The Role of Trial Counsel in Ineffective Assistance of Counsel Claims: Three Questions to Keep in Mind

Abstract

A criminal defense lawyer's actions as trial counsel, apart from the substantive quality of his or her representation, can dramatically affect a defendant's ability to later claim ineffective assistance of counsel (IAC). Several ethics rules apply to these actions, and US Supreme Court decisions that recognize ABA Performance Standards as guides to reasonable professional practices by counsel make violations of these rules potentially ineffective assistance. The article addresses actions counsel may take at three key points in a representation: before the engagement, during the engagement and the representation, and after the representation. This article examines recurring situations at each of these points, including conflicts between existing and new clients before the engagement, protecting the client's right to pursue future IAC claims and waivers of postconviction rights during the representation, and preservation, retention of and access to the file by former clients. Counsel's obligations are assessed according to ethics rules, opinions of state ethics bodies and judicial decisions.

Keywords: Ethics, Ineffective Assistance of Counsel, Conflicts, Waiver, Postconviction