Assisting by Being "Ineffective"

This week, the blawg world was abuzz about incompetent and ineffective criminal defense attorneys.

I'm not excusing the practices of attorneys [accused of being ineffective], but all of this talk of ineffective assistance of counsel has me wondering - Is it always a bad thing to be called "ineffective," if it potentially helps your client?  Or, to put it another way, is it ever a good thing to be ineffective, or at least called "ineffective," for your client's sake?

For example, not that long ago, the appellate court overturned a case that an an acquaintance of mine had tried.  I think my acquaintance is a good lawyer, and the decision didn't specifically name him or call him out.  However, the court overturned the conviction, finding the attorney ineffective for failure to investigate the defendant's alibi.  In fact, the decision was kind of confusing, I think that even if this defendant's "alibi" had been proven, it would not have been impossible for the defendant to commit this crime, just less likely (if you believe that you're less likely to commit a crime when you're coming from somewhere legitimate, like work).  I may not have investigated that alibi - it doesn't prove the defendant didn't commit the crime, so I'm not sure that it would have been helpful.

Should the trial lawyer have been embarrassed that his case was overturned?  After all, the defendant will get a new trial, and there's always a chance that if witnesses or evidence have disappeared, he may get a better plea offer or his case may not be retried at all.  If it helps your client, and doesn't provide much more than embarrassment to you (my acquaintance won't lose his job, so the only other consequences I can imagine are bad publicity and maybe an increase in malpractice rates), is that worth it?

Moreover, what if my acquaintance did, in fact, investigate the alibi?  What if the attorney did speak to one witness who said "We can't be sure that your client was at work that day - he missed a lot of days, and we don't keep those kind of records."  How would the appeal lawyer know that?  And, hence, how would the appellate court know?

I know that sometimes trial attorneys are called by appellate attorneys and are asked if they made certain decisions strategically or if they advised their client of certain things.  But if you don't know, you don't remember, or you didn't make any note of it, and it can help your client, is that a bad thing?

If I was called now about a case I handled a few years ago (pre-Padilla), and asked "Did you advise this client of the immigration consequences of this plea?" I would probably go through the file to refresh my recollection.  There are some cases where I would have to answer in the affirmative, if I had made specific notes to my file.  But there would be some, or many, files that would be silent as to the issue.  If I honestly don't remember, and it could save my client from deportation, is it a bad thing if the appellate court calls me ineffective for not advising my client or not making adequate notes?

I also don't know (and maybe a lawyer who handles appeals can tell me) whether raising this kind of issue on appeal invalidates the attorney-client privilege.  I believe that if a client sues you, you have the right to violate privilege to tell the court exactly what you and the client did or did not discuss with the client.  I haven't had either of these situations (knock on wood) so I haven't reviewed the ethical rules for these circumstances since law school.  So, what if the reason why you didn't investigate the client's alibi is because the client told you "Don't bother digging up that video, it will only show me committing the crime and I wouldn't want the prosecutor to find out about it."  Then, years later, he says on appeal, "If only my trial lawyer had gotten that video, that has now been destroyed, it would have shown that I didn't do it."  What is your role as the trial attorney?  Do you expose your conversation with the client, showing him to be a liar?  Or do you let your client get a new trial even if you'll take a beating from the appellate court, and possibly in the press and the blogosphere?


  1. This post is timely for me, because it echoes a conversation I recently had with a coworker. I've been assigned to my office's appellate unit for a few months, and have spent a lot more time thinking about ineffective assistance lately.

    Our state's supreme court recently issued it's first post-Padilla opinion on a collateral attack (in my reading of it, the court made defense counsel's job even more difficult than in Padilla). After reading the opinion, I was pretty convinced that the court had almost created an incentive to be ineffective. I mean, it's hard enough to figure out the immigration consequences for certain defendants, particularly if you're an over-worked public defender. But if it could provide your client a basis for getting out of an otherwise-valid plea, why would you want to diligently advise them? I know that it would be unethical to be deliberately "ineffective," but I don't think it's that much of a stretch.

    Regarding your other question, I would think it would depend on the state. In our state, an ineffective assistance claim made on direct appeal is limited to what's in the record from trial. On the other hand, in a collateral attack, either side can supplement the record without limitaitons. If the issue is ineffective assistance, it's pretty common for one side to attach a declaration from trial counsel. I think that most trial attorneys limit their declarations to that which is absolutely necessary for the issue on appeal. It seems to function as a limited waiver of privilege.

  2. Having just taken yet another bar exam and thus having studied the rules, an attorney can break the privilege when they have to defend against a malpractice suit brought by a client.

    As far as whether its a bad thing to be found ineffective -- I lost a robbery trial about a year and a half ago, and we naturally did not succeed on appeal. It was totally an eyewitness identification issue, and I didn't retain an expert. I thought we had a pretty solid defense, but maybe I should have gotten an expert. I've encouraged my client to file a habeas against me, because I'm not at all opposed to her doing whatever necessary to overturn her conviction. If my being found ineffective would get her out of prison, I'm down with that.

  3. If a client files a habeas petition, in my jurisdiction, they MUST WAIVE the attorney-client privilege if they wish to raise issues of ineffective assistance of counsel. If they refuse to waive the privilege, those claims related to ineffective assistance are dismissed with prejudice.

    If the issue is raised on appeal, I would think the same requirement would apply, particularly if the higher court was considering reversing the conviction and granting a new trial.

  4. In my state, the courts strongly discourage raising ineffective assistance claims on direct appeal, preferring to leave the issue to collateral review with a fully developed evidentiary record.

    In some instances, ineffective assistance can be raised in a motion for new trial (where the new trial motion is presented by counsel other than trial counsel). The courts treat an allegation of ineffective assistance as a waiver of privilege, but only to the extent necessary to determine the issue.

  5. Peter Sellers' Trial and Error highlights that very theme, in a British setting.

  6. In California, if a conviction gets reversed due to ineffective assistance, the appellate court is required to report the ineffective attorney to the State Bar for possible disciplinary proceedings.

    So yeah, I'd think twice about falling on my sword for the client.