RISK AND PRACTICE MANAGEMENT TIP: Claims of ineffective trial counsel – Effective communication

LIANS has advised the membership that claims related to allegations of ineffective trial counsel in criminal appeals are on the rise but what is leading the charge? Effective – or allegedly ineffective – communication between lawyers and their clients, particularly the conversations lawyers have with their clients regarding pleas.

For lawyers, assessing the strengths and weaknesses of a file and the likelihood of conviction becomes second nature but for clients, they have more at stake and may wish to take their chances in court. If a lawyer hasn’t adequately explained to the client why the plea is in their best interest, the client may regret their decision and file an appeal, alleging that the lawyer “took the easy way out” and didn’t protect their interests.

To help avoid claims related to allegations of ineffective trial counsel, lawyers should explain in detail the analysis of the case and implications of the choices made by the client, including plea decisions. This may become particularly relevant when there is a chance that the guilty plea may, for example, impact their job security or put them at risk of deportation. Also, be sure to document the advice and instruction provided, along with details of any relevant conversations you have had with your client. This way it will be much easier to respond to an allegation of ineffective trial counsel if one is raised against you.

If you have any questions on these, or any other risk- or practice-related matters, do not hesitate to contact Stacey Gerrard, LIANS Counsel with the Risk and Practice Management Program at sgerrard@lians.ca or call 902 423 1300 ext. 345.

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