Protecting Against the Inevitable Ineffective Assistance of Counsel Charge

Protecting Against the Inevitable Ineffective Assistance of Counsel Charge

It’s not “if”, but “when” when it comes to being a criminal defense attorney. The Sixth Amendment of the United States Constitution guarantees the right to effective assistance of counsel for all individuals facing criminal charges. Ineffective assistance of counsel claims arise when a defendant believes that their attorney’s performance fell below the standard of competent representation, resulting in a violation of their constitutional rights.

It isn’t personal. A client who finds themselves facing a long sentence will cling to any hope of getting out. You may be the best lawyer in the world and they will still question your performance. When that day comes, you will be glad to have taken a few simple steps, now. The keys to protecting yourself from these allegations boil down to three (3) things, establishing a strong attorney-client relationship, building a record, and thorough documentation.

Good record building and file keeping may not come naturally to every lawyer. It is easy to become complacent, particularly when most of your practice focuses on relatively minor cases. With practice, though, these practices can become habit with practice.  You will be grateful for these habits when the day comes that your client questions your performance.

What the Defendant Must Show

When a defendant claims that their lawyer did not provide effective help after being found guilty at trial it hinges on two main factors. First the defendant must prove that their lawyer’s performance was below standard. This means showing that the lawyer made mistakes that prevented them from fulfilling their role as guaranteed by the Sixth Amendment. Second, the defendant must demonstrate that these mistakes harmed their defense. The standard for harm is whether there is a chance that without the lawyer’s errors the trial’s outcome would have been different. This chance should be strong enough to cast doubt on the trial’s fairness.

When a defendant pleads guilty or no contest instead of going to trial they still have to meet these same standards. In this case the focus shifts to how the lawyer’s ineffective performance influenced the plea process. To meet the harm requirement the defendant needs to show a likelihood that without their lawyer’s errors they would not have pleaded guilty and would have chosen to go through with a trial instead.

When deciding if it’s likely the defendant would have chosen to go to trial, a court will look at all aspects of the plea deal. This includes things like how strong the defense would have been in court, the discussions between the defendant and the judge during the plea, and comparing the sentence from the plea deal to what could have been given after a trial.

Establishing a Strong Attorney-Client Relationship

One of the key defenses against allegations of ineffective assistance of counsel is to demonstrate a strong and professional relationship with the client. Attorneys should maintain open communication, keep their clients informed about the progress of the case, and involve them in strategic decision-making. By showing that the client was actively engaged in their defense, attorneys can refute claims of negligence or incompetence.

Attorneys must be able to demonstrate their competence and diligence in handling the case. This includes conducting thorough legal research, preparing a strong defense strategy, and zealously advocating for the client’s rights. Keeping detailed records of all actions taken in the case can help attorneys prove that they fulfilled their professional obligations and provide effective representation.

In complex or challenging cases, attorneys can bolster their defense against ineffective assistance of counsel allegations by seeking expert opinions and consultations. Consulting with other legal professionals and experts in relevant fields, or conducting additional research, can demonstrate that the attorney has taken all necessary steps to provide competent representation to the client.

If mistakes were made during the course of representation, attorneys should take responsibility for their actions and work towards rectifying any errors. By acknowledging and addressing any shortcomings in their performance, attorneys can show a commitment to upholding professional standards and providing quality representation to their clients.

By establishing a strong attorney-client relationship, demonstrating competence and diligence, seeking expert opinions, and addressing mistakes proactively, attorneys can effectively defend against such claims and uphold their professional integrity.

Building a Record

In legal proceedings, a defendant cannot claim relief based on an allegation of ineffective assistance if the record shows that their counsel performed the actions the defendant contends were neglected. Similarly, defendants cannot seek relief for ineffective assistance of counsel due to failure to preserve matters for appeal, as they cannot demonstrate prejudice at the trial level for such allegations.

While a defendant’s statement expressing satisfaction with their counsel’s representation is not sufficient to conclusively refute an allegation of ineffective assistance, including other relevant information in the record allows the court to promptly dismiss certain claims. For instance, if the record indicates when plea offers were conveyed and rejected, it enables summary denial of allegations related to failure to convey a plea offer. Likewise, when the record specifies the maximum sentence a defendant faces, it may lead to the summary denial of allegations based on bad advice of counsel.

As such, when closing out a case or before proceeding to trial, you should consider placing a few things on the record. You may have the court inquire if there are additional witnesses to interview, motions to file, or defenses that have not been discussed with your client. While it may not be dispositive, it can aid in the determination. Anything that can be refuted by the record reduces the need for an evidentiary hearing.

Documenting Your File

When the claim for ineffective assistance of counsel cannot be conclusively refuted by the record, the court will need to hold an evidentiary hearing. Once the defendant has met the burden of placing competent, substantial evidence on the record, the burden shifts to the state. In this case, the state will likely call you, the defense attorney. When that happens, it will be beneficial to have a well-documented file. A well-documented file will not only aid in your recollection, but give confidence to the court in your recollection. A case that is fresh in the mind now may completely escape the memory by the time the 3.850 is heard, often years late.

There are any number of things you may discuss with your client. What matters are the things that will affect the case. Every communication with your client should be noted, particularly the content.  Particularly worth noting are any discussion about witnesses, defenses, and plea offers are particularly worthy of noting. Where possible, one should get in the habit of following up with written documentation to the client. At the very least, the file should have a place for the attorney to note the content of communications with clients. For witnesses, it is wise to have a witness list of all potential witnesses and a note regarding what investigation, if any, was done.

A common source of attack is plea offers. Written communication of plea offers should generally also recite the minimum and maximum sentences where known. This will provide a clear line of communication which will refute client claims regarding failed communication of the offer or the maximum sentence.


Allegations of ineffective assistance of counsel can have serious consequences for both attorneys and their clients. Adhering to ethical standards, maintaining professionalism, and continuously striving to improve one’s legal skills are essential for attorneys to provide effective assistance to their clients and protect their reputation in the legal community. Good habits form when you’re acting as a misdemeanor DUI lawyer and translate to the most major cases. By endeavoring to incorporate strong attorney-client relationships, good record building, and proper file documentation into your everyday criminal practice, you can not only protect yourself, but bolster the integrity of the justice system.

By Sean Clayton, Esq.

Criminal Defense Attorney

The Law Office of Sean Clayton, P.A.

1 E. Broward Blvd., Ste. 700

Ft. Lauderdale, FL 33301

Broward Phone: (954)951-3351

Palm Beach Phone: (561)932-1132

Cell Phone: (561)427-3402


About Top Legal Firm

Daniel Tan is chief editor of Top Legal Firm. Top Legal Firm is a free lawyers & law firm directory and legal blog that accept guest posts on wide range of topics. Contact Daniel Tan to publish your legal blog.

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