Suing Your Criminal Defense Lawyer for Malpractice? You Better Have a Good Alibi

Cases of legal malpractice don’t get covered in the news as often as cases of medical malpractice. It’s easy to see why; legal malpractice rarely makes good television. Chances are, a lawyer isn’t going to leave a surgical instrument sewn up in a client’s body cavity (and if you know of any such cases – why aren’t you selling the movie rights?).

However, lawyers, like doctors, are learned professionals. And when they ply their trade, they’re expected to do so with a minimum level of diligence and competence. So, if a lawyer botches an otherwise good case by, say, forgetting to file a lawsuit until after the statute of limitations has expired, he or she is liable for any harm that such a failure causes to the client.

If an attorney commits malpractice in a criminal defense, the harm that this can cause to the client is severe, indeed. If an attorney botches a criminal case, this can lead to an innocent person going to prison, which is far worse than a simple financial loss.

In an interesting new case, a man who was convicted of armed robbery is suing his defense attorney, claiming that he was innocent, and the available evidence made his innocence clear, but his attorney botched his case. However, when an attorney is sued for malpractice, he has a right to raise every plausible defense, just like anyone else who’s being sued.

In this case, the former criminal defendant (now the plaintiff) claims that he had a good alibi, and that the firm that defended him failed to conduct an adequate investigation into his alibi, which, he alleges, would have yielded plenty of evidence to support it. His former attorney (now the defendant) sought to attack the factual basis of that alibi in his defense. His criminal conviction has already been overturned on appeal, and the state decided against pursuing a new trial, suggesting that he may well be innocent of the crime. An appeals court has just ruled that the attorney can raise evidence contradicting his former client’s alibi, in his own defense.

The fact that the defendant is able to raise this issue is interesting, because every criminal defendant, guilty or innocent, is constitutionally entitled to competent legal representation. So, if you’re filing a lawsuit against your former criminal defense lawyer that effectively alleges that he was incompetent, your guilt or innocence should not be relevant.

However, an appeals court has ruled that the defendant (the lawyer) can raise this issue? What’s going on?

Well, it might be time for a brief refresher in the law of professional negligence. Professionals, such as doctors and lawyers, are expected to abide by certain standards when plying their trade. They don’t need to be perfect, but given their education and special skills, they’re held to a higher standard of competence than your average Joe off the street would be.

So, if a lawyer does something in a case that no reasonable lawyer, with similar skills and education, would do in a similar situation, and that breach of the lawyer’s duty of care causes tangible harm to the client, the client can sue the lawyer for malpractice, and monetary compensation for harm caused as a result of the malpractice.

It should be noted that simply losing your case is not grounds for a malpractice suit against your attorney, just like a bad medical outcome is not, in itself, grounds for a medical malpractice suit – you must show that your lawyer (or doctor) was truly incompetent. So, if you lose simply because your case lacked merit, or the evidence to support your key claim or defense simply didn’t exist or couldn’t be found, you can’t really blame your attorney.

In addition to showing that the lawyer really, really messed up, you have to show that the screw-up actually caused harm. Obviously, if you prove that it caused you to lose an otherwise meritorious case, that’s enough.

And that’s where the issue of the evidence that our friend the criminal defense attorney comes in. By challenging his former client’s alibi, it seems that he is attacking the element of causation, which would make the issue of the client’s guilt or innocence relevant, despite the fact that the client had a right to competent legal counsel in either case.

After all, if the client’s alibi was actually false, or not as airtight as he would have us believe, the lawyer could argue that his failure to emphasize it in the trial made no difference, and that the client would have been convicted either way. If this is the case, the element of causation, essential to a successful malpractice suit, could be defeated.

So, what does this mean for clients? Well, it shows that, just because you lose your case, even if you lawyer didn’t take every imaginable effort (regardless of its likelihood of success) to win, he or she is not necessarily liable for malpractice.

And if you are predicating a malpractice suit on the claim that you had an airtight alibi and your lawyer failed to adequately investigate it, you better make sure that you alibi really is as airtight as you claim it is, because it seems that your lawyer, in defending against a malpractice suit, will be able to attack your claimed alibi.

As usual, the takeaway is this: think before you sue.

Incoming search terms for the article:

1 Response to “Suing Your Criminal Defense Lawyer for Malpractice? You Better Have a Good Alibi”


  1. 1 עורך דין פלילי

    I didn’t even know it’s possible to sue your own lawyer for that

Leave a Reply

*