Ineffective assistance of counsel refers to when an attorney’s services to a defendant in a criminal case fall so far from what a reasonably competent attorney would do that it violates the Sixth Amendment of the Constitution. To put it more simply, the counsel for the defendant was so ineffective that the counsel could hardly be considered an attorney. This would negate the “right to an attorney,” as promised by the Constitution. 

Among other provisions, the Sixth Amendment of the U.S. Constitution guarantees the right to an attorney if a person has been arrested. This right is intended to ensure that the person receives a fair trial. An example of this would be how if the police wish to interrogate someone, they are required to read a suspect their Miranda Rights. As part of these rights, the police must tell that person that they have the right to an attorney.

This right to an attorney has been interpreted to mean that a lawyer must be present at any adversarial and/or critical stage of a criminal prosecution. A critical stage includes:

Additionally, every American citizen has the right to be represented by counsel at trial. This is regardless of their ability to pay for legal services. If a person is unable to afford a private defense attorney, the court will appoint a public defender to represent them.

The Supreme Court defined ineffective assistance of counsel in the landmark case Strickland v. Washington (1984). They held that an attorney’s assistance is ineffective if it “so undermined the functioning of the adversary process that the trial cannot be relied upon as having produced a just result.” Ineffective counsel examples would include:

  • Failure to maintain proper communication with their client. For instance, if the attorney is appointed, but makes no attempt to contact their client;
  • Failing to inform their client of plea deals, or the consequences of their actions;
  • Failing to inform their clients of any pleadings or hearings; and/or
  • Failing to show up to a criminal hearing. 

It is important to note that ineffective assistance of counsel does not apply to civil cases. Once again, this is because the right to competent representation only applies to criminal matters. In civil matters, the client has the option of terminating the contract with their attorney if they believe their attorney is not representing them in the manner in which they deem fit for their case. The client can then pursue a malpractice case against the attorney if they feel the attorney violated the contract, or took advantage of the client. 

How Does a Defendant Prove Ineffective Assistance of Counsel? What Happens if Defense Counsel is Found To Be Ineffective?

The Strickland case created a framework for proving ineffective assistance of counsel. The burden of proof is on the defendant; what this means is that it is the defendant’s responsibility to prove that their attorney was ineffective, and how they were ineffective. The court will begin with the assumption that the attorney provided effective assistance.

In order to prove ineffective assistance, the defendant must first show that their attorney’s performance was deficient due to the fact that the attorney made considerably serious mistakes. Second, the defendant will need to prove that the attorney’s mistakes prejudiced the defendant’s case. This means that the trial would have come to a different result had the attorney not made those serious mistakes.

If the defense attorney is found to have provided ineffective assistance of counsel, the court will generally throw out the defendant’s conviction and order a new trial. Although considerably rare, the court may dismiss the case entirely.

If There Is a New Trial Can I Receive A New Attorney Or Do I Have To Represent Myself?

If the previous attorney was ruled ineffective, and you cannot afford another defense attorney yourself, the court will appoint a public defender. When appointed a public defender, you generally do not have a choice in terms of which attorney represents you. Although everyone has the right to be represented by the attorney of their choosing, the practicality of scheduling conflicts paired with the number of public defenders available effectively limits this right. However, if a person finds that they are truly unable to work with their appointed attorney, they have the right to petition the court for a new one.

Similar to how everyone has the right to an attorney, American citizens have the right to self-representation. But, because of the nature and seriousness of a criminal conviction and record, it is advised that a person who is facing criminal prosecution retain an attorney. There are some instances in which the court may deny the right of self-representation if the judge deems that the defendant is unable to do so. An example of this would be due to mental incompetence, or a number of factors.

Can I Sue For Legal Malpractice?

Ineffective assistance of counsel can result in a civil suit for legal malpractice, especially if the ineffective assistance resulted in a wrongful conviction as well as a considerably heavy sentence. If the ineffective assistance of counsel resulted in such an outcome, it is likely that the counsel was negligent in their duty to represent you. 

There are many rules that attorneys are required to adhere to, in terms of their professional conduct. Many of these rules are directly associated with an attorney’s duty to act in the best interest of every client. When an attorney violates a professional standard, a client who is affected by the attorney’s actions may be allowed to bring a lawsuit for legal malpractice.

Attorney malpractice lawsuits are generally based on:

  • The misuse of a client’s money;
  • Accepting a settlement without a client’s knowledge; 
  • Violating the confidentiality agreement between the client and the attorney; and
  • Incompetent legal work, as previously mentioned.

Before initiating an actual lawsuit against your attorney for a malpractice claim, you should fully communicate your frustrations to your attorney in writing. If your lawyer is not responsive, you should then file a report with your state’s agency that oversees attorney conduct. This would most likely be your state’s bar association. After doing so, you should consider seeking legal counsel from another attorney concerning a possible malpractice action.

In order to establish a malpractice case, you must show that your attorney breached their duty to you as a client. This involves proving that your attorney acted negligently, or otherwise violated a rule of professional conduct that all attorneys are accountable to. Additionally, you will need to prove that the attorney’s actions caused you some sort of quantifiable harm.

Do I Need a Criminal Attorney?

The standard for ineffective assistance of counsel is considerably difficult to meet, as it requires a significantly higher level of incompetence by an attorney than is required for malpractice. If you have questions about an ineffective assistance of counsel claim, or are experiencing issues associated with the matter, you should speak with an experienced and local criminal attorney as soon as possible. 

A local lawyer can inform you of your rights and legal options according to your state’s specific laws, and will also be able to provide you with the representation that you deserve.