So, a person is convicted by a jury of a serious offense, say murder, and he or she appeals that conviction based on ineffective counsel. I am curious as to how the original defense attorney feels about that. Do they get upset and consider it a slap in the face, or do they take the attitude that… “hey, whatever gets my client off”. If the appeal is successful is there some sort of admonishment to the original defense attorney?
I think it probably depends greatly on the specific facts alleged to constitute ineffective assistance of counsel, and whether the original counsel contests or admits those facts.
In other words, if the appellant says, via his new counsel, “My lawyer fell asleep while the prosecution witness was on the stand testifying to hearsay elicited by the prosecutor,” the original counsel might say, “Yes, I did,” or “That never happened.”
Since there is no way to know the answer to this, let’s move it to IMHO.
Colibri
General Questions Moderator
The only possible answer is “it depends”. There are lots of barely competent lawyers practicing law in the US but very few are singled out for ‘ineffective counsel’. I assume that most of these lawyers wouldn’t care what happens since they no longer are involved in the case. Whatever get’s their former client justice is all that really matters here.
There was a Law and Order where a lawyer appealed his own original defense of a case as incompetent.
I don’t remember anything else about it though.
Dennis Hawver told the Kansas Supreme Court, “I am incompetent!” (They agreed, and disbarred him.)
My understanding is that from a procedural standpoint, appeals based on ineffective counsel are explicitly not adversarial towards the old attorney. Courts and bar associations try to make it quite clear that those appeals aren’t a commentary on the original attorney, although of course the reason why they do go out of their way to say that is because there often are hard feelings.
Part of the issue is that ineffective counsel appeals and actual disciplinary action towards a lawyer are designed to determine two different things. With ineffective counsel appeals, the major hurtle is proving that ineffective counsel actually changed the outcome of the trial. It’s quite common that an attorney can make an “honest mistake” that will result in a successful ineffective counsel appeal, but face no disciplinary action. It’s also possible that an attorney can do something egregious like sleeping in court and face sanctions, but an ineffective counsel appeal can still be unsuccessful if the appeals court decides it didn’t affect the outcome.
Also with really serious crimes where you hear about “routine appeals,” ineffective counsel is one of the most common grounds, especially when public-provided attorneys are involved. In those cases there’s obviously no hard feelings, and often the original public defender will be an active participant since the claim usually revolves around insufficient resources given to the PD’s office, not necessarily the skill of that particular attorney.
Every single defense attorney knows and should be emotionally (egotistically) prepared for the “ineffective assistance” argument. It is a client’s last ditch appeal, usually. It is not personal (usually) and you should be prepared to do anything you can within ethical limitations to assist your client.
So this question is: 1) Is what your client claiming true? 2) Would it be considered ineffective assistance of counsel to do so, if true?
Attorneys make mistakes like any other professional, and there should be no hesitation - NONE - in admitting your mistakes. The reality is, about the only way you will get disbarred is if you steal money from your clients.
Personal Anecdote: I had been practicing in the public defender’s office for about four years. That means I was a pretty seasoned trial attorney at that point. Hypothetical client is arrested for a DUI 3rd, which is a felony in my jurisdiction.
Client was in a single car accident. Client gets out of car and stumbles home. Parents take him to hospital. Hospital does a blood draw. 0.21 BAC. Cops are called by ER staff.
Good facts: Parents were having a party that night and we could argue that he drank at the party before going to the hospital. The prosecutors would have a difficult time establishing that the blood draw happened within 3 hours of the driving behavior. Bum axle on the car could be used as excuse for accident.
Bad facts: Parents wouldn’t testify that they saw him drinking, just that it was possible. Dad would say that client was so badly injured he took him straight to the ER. Cops find a open, partially full bottle of jack daniels in the car. Client’s blood and hair were on the steering wheel and cracked windshield in front of the driver’s seat. In the hospital, defendant admitted to being the one driving the car when the accident happened.
In consulting with hypothetical client, I learned that he was an avid hunter and fisherman. I advised him about the risks of going to trial and potentially being convicted of a felony, and losing his right to own a firearm. I spoke with his parents and told my client that my opinion of their potential testimony would not be terribly persuasive.
I negotiated with the prosecutor, and got him to amend the charge to a DUI 2nd, with some extra suspended jail time, and a restricted license for 3 years. My client took the deal.
Unbeknownst to me, the DMV can administratively suspend your driver’s license indefinitely for a 3rd DUI, regardless of what was actually plead to in court. My client was pissed and wanted to take back his plea agreement. Judge said no. So he hired a lawyer and argued that he should be able to take back the plea based on ineffective assistance of counsel.
I took the stand. When asked if I advised my client that his license could be indefinitely suspended, I said absolutely not. I had no idea. When asked why I advised my client to take a plea, I indicated that in speaking with my client, it appeared that his right to bear arms was of paramount importance to him… and that it was not worth the risk of be convicted of a felony. I said that I felt terrible for not advising him about DMV; a mistake I would never make again. But that I still felt we made the right call about trial.
So the judge ruled that I was not ineffective. Because this hypothetical client received a huge benefit from the plea agreement (i.e., not being a convicted felon). I was actually hoping he would rule otherwise, actually. But there you go.
BINGO. Absolutely no hard feelings. The claims are almost always about lack of expert witnesses (which we have to ask the court for $$$ for, and the prosecutor gets to argue against it - talk about a conflict of interest), or some other resource.
But attorneys do mess up. We misread the law, or don’t see that second CD stapled to the first CD. There is no room for denying your errors. Shit happens. But as long as you don’t steal from your clients or routinely show up for court drunk, your license is pretty safe.