The (So-Called) Liability of Criminal Defense Attorneys: A System in Need of Reform

53 Pages Posted: 18 Aug 2010

Date Written: August 16, 2010

Abstract

There are essentially three levels at which to assess poor criminal defense lawyering: the constitutional level, the civil level, and the disciplinary level. Each of these levels has different mechanisms for evaluating the conduct of criminal defense attorneys: (1) at the constitutional level, by means of an ineffective assistance of counsel claim; (2) at the civil level, by means of a criminal malpractice claim; and (3) at the disciplinary level, by means of a disciplinary action against the attorney. Unfortunately, the existence of this three-level system of safeguarding has done little to promote respectable criminal defense lawyering and has done even less to encourage the continued improvement of the criminal defense bar. Although unsettling, it is intellectually easy to explain why criminal defense lawyering is lacking: (1) ineffective assistance of counsel claims are difficult to win; (2) criminal malpractice claims are even more difficult to win; and (3) referrals to appropriate disciplinary bodies are both infrequent and unsuccessful. As they currently exist, the ‘safeguards’ at the constitutional, civil, and disciplinary levels provide little monitoring of the criminal defense bar. Left unwatched, there is little incentive or hope of improving the quality of criminal defense lawyering. After detailing a few examples of poor lawyering, this article examines the ‘safeguards’ currently in place at each level and discusses how the existence of these ‘safeguards’ may erroneously lead one to believe that the system is actively monitoring criminal defense lawyering. It goes on to suggest how the legal system may begin to monitor the conduct of criminal lawyers more effectively, an undertaking that will improve the quality of criminal defense lawyering generally. These changes should include abolishing the collateral estoppel effect of an ineffective assistance of counsel claim to bringing a criminal malpractice action; abolishing the actual innocence prerequisite to bringing a criminal malpractice claim; permitting a criminal defendant to file an ineffective assistance of counsel claim and a criminal malpractice claim jointly; encouraging trial judges to be more conscientious in reporting and documenting poor criminal defense lawyering that they witness in their courts; and implementing an automatic referral system whereby lawyers accused of providing incompetent representation are routinely referred to the appropriate disciplinary body. Our system as it currently exists does a poor job of monitoring the conduct of criminal defense lawyers. Creating a system that has in place meaningful safeguards will necessarily improve the legal representation that criminal defendants receive.

Keywords: criminal defense lawyering, ineffective assistance of counsel, lawyer discipline, criminal malpractice, disciplinary system, legal professionalism

Suggested Citation

Duncan, Meredith J., The (So-Called) Liability of Criminal Defense Attorneys: A System in Need of Reform (August 16, 2010). Brigham Young University Law Review, Vol. 2002, p. 1, 2002, U of Houston Law Center No. 2010-A-2-, Available at SSRN: https://ssrn.com/abstract=1659972

Meredith J. Duncan (Contact Author)

University of Houston Law Center ( email )

4604 Calhoun Road
4604 Calhoun Road
Houston, TX 77204-6060
United States

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