Ineffective Assistance of Counsel

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Background

Poor lawyering contributes to a significant number of wrongful convictions.[1] In jurisdictions that have a constitutional right to counsel, a fair trial requires more than just mere the presence of a licensed attorney-at law. Courts have devised various standards to determine whether an attorney has provided effective assistance of counsel.

United States

Test for Ineffective Assistance of Counsel

In Strickland v. Washington,466 U.S. 668 (1984), the United States Supreme Court held that for a defendant to make out a claim of ineffective assistance of counsel, the defendant must show that 1) counsel's performance was deficient in that it fell below an objective standard of reasonableness and 2) that counsel's deficiencies so prejudiced his case so as to render the outcome of his trial unreliable and therefore unfair.

Generally proof of ineffective assistance of counsel will require the defense attorney to provide additional material to the court that is outside the appeal record.[2] However, in some instances ineffective assistance of counsel may so patently obvious from the record, that it can be raised on direct appeal without any additional evidence.

Per Se Ineffective Assistance of Counsel

If a defendant is unknowingly represented by an individual who claims to be a licensed attorney but is in fact not licensed in the jurisdiction, a court may reverse the case without regard for whether the defendant suffered any prejudice as a result of the fraudulent lawyer. Courts have generally recognized two rationales for the per se rule.

"[T]he rationale for [the per se] rule is not only the obvious violation of the right to a duly educated and licensed attorney, but also the danger to the right of effective assistance of counsel posed by the impostor's conflict of interest--he cannot be too zealous in representing defendant due to his fear that his zeal might trigger an inquiry that would disclose his fraud."[3]

This rule may even be invoked when a defendant is represented by two attorneys, only one of which is not actually a licensed attorney.[4]

In certain cases a technical defect, such as failure to pay bar dues or secure admission pro hac vice, will not trigger the per se rule. [5]. In one case, the rule was triggered when an attorney who resigned from the bar represented a client at trial. [6]

Is the per se rule triggered if an attorney is disbarred in one jurisdiction but continues to practice in another without reporting that disbarment to the local courts? Most courts have stated that the disbarment of an attorney in another jurisdiction does not even trigger the per se rule, even though most jurisdictions have adopted reciprocal disciplinary rules which virtually require reciprocal disbarment. As a result of this "loophole" an attorney who is disbarred in another jurisdiction has an incentive to hide their sister jurisdictional disbarment from the local court. Few courts have any means of actively discovering sister jurisdictional disbarment proceedings. In 1970, the American Bar Association's Clark Report recognized that reciprocal disciplinary hearings were meaningless without "[improved] exchange of information between disciplinary agencies concerning discipline imposed on attorneys admitted . . . in more than one jurisdiction".[7] An exchange must be established, but it must also have compliance from sister jurisdictions.

New York Test for Ineffective Assistance of Counsel

New York courts have adopted a rule somewhat more favorable to the defendant. The rule, which relies on language in the New York Constitution, "focuses on the fairness of the process as a whole rather than its particular impact on the outcome of the case. . . . [Thus]under our State Constitution, even in the absence of a reasonable probability of a different outcome, inadequacy of counsel will still warrant reversal whenever a defendant is deprived of a fair trial." [8]

Examples of Ineffective Assistance of Counsel

In each case where ineffective assistance of counsel is alleged, the criminal defense attorney must analyze the entire case. Following area just a few examples of reasons courts have concluded a defendant's right to counsel has been violated by ineffective counsel:

  • Failure to request hearing to suppress involuntary confession - People v. Miller, 11 A.D.3d. 729 (3rd Dep't 2004)

Notes