Ineffective Assistance of Counsel

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Background

Poor lawyering contributes to a significant number of wrongful convictions.[1]


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.

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."[2]

This rule may even be invoked when a defendant is represented by two attorneys, only one of which is not actually a licensed attorney.[3]

New York Test

Notes

  1. http://www.innocenceproject.org/understand/Bad-Lawyering.php
  2. People v. Leslie, 232 A.D.2d 94, 97 (1st Dep't 1997)
  3. United States v Novak, 903 F2d 883 (2nd Cir. 1990)