When people think of legal malpractice, they typically associate it with a lost case due to an inadequate lawyer. Though this is oversimplification of a complex concept, this type of potential legal malpractice likely falls under ineffective assistance of counsel. Many just call it bad lawyering.
Right to Effective Counsel
The United State Constitution provides you with the right to a defense when you are charged with a crime. The Sixth Amendment in the Bill of Rights asserts your right to effective assistance of counsel. The Fourteenth Amendment, referred to as the due process clause, applies most of the Bill of Rights to the states. In the Colorado Constitution, our Bill of Rights is in Article II. This is the section that addresses your rights when you are accused of a crime, and among those is your right to counsel. Hence, it is your constitutional right on both a federal and state level to have an attorney defend you against criminal charges in many phases of a court case.
Legal precedent for determining ineffective counsel is found in Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2064 (1984). This court decision created a benchmark to judge these types of legal malpractice claims. It found that your counsel may be ruled ineffective if your attorney's conduct was so faulty that he deprived you of a fair trial, and the courts cannot rely on the results as being just.
When considering a claim of ineffective assistance of counsel, the court asks two main questions:
- Was your lawyer's conduct constitutionally deficient, in that it fell below an objective reasonable standard?
- Did this deficiency lead to prejudice against you as a defendant, and it not for his errors, there would have been a different outcome?
There are different stages of the criminal adversarial process where bad lawyering may apply:
- Plea Bargains - You must demonstrate that the only reason you entered a guilty plea was your lawyer's mistakes.
- Trial - Your lawyer must provide the best defense possible from beginning to end. This includes trial preparation, investigation, and exploring all legal and ethical means of proving your innocence and defending against your charges.
- Sentencing - If you have been convicted, your attorney should argue for a just and fair sentence.
- Appeals - You have a limited right to an attorney post conviction.
Proving ineffective assistance of counsel is a vital means of delivering the justice that you were denied. It means that your conviction or guilty plea will be thrown out and you get to go to trial again. It is essentially the chance for a do-over with a different lawyer. You may also sue your lawyer for legal malpractice in civil court. These are very difficult and complex claims. The burden of proof is heavy. You lawyer's performance must have demonstrated a very high level of incompetence. A seasoned Colorado legal malpractice attorney can help you determine if ineffective assistance of counsel might apply to your situation.
Sources: /Legal-Malpractice/, http://legal-dictionary.thefreedictionary.com/Sixth+Amendment, https://www.acslaw.org/sites/default/files/Schmid_Durocher_-_Right-to-Counsel_Term.pdf