Criminal lawyers: Clear communication your best defence against allegations of ineffective assistance
A substantial proportion of professional liability claims against criminal defence counsel are based on allegations of “ineffective assistance”. The jurisprudence makes it clear that poor lawyer-client communication is at the root of many of these claims.
Allegations of ineffective assistance are usually first tested in the context of the appeal of a conviction. Few of these appeals bear fruit (at least on this ground); but when they succeed, a claim against the lawyer often follows and can be very difficult to defend.
The test for overturning a conviction based on ineffective assistance was affirmed in R. v. Joanisse (1995), 102 C.C.C. (3d) 35 (leave to appeal to SCC refused), and is challenging. The appellant must prove
not only that counsel was ineffective to the point of incompetence, but also that the deficiencies in counsel’s representation contributed to a miscarriage of justice – in other words, that had counsel been competent, there was a reasonable chance that the outcome of the trial would have been different.
Many judges applying the test caution against viewing counsel performance through the lens of 20/20 hindsight. Nonetheless, some of these appeals succeed, and even those that don’t can be embarrassing and stressful. To minimize your chances of a claim, take extra care with the aspects of your representation most likely to attract a client’s criticism:
Failure to obtain or review Crown disclosure: Obtain full disclosure (including transcripts of video evidence, where appropriate), review it well before trial, and be certain that the accused understands it (have it translated, if necessary).
Failure to investigate potentially exculpatory evidence: Pay real and respectful attention to your client’s requests that you investigate potential evidence, regardless how outlandish the request or how irrelevant the evidence. Remember that your client is not well-equipped to judge the relevance, materiality, and prejudicial potential of evidence. If you don’t believe a proposed witness’s evidence will help, explain and document your reasoning. The same goes for requests to obtain phone records, security video footage, or any other evidence.
Failure to mount the defence requested by the client: If you and your client cannot agree on the choice of defence to present at trial, you are not ready for trial. Do not rely on a client’s lack of understanding of the process as an excuse for proceeding “your way” without this fundamental meeting of minds. If the client insists on a defence that, in your view, is destined to fail in circumstances where a different defence has a reasonable chance of success, to capitulate and proceed with the client’s preferred defence is dangerous. Come to an informed (and documented) agreement with the client in time to adjourn the trial and/or get off the record as permitted by the Rules of Professional Conduct.
Failure to call specific witnesses, including the accused: A review of 2013 ineffective assistance appeals suggests that the single most common allegation was a failure to call particular potential witnesses. Presumably, you have very good reasons for your witness choices. Be sure your client understands your reasons, and in particular your recommendation about whether or not to call the client him or herself. The jurisprudence also makes it clear that, when the accused is eager to see you pursue a line of questioning you feel is best avoided, it’s better to defend your decision BEFORE the witness takes the stand than to justify it afterward.
To avoid a claim, also remember:
- a little experience can be a dangerous thing: A client who knew nothing about criminal procedure, criminal law, the rules of evidence, or the relevant jurisprudence when you were retained will know more about these things by the time the verdict is returned. Some clients become critical, in hindsight, of the defence strategy. Investing time early on to educate the client about the process, the rules, and the applicable law can minimize this effect.
- it’s harder to criticize a joint strategy: Providing the client with reasons (ideally in writing) for your defence strategy makes it harder for him or her to allege that you acted without authority, that your choices were arbitrary or unreasonable, or that the client had no notice of what would happen at trial. Taking the time to explain your recommendations and to address client objections helps the client feel like a partner in his or her own defence. Remember that poor communication is at the root of most ineffective assistance claims. If you can demonstrate that the client was both listened to and advised, you will stand a better chance of avoiding a claim.
- if a former client appeals a conviction alleging ineffective assistance, the client’s new counsel may request that you swear an affidavit in support. This may be tempting if you are concerned about the risk of a claim and hope that an acquittal will avoid one. However, the admissions made in these affidavits can be very damaging if a claim does result. If you find yourself in this situation, call LAWPRO – not only because you have a duty to report the potential claim – but also because LAWPRO counsel can provide valuable advice about whether to provide an affidavit, and how to minimize the risk associated with one.
This article by Nora Rock (corporate writer & policy analyst at LAWPRO) originally appeared in the October 18, 2013 issue of The Lawyers Weekly published by LexisNexis Canada Inc.
July 16, 2015 at 9:27 am, Rachelle Reeves said:
Thank you for these tips. My older brother is a criminal defense lawyer. Sometimes he tells me about how frustrating his job can be, and that his clients can be hard to work with. Hopefully he can use good communication with his clients to avoid allegations against him.
September 28, 2015 at 6:00 pm, Linda Tucker said:
Thanks for sharing this advice on preventing a law suit with past clients over your performance. I had no idea that actually failing to call the accused up to the stand could end up causing trouble for you as an attorney. You would think that the client would understand the importance of you asking them questions on the stand, but you cannot assume that. Having that clear communication like you said, though, would definitely prevent any surprises either way.
October 14, 2015 at 3:02 pm, Lauren Woodley said:
Thank you for the various insights on how to improve the representation of claims. You talk about how failing to call specific witnesses is the single most common allegation. However, you add that most attorneys have good reasons for their witness choices. Thus, I think that being clear in your reasons and with your client will help you to communicate who should be called to witness so that you all are on the same page and the claim you are making is heard and is effective. Thank you for sharing!
December 28, 2015 at 1:52 pm, Veronica Marks said:
It’s so interesting that failure to call certain witnesses can make such a difference in a case. I like that the main idea overall in this article is to be on the same page as your client. I think that if more lawyers took the time to communicate well with their clients (and vice versa), they would find a lot more success in the courtroom.
January 21, 2016 at 10:37 pm, Skylar Williams said:
Nora, I really like how you mentioned to pay attention to the client’s request to investigate potential data even if it sounds ridiculous. In reality they are the one that truly knows what happened and if there is something that could possibly help the case it should be explored by all means. It seems like there is a lot that in criminal law, but the bottom line is that the lawyer and the client should always be on the same page.
July 23, 2016 at 9:20 pm, Smordin Law said:
Nice Blog post! Enjoyed reading it. Kudos!
March 02, 2017 at 4:38 pm, Adrienne said:
I concur that one of the biggest client complaints about their prior counsel was that they were impossible to get ahold of or that they didn’t communicate well even when they were reachable.