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The Honest Defense: Confronting and Correcting Ineffective Legal Representation


Understanding Ineffective Assistance of Counsel


The legal concept of 'ineffective assistance of counsel' is straightforward: it means a lawyer failed to perform their duties effectively. Where a person has received ineffective assistance from their lawyer, they are entitled to some kind of relief. In the criminal context, that usually is a reversal of the conviction that the person presumably received because their counsel had been ineffective.


The Strickland Standard Explained


The foundation of understanding ineffective assistance of counsel lies in the Strickland standard, established by the U.S. Supreme Court in Strickland v. Washington (1984). This standard sets forth a two-pronged test to evaluate claims of ineffective assistance. Firstly, it requires demonstrating that the lawyer’s performance was deficient, falling below an objective standard of reasonableness. This standard doesn't concern minor errors or strategic disagreements; it's about significant blunders that fundamentally compromise the legal process. Secondly, there must be a showing of prejudice, meaning that the lawyer's shortcomings had an adverse effect on the outcome. In a trial, this could mean the difference between conviction and acquittal. In the context of a plea agreement, it might involve accepting a deal that wouldn’t have been taken if properly advised. This standard underscores my belief that a lawyer’s role is not just about going through the motions, but about delivering competent, impactful representation at every turn, whether in the heat of a trial or the nuanced negotiations of a plea deal.


Lessons from Early Career: My Legal Philosophy


In the early stages of my legal career, even before completing law school, I had the privilege of working with the Public Defender Service in the District of Columbia. As far as public defender’s offices go, PDS in DC is widely regarded as one of the best. They have better budgets than most PD offices and because of their location in the nation’s capital, they attract great talent. I had the honor of working under several wonderful, talented, and passionate attorneys. One such attorney taught me my philosophy on what my duty to my clients is, which encompasses my philosophy about ineffective assistance of counsel claims. In essence, my duty to my clients is to get them the best outcome I can while acting legally, ethically, and professionally. Full stop. How does this relate to ineffective assistance of counsel claims, you might ask. Thus, when I learn that a client has filed a claim of ineffective assistance of counsel against me, my initial reaction isn't to dispute it or deny any mistake. Instead, I think it is my responsibility to help the client pursue that claim to the best of my ability. If I screwed up and it cost my client, I need to make that right.


A Different Perspective on Ineffective Assistance Claims


It turns out that not all my colleagues view things the same way I do. Many attorneys will fight tooth and nail to avoid a finding that they were ineffective. Some attorneys will go so far as to lie about what they did or did not do in a case in order to protect themselves and their reputation. I will not do that. My clients know that I will not lie to help them and I will not lie to help myself. If a client claims I was ineffective and I was not, I will not say that I was. Nonetheless, I commit to honesty regarding my actions in my client's case. If it turns out I was ineffective, I embrace the opportunity to learn from it, ensuring more effective representation in the future, and to rectify the situation, helping my client achieve the best possible outcome.


Reflecting on a Personal Case Study


I recently was reminded of how my view on ineffective assistance claims is not necessarily the prevailing view. I had a client that I defended in trial about 10 years ago. This client was not a U.S. citizen, so the outcome of his case had the potential to affect his ability to remain in the country. Despite my best efforts, I could not persuade the prosecution to offer him a resolution of his case that would be “immigration safe.” Instead, we went to trial and unfortunately, we lost. I was then convinced that the damage to his immigration status was done. He had another aspect of his case pending, but instead of facing another trial, he chose to accept a plea deal, in line with my advice. Fast forward to 2023 and a dear colleague who is an immigration attorney is reaching out to me about this client to let me know I actually got it wrong and the case he lost at trial was not the thing affecting his ability to remain in the US, but rather the second thing that he took a plea to. I was mortified. Not because I was going to get called out for having given my client incorrect advice, but because I had misadvised a client in such a way that they were now facing removal from the country. My colleague, who is also a dear friend, was being extremely diplomatic and almost sheepish


 in asking me if I would be willing to submit a sworn affidavit to the court acknowledging my error. When he asked, I immediately said yes, because of course, I would. I needed to fix this for the client. He was so cautious with how he asked me that it made me reconsider if I was being a bit naïve about how willing I was to admit my mistake. However, I have concluded that the issue is not with me, it is with all of my colleagues who think that it is more important to protect their reputations and livelihood than it is to protect the interests of the client that they have committed themselves to helping. You cannot both be willing to take a bullet for someone and use that person as a human shield. This isn't to say I'd take a bullet for my clients – that goes beyond my professional role. However, I firmly believe that protecting my clients and their interests is a fundamental part of my job.


The Reality of Legal Practice and Client Commitment


The reality of the job is that despite a lawyer’s best efforts, there will be cases that the lawyer does not win. There will be clients who will go to prison (unless the lawyer does not practice in felony court) and there will be clients who will regret the choices they made about their case. I think of those clients of mine who have gone to prison and I wonder if they ever think of me and my role in their outcome. Whether they think of me or not is not my concern, but what I do not want is for any client to think that I put my well-being before theirs. I will not break the law for my clients. I will not lie for my clients. I will admit when I am wrong for my clients because that is what someone committed to helping their client should do.


Seeking the Right Legal Representation


If you or someone you love is going through the criminal system, you need to make sure the lawyer helping in the case is truly committed and not just out for themselves. If you are looking for that lawyer, give me a call.



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