Ineffective Assistance of Counsel

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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

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] A criminal defense attorney may introduce this additional evidence by either 1) filing a motion for a new trial, 2) a collateral action challenging a conviction or 3) a remand to the original court in order to reopen case. 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.

A criminal defense attorney should not be able to raise his or her own ineffective assistance of counsel in a later proceeding, as this is generally considered a non-waivable conflict of interest.

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.

The per se rule may also apply if the state interferes in the defendant's right to counsel in such a way that results in a depriviation of the right. Thus, in Herring v. New York [8], the Supreme Court applied the rule to strike down a statute that denied the defense attorney a right to make a closing argument in a bench trial. And in Geders v. United States [9], the Supreme Court reversed a trial conviction without looking at the prejudice when the judge blocked the defense attorney from communicating with his client during a recess between direct and cross-examination of the defendant.

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." [10]

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)

See Right to Counsel


  2. See N.Y. C.P.L. § 440.10
  3. People v. Leslie, 232 A.D.2d 94, 97 (1st Dep't 1997) but see People v. Jacob, 6 N.Y.3d 188 (2005)
  4. United States v. Novak, 903 F2d 883 (2nd Cir. 1990)
  5. People v. Kieser, 79 N.Y.2d 936 (1992)
  6. In Re Johnson, 1 Cal. 4th 689 (1992)
  7. ABA Special Comm. On Evaluation of Disciplinary Enforcement, Problems and Recommendations in Disciplinary Enforcement (Final Draft 1970), 2.
  8. Herring v. New York, 422 U.S. 853 (1975)
  9. Geders v. United States, 425 U.S. 80 (1976)
  10. People v. Caban, 5 N.Y.3d 143 (2005