Whenever you retain an attorney for a legal matter, you expect your counsel to meet at least a minimum level of competence in handling your case. When your claim or matter does not turn out as you expected or you know or at least suspect that your attorney’s conduct and handling of your case was negligent or less than competent, you may have a claim for relief.
The possible avenues for relief for an aggrieved client may be ineffective assistance of counsel or legal malpractice. Ineffective assistance of counsel only applies in criminal matters. Under the federal and state constitutions, you have a legal right to be represented by an attorney in most criminal matters. The U.S. Supreme Court has also ruled that criminal defendants must be afforded effective assistance of counsel. But in civil matters, your relief can be a claim against your attorney for legal malpractice.
What Constitutes Ineffective Assistance of Counsel?
If you are indicted or otherwise charged with a criminal offense, your freedom, reputation, and future opportunities may be at risk. Under our system of laws, you may retain an attorney of your choice or have one appointed for you if you are indigent. In Massachusetts there is also a sliding scale in which you pay a portion of your attorney’s fees. In either case, you are also entitled to effective or competent representation, meaning that the attorney handling your case must meet an objective standard of competence. The following are examples of ineffective assistance of counsel:
- Continually falling asleep during the trial
- Appearing in court while under the influence of drugs or alcohol
- Failure to investigate the facts and circumstances of your case or to locate favorable witnesses
- Not informing the client of an offered plea deal
- Failing to challenge the admissibility of harmful evidence that should not have been admitted
- Failing to rebut evidence presented by the prosecution
- Failure to research the law that would have led to the exclusion of certain material or inculpatory evidence
- Failing to advise the client of the immigration consequences of pleading guilty or in accepting a plea agreement
- Failing to advise the client that accepting the plea agreement would result in mandatory jail or prison time
- Neglecting to request a material jury instruction on a viable defense that would have altered the outcome
It is up to the defendant to show that the attorney’s conduct or performance prejudiced the defendant and was so serious as to deprive the defendant of a fair trial. In other words, but for the attorney’s poor performance, the trial would reasonably have resulted in a different outcome. However, if the attorney’s errors or omissions were such that the trial outcome would not have been different, then a court will likely find that there was no ineffective assistance of counsel.
The remedy for a defendant where a court finds her attorney’s handling of the case amounted to ineffective assistance of counsel is habeas corpus relief, vacating of the guilty verdict, and granting of a new trial. There is no monetary compensation to be awarded.
It is possible that a criminal defendant can file a legal malpractice claim against his or her attorney. Note that in addition to finding negligence, as described below for legal malpractice, in a claim against your prior criminal defense attorney you must also prove that you were innocent.
We have won legal malpractice claims against criminal defense attorneys.
Legal Malpractice in a Civil Case
In civil matters, failing to meet the standard of care expected is referred to as legal malpractice. Similar to the obligations of a criminal defense attorney, a civil attorney representing her client must exercise a certain level of competence ordinarily expected of, and practiced by, other civil attorneys in similar cases. In many cases, an expert may have to testify as to the relevant standard of care. If the attorney’s performance fell below that standard of competence, then the claimant must demonstrate that but for the inept performance, the outcome would have been favorable to the claimant, and she would not have suffered the harm that resulted.
Examples of legal malpractice are:
- Failing to inform the client of a conflict of interest
- Not investigating the facts of the claim or interviewing witnesses
- Failing to research the relevant law
- Failing to communicate or to provide material information about the case to the client
- Missing deadlines
- Failing to appear in court resulting in dismissal of the claim or the exclusion or introduction of evidence that should not have occurred
- Misusing the client’s funds
- Committing fraud
- Not filing a compulsory counter-claim
- Settling a case without the client’s knowledge or consent
Not every act of misconduct or omission rises to the level of legal malpractice, especially if you cannot show that a more favorable outcome would more than likely have resulted if the attorney had acted differently. Also, you must demonstrate that you were harmed or suffered a financial loss and that your damages are not speculative. Consulting with an experienced legal malpractice attorney is essential to determine if legal malpractice was committed and that you have a reasonable chance of prevailing and collecting significant damages.
Retain a Legal Malpractice Attorney from the Law Office of Burns and Jain
Legal malpractice claims are difficult and often involve complex issues. In some cases, your attorney must be prepared to try the underlying case where the malpractice allegedly occurred before you can recover the compensation denied to you. Consult a seasoned and knowledgeable legal malpractice attorney from Burns and Jain about your attorney’s performance by calling us at (617) 227-7423.