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Can You Sue Your Criminal Defense Lawyer?

By Christopher Coble, Esq. | Last updated on

When our finances and our freedom are on the line, we need our attorneys to be at their very best. Criminal defense attorneys are tasked with zealously advocating for their clients, making sure defendants receive the full protection of the law, and, in many cases, proving their innocence.

Obviously, criminal defense lawyers don't win every case, and a conviction doesn't mean the lawyer wasn't trying her best. But there are times when a defense attorney commits malpractice. So how can criminal defendants distinguish between a bad case and a bad lawyer? And what can they do about it?

Ineffective Assistance or Malpractice?

In the criminal context, there are two different ways to describe a bad lawyer: ineffective assistance of counsel and legal malpractice. While the two can go hand in hand, they are distinct legal claims. Ineffective assistance of counsel can be the basis for appealing a criminal conviction. If you can prove your attorney's mistakes or incompetence were the reason you lost your criminal case, you may be able to get your conviction overturned.

There are generally five bases for a claim of ineffective assistance of counsel:

  • Your lawyer made decisions without consulting you;
  • Your lawyer filed motions, responses, or notices late, or not at all;
  • Your lawyer behaved unprofessionally;
  • Your lawyer repeatedly failed to communicate with you; or
  • Your lawyer gets terminology or procedure wrong.

While some of these actions can also indicate legal malpractice, those claims are brought in civil court, where a client sues his lawyer for falling below the standard of legal professionalism.

Bad Lawyer Lawsuits

There are four essential elements to a legal malpractice claim based on negligence:

  1. Your lawyer owed you a duty to provide competent and skillful representation;
  2. Your lawyer breached the duty by acting carelessly or by making a mistake;
  3. Your lawyer's breach caused you injury or harm; and
  4. The harm caused a financial loss.

Where legal malpractice claims in the criminal context get tricky is that third element. Essentially, you must prove that it was the lawyer's action or mistake, and not some other factor, that led to your conviction or losing your case.

If you think you've received substandard legal representation in a criminal case, contact a new lawyer to review your case.

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