§5.5 Ineffective Assistance of Counsel

• Jurisdiction: Washington

V. INEFFECTIVE ASSISTANCE OF COUNSEL

RPC 1.1 requires that lawyers provide "competent representation to a client," and competent representation "requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation," as discussed in Section II. of this chapter. Further, as discussed in Chapter 15 on legal malpractice, an attorney who does not represent a client with "that degree of care, skill, diligence and knowledge commonly possessed and exercised by a reasonable, careful and prudent lawyer in the practice of law in this jurisdiction" may be civilly liable for malpractice.⁹¹ Constitutional protection of criminal defendants requires additional analysis concerning the competence of criminal defense lawyers.

The Sixth Amendment guarantees criminal defendants "the assistance of counsel."⁹² Such assistance must be "effective,"⁹³ regardless of whether counsel is retained or appointed,⁹⁴ and has been held to apply to counsel on a first appeal as well.⁹⁵ However, as we will see with malpractice analysis, there must be a causal connection between any deficiency in the representation and harm to the client. In fact, courts are even more reluctant to find such harm to the client in a criminal case when it is believed that there is sufficient evidence of the defendant's guilt. Thus, in malpractice cases, a lawyer's "ineffectiveness" must have proximately caused harm to the client, whereas a convicted defendant must show that but for the lawyer's ineffectiveness he would have fared better in the criminal trial or appeal, except if the ineffectiveness was due to a conflict of interest.⁹⁶

Up until the last quarter of the 20th century, courts would not reverse a criminal conviction unless defense counsel's ineffectiveness was "of such a kind as to shock the conscience of the Court and make the proceedings a farce and mockery of justice."⁹⁷ But in the leading case of Strickland v. Washington,⁹⁸ the U.S. Supreme Court established a less onerous burden for criminal defendants:

A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.⁹⁹

The "proper standard for attorney performance is that of reasonably effective assistance," and a guilty plea can only be attacked if the lawyer's legal advice was not that of a "reasonably competent attorney" and "not within the range of competence demanded of attorneys in criminal cases."¹⁰⁰ More specifically, defense counsel has the overarching duty to advocate the defendant's cause and the more particular duties to consult with the defendant on important decisions and to keep the defendant informed of important developments in the course of the prosecution. Counsel also has a duty to bring to bear such skill and knowledge as will render the trial a reliable adversarial testing process.¹⁰¹

Although the test for ineffective assistance in Strickland represents an improvement over the "farce and mockery" standard, in practice it is not necessarily much more advantageous to criminal defendants. Rather, the Court's requirement that those convicted must overcome a strong presumption that any challenged action "might be considered sound trial strategy"¹⁰² has resulted (as discussed below) in courts' denial of ineffectiveness claims when defense counsel's conduct was at the least highly questionable.

Even if a criminal defendant is able to meet the heavy burden of showing ineffectiveness, the conviction will not be set aside unless any deficiencies in the lawyer's performance can be shown to have been "prejudicial to the defense."¹⁰³ To show "prejudice," the defendant "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome."¹⁰⁴ The combination of (1) an ineffectiveness standard that is very deferential to defense counsel and that indulges a presumption that questionable decisions and conduct by a defense lawyer involved "reasonable" tactical decisions and (2) an unwillingness to find even ineffective representation "prejudicial" has resulted in courts denying ineffective assistance of counsel claims despite some pretty incompetent representation.

In 2010, however, the U.S. Supreme Court departed from its restrictive application of the ineffective assistance standard in holding that, for purposes of an ineffective assistance of counsel claim, defense counsel has a critical obligation to advise the client of the advantages and disadvantages of a plea agreement.¹⁰⁵ Because "[t]he weight of prevailing professional norms supports the view that counsel must advise her client regarding the deportation risk,"¹⁰⁶ counsel's failure to do so when deportation was presumptively mandatory fell below Strickland's objective standard of reasonableness.¹⁰⁷

If defense counsel had an actual conflict of interest, the burden on the defendant to show prejudice is easier to meet. A series of U.S. Supreme Court cases created an intricate set of rules and presumptions in cases in which defense counsel's potential or actual conflict was challenged as resulting in ineffective assistance of counsel. In Holloway v. Arkansas,¹⁰⁸ the trial court had appointed a public defender to represent three defendants in the same trial. Although the lawyer repeatedly noted a conflict of interest, the trial judge refused the lawyer's request that separate counsel be appointed. The Supreme Court held that the trial court's failure to investigate the alleged conflicts required reversal without any need to demonstrate prejudice.

The Court in Holloway, however, left open the question of whether prejudice would be presumed whenever a potential conflict existed, even if the conflict was not called to the attention of the judge. The Court in Cuyler v. Sullivan¹⁰⁹ made it clear that although Holloway required "state trial courts to investigate timely objections to multiple representation ... nothing in our precedents suggests that the Sixth Amendment requires state...