Criminal Law

Crim. Law Journal January 2021, Vol. 21, Issue 1


By Jennifer Roges*


Defense lawyers are charged with serving the "undivided interests" of his or her client, and not the personal interests of the attorney.1 However, the interests of the client and those of the lawyer somewhat diverge when a client brings a claim for ineffective assistance of counsel ("IAC").2 An IAC claim is "a claim that the previous lawyer has not been effective as required by the Sixth Amendment to the United States Constitution."3 IAC claims can pit the interests of the client against the interests of former counsel4 as the client wants to overturn his or her conviction to avoid depravation of life or liberty, while the defense lawyer wants to avoid being labelled as "ineffective."5 As such, these opposing interests create the following problem: should the previous lawyer continue to serve the interests of the client or serve the interests of the lawyer, namely the lawyer’s reputation? Recently, a California trial court rejected a defendant’s IAC claim, in part, by considering the negative professional effects that a finding of ineffective assistance would have on the defendant’s counsel.6 Accordingly, this paper examines whether harm to a defense lawyer’s reputation should be a separate factor in ruling on IAC claims.

A criminal defendant is constitutionally entitled to representation by counsel through the Sixth Amendment that provides: "In all criminal prosecutions, the accused shall enjoy the right . . . to have assistance of counsel for his defense."7 Although the Supreme Court interpreted this to mean the right to effective assistance of counsel,8 the Supreme Court did not provide guidance as to what constituted "effective assistance of counsel" until its decision in Strickland v. Washington.9 In Strickland, the court established a two-pronged test for determining an IAC claim.10 A defendant must show (1) that the previous counsel’s performance was deficient ("serious error" requirement) and (2) that the deficient performance prejudiced the defense ("prejudice" requirement).11 To successfully plead an IAC claim, the defendant must prove both prongs.12 If a criminal defendant can make both showings, then the defendant’s conviction will be vacated for not receiving effective counsel as guaranteed by the Sixth Amendment.13

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