Criminal Justice Insider

An in-depth review and analysis and of emerging topics in both federal and New York State criminal law. This blog explores developments in substantive and procedural criminal law, providing practical insights to the latest case law and statutory changes.

Criminal Incompetence: What Happens When Criminal Defense Attorneys Make Mistakes


As the old saying goes, “nobody’s perfect.” However, when a lawyer makes a mistake, especially in the context of a criminal proceeding, the ramifications for the client could be life changing. A defendant in a criminal case is at risk of a criminal record, financial forfeiture, and even incarceration. What is the recourse for a client whose criminal defense attorney makes a mistake during the course of representation?

One might think that the client of a criminal defense attorney who made a critical mistake is entitled to financial compensation by way of a lawsuit for malpractice. This may ultimately be true, but the path to such compensation is long and extremely difficult path.

The Sixth Amendment guarantees that every criminal defendant is entitled to effective assistance of counsel. If a criminal defense attorney’s representation was ineffective, a defendant can have his/her conviction overturned and receive a new trial. To be ineffective, a trial lawyer's performance must fall below an "objective standard of reasonableness," and there must be "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668 (1984). Put differently, a criminal defense attorney renders ineffective assistance when he/she makes a serious error such that it there is a likelihood it would have led to a different outcome. Notably, minor errors or strategic judgments do not generally rise to the level of ineffective assistance sufficient to overturn a conviction.

Even if a conviction is overturned, it does not mean that a defendant can sue his or her attorney for malpractice. If a defendant can show that his/her lawyer rendered ineffective assistance, the defendant can get a new trial. However, in order to sue a criminal defense attorney for malpractice, the defendant must demonstrate “actual innocence.” Carmel v. Lunney, 70 N.Y.2d 169, 173 (1987). In New York, actual innocence means that the defendant has to prevail at the subsequent trial or have his/her new conviction overturned in a post-trial motion or appeal. Hoffenberg v. Meyers, 73 F. App’x 515, 516 (2d Cir. 2003). So long as a defendant remains under indictment or with a valid conviction, the defendant cannot sue his/her criminal defense attorney for malpractice.

To answer the question posed at the start of this article, the recourse for a defendant whose criminal defense lawyer made a mistake is very limited. Even if that mistake landed them in jail, they must first prove their “actual innocence” by vacating their conviction, before they can seek financial compensation from their criminal defense attorney.

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11.09.2020  |  PRACTICE AREAS: Criminal Defense

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