may appoint and then look to the parents for the cost. The limit is that the case be an appropriate one, which the rule leaves to the court.

Two related safeguards

Counsel is not the only representative a juvenile may have. Rule 32 requires the court to appoint a guardian ad litem where a detention hearing proceeds without parents who could not be located after reasonable effort — a different role, filled for a different reason. And Rule 41 caps the fees of appointed counsel and of a guardian ad litem in abuse and neglect proceedings, subject to its own exception for extraordinary circumstances.