You may not like your lawyer, but does that really mean that you have a claim for ineffective assistance of counsel? What is "ineffective counsel" anyway, legally speaking?
First off, there's a difference between the legal terms ineffective assistance of counsel and legal malpractice. The two can go hand in hand, but a malpractice claim is one where a client sues his lawyer for falling below the standard of legal professionalism.
Ineffective assistance of counsel, on the other hand, is used in a different way.
Ineffective assistance of counsel can be grounds for appeal in a criminal case. Basically, if you're in a criminal case and your attorney's mistakes or incompetence were the reason you lost your case, you can try to bring this issue on appeal.
If successful, a judge may order a new trial.
Here are five signs you may have a good claim for ineffective assistance of counsel:
- Your lawyer made decisions without consulting you. In general, your criminal defense attorney should make key legal decisions after consulting with you. This means that your lawyer should lay out the pros and cons of a given legal strategy, and do his or her best to explain them to you.
- Your lawyer filed notices late. In a criminal case, timing can be everything. If the judge cites your attorney for filing a notice late, that can be a point for you to take note of. While missing one deadline may be excusable in some cases, missing multiple deadlines can potentially be used in an appeal.
- Your lawyer behaved unprofessionally. Professionalism is subjective, in many cases. But if you notice that your attorney really behaves differently from other attorneys (i.e., wears gold-studded suits to court, is never on time, or misinforms you about something), then it can fall below a standard of what's professional. That could potentially affect your case, as your attorney is representing you in front of a judge and jury.
- Your lawyer never responds to you. This goes back to the first point, that your lawyer should work with you. While the lawyer does have legal knowledge that you may not have, every effort should be made to be collaborative and take your wishes into consideration.
- Your lawyer gets terminology or procedure wrong. Yes, this happens. Prosecutors and judges have been known to correct defense lawyers. When your lawyer is actually called out by opposing counsel or the judge, you may want to start questioning his or her competence.
- Ineffective Counsel: Death Row Inmate Gets New Penalty Trial (FindLaw's U.S. Ninth Circuit Blog)
- Sixth Amendment Right To Counsel: What is it? (FindLaw Blotter)
- How to Change Your Public Defender (FindLaw Blotter)
- The Right to Adequate Representation (FindLaw)