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Can a criminal defendant sue an attorney for malpractice?

In criminal law cases, the stakes for a defendant are very high indeed — and many defendants are not happy with any of their choices. Going to trial often seems too risky, while plea deals inherently have problems because they can leave an innocent defendant with a criminal record and other unpleasant consequences.

What happens, though, when a defendant believes that their criminal defense attorney wasn’t up to par? Can they sue for professional malpractice because they believe that an attorney somehow didn’t put enough effort into their defense?

Technically, yes, they can. Defendants may first argue for a new trial based on the ineffective assistance of counsel — although it’s rarely an easy course. Per the 1984 Stickland v. Washington decision by the United States Supreme Court, a defendant essentially has to prove that their attorney’s representation was both below a “reasonable level of competence” and caused some actual kind of prejudice against the defendant in order to win that appeal.

To sue for professional malpractice, however, the standard is even stricter. In California, a defendant would have to successfully show that they were innocent and wrongly convicted due to their attorney’s poor representation to be successful. (In many other states, a defendant must actually be convicted and then exonerated before they have a viable claim against their attorney for malpractice, while a few states simply set the “proximate cause” barrier for a viable claim of that nature very high.)

For the most part, this does offer criminal attorneys some protections from successful malpractice suits. As one attorney said, “The overwhelming majority of such cases were frivolous and contributed to a backlog of civil cases, particularly in federal court.” But a dearth of viable cases doesn’t mean “no cases at all,” and you may have to defend yourself (and your reputation) against such claims from time to time.

If you’re a criminal defense attorney accused of professional malpractice for the first time, it’s no-doubt a disconcerting experience. Experienced help is available.