Effective counsel

SIGNIFICANCE: All persons charged with the commission of crimes have a constitutional right to have lawyers who are qualified and competent to represent them.

Everyone charged with a crime in the United States is entitled under the U.S. Constitution to have a lawyer represent them, because having a lawyer has been held essential to ensuring a fair trial. The presence of lawyers on both sides of a case improves the fairness of a trial, enabling the adversary system to function as well as possible so that guilty persons can be identified and innocent persons set free. But because the presence of a lawyer only improves the fairness of a trial if the lawyer is qualified and competent, the U.S. Constitution has been held to guarantee not just the assistance of a lawyer but also the assistance of a competent lawyer, whose loyalty to the client is undivided and whose efforts on the client’s behalf are not unduly restricted. This representation is termed “effective” assistance of counsel, and representation that does not meet this standard is described as “ineffective.” If persons are convicted of a crime and their lawyers were constitutionally ineffective, these persons may have their convictions set aside and be eligible to receive new trials.

The Constitutional Right to Effective Counsel

The American model of criminal justice is based on the adversary system. This system requires attorneys on opposing sides who vigorously present their views of the law and the evidence. When one side is represented by lawyers who fail to present their parties’ arguments, the adversary system may not function properly in reaching the truth. Such lawyers are said to be “ineffective,” and the persons they represented are deprived of their constitutional right to effective assistance of counsel.

The guarantee of effective assistance of counsel applies only in criminal cases, because it is only in criminal, as opposed to civil, cases that persons have a right to be represented by lawyers. Regardless of whether criminal defendants can afford to hire (or “retain”) their own lawyers or whether they cannot afford to do so and must have lawyers appointed for them by the court, the right to be represented has been held to be a guarantee of competent counsel.

How Counsel Can Be Ineffective

Lawyers can fail to provide effective assistance in any of three general ways. First, they can be ineffective because of a conflict of interest—something that prevents them from fully and zealously representing the interests of their clients. Second, lawyers can be ineffective if a judge restricts their ability to be effective—by preventing them from fully and zealously advocating on behalf of their clients. Third, lawyers can be ineffective through lack of competence to handle particular cases or types of cases.

Lawyers are ethically obligated to fully and zealously advocate first and foremost for the interests of their clients. Sometimes lawyers can have conflicting interests—for example, by representing more than one client in a case. If lawyers must choose between advancing the interests of one client or another, the client whose interests were not made the first priority may have received ineffective assistance of counsel. Besides making lawyers ineffective, conflicts of interest may also violate ethical rules and can be a basis for sanctions or penalties against such lawyers. Conflicts may result in lawyers’ negligent performance of professional responsibilities and can be a basis for a civil action by clients against their lawyers for malpractice. Courts also have made lawyers ineffective—for example, by preventing them from making closing arguments in bench trials (nonjury trials decided by judges alone) or by appointing lawyers shortly before trial and forcing them to proceed with their defense despite inadequate preparation. These practices have been found to render lawyers’ assistance in such circumstances ineffective.

Effective Counsel and Successful Counsel

While conflicts of interest and court restrictions on lawyers’ work can make lawyers’ assistance ineffective, the most controversial area of ineffective assistance has dealt with incompetent or unqualified counsel. Incompetence can lead to mistakes, such as inadequate investigation of a case, failure to call certain witnesses, or inadequate presentation of evidence. Not all mistakes, however, render lawyers ineffective.

The U.S. Supreme Court has held that the Constitution guarantees defendants the right to have a lawyer who is competent but not necessarily successful. The Constitution guarantees only a fair trial, and if lawyers make trials fair—despite losing—they are considered constitutionally effective. For the purpose of establishing effectiveness, the Court has ruled that lawyers make trials fair by meeting the general level of professional performance of other lawyers. Lawyers need not do what the best lawyers or those with the most resources would do if they were handling the same case.

In the 1984 case of Strickland v. Washington , the U.S. Supreme Court created the standard by which lawyers’ effectiveness was to be measured. The Court made it harder to bring successful claims against lawyers by requiring proof of “prejudice.” Prejudice is the legal term for harm resulting from lawyers’ mistakes or inaction. To find a lawyer ineffective, the Court required more than proof that the lawyer’s performance was worse than that of most lawyers. It further required that this poor performance “prejudiced” or harmed the defendant, specifically by making it more likely that the defendant would be convicted.

Ensuring Effective Assistance of Counsel

A challenge to lawyers’ effectiveness usually comes only after cases have been concluded and only when they result in convictions. Determining whether a lawyer was competent requires another proceeding, such as another trial, at which testimony and evidence are presented about the lawyer’s work on the case. In such proceedings, lawyers often become principal witnesses. These proceeding are civil rather than criminal cases, even though they concern what happened in criminal trials. They can be held in either federal or state courts if the conviction originally occurred in state court (as most convictions do) and can result in the issuance of a writ of habeas corpus (a writ permitting prisoners to challenge wrongful convictions) if the reviewing court finds that lawyers’ assistance was ineffective. A 1995 U.S. Department of Justice study of approximately half of all petitions for writs of habeas corpus in federal courts found that the largest percentage of such petitions, 25 percent, involved claims for ineffective assistance of counsel. Very few claims of ineffective assistance, however, are successful.

Bibliography

American Bar Association. Model Rules of Professional Conduct and Code of Judicial Conduct. Chicago: American Bar Association, 1992. Compilation of the codes establishing rules of ethics for lawyers. See also the ABA’s Code of Professional Responsibility and Judicial Conduct (Chicago: American Bar Association, 1977).

Freedman, Monroe H., and Abbe Smith. Understanding Lawyers’ Ethics. 3d ed. Newark, N.J.: LexisNexis, 2004. A compact treatment of lawyer’s ethics, including chapters on prosecutors’ ethics and the client perjury problem.

"Ineffective Assistance of Counsel (IAC)." Legal Match, 25 Oct. 2021, www.legalmatch.com/law-library/article/ineffective-assistance-of-counsel.html. Accessed 26 June 2024.

Strom, Samuel. "The Right to Counsel." FindLaw, 20 Oct. 2023, www.findlaw.com/criminal/criminal-rights/the-right-to-counsel.html. Accessed 26 June 2024.

Taylor, John B. Right to Counsel and Privilege Against Self-Incrimination: Rights and Liberties Under the Law. Santa Barbara, Calif: ABC-Clio, 2004.

Tomkovicz, James J. The Right to the Assistance of Counsel: A Reference Guide to the United States Constitution. Westport, Conn.: Greenwood Press, 2002.

Wolfram, Charles. Modern Legal Ethics. St. Paul, Minn.: West, 1986. A treatise on legal ethics that addresses ethical obligations of prosecutors and defense attorneys in some detail.