The truth about IAC

So what happens to trial counsel after an appellate court makes a finding of ineffective assistance of counsel following a mistake counsel made at trial? ABSOLUTELY NOTHING.

Some attorneys are reluctant to speak with appellate counsel about trial decisions based on a fear that an IAC finding might result in some kind of a sanction from the state bar. But this fear is unfounded as there is absolutely no consequence to trial counsel who made a mistake in defending or in preparing to defend a criminal defendant. This has always been the policy of the Office of the Chief Trial Counsel of the State Bar " the unit that handles all matters pertaining to attorney discipline.1

Appellate courts have a duty to notify the state bar after reversing a conviction for IAC, and the bar then checks into the matter looking for one thing " attorney misconduct. Misconduct is qualitatively different from mistakes made at trial (negligence). Misconduct includes things like stealing from the client, sex with the clients wife, or improper contact with witnesses or jurors.

The bar looks into the IAC finding to determine whether the case involved misconduct. If not, the matter is concluded and there is no consequence to trial counsel. The bar proceeds on the logical assumption that everyone makes mistakes, and mistakes will be made in most all cases given the number of decisions counsel must make during the often-stressful process.

Common mistakes include the failure to investigate facts and defenses, the failure to make proper objections, to properly present evidence, to request the appropriate jury instructions, and to properly defend the defendant at sentencing.

The system is set up to identify mistakes that may have contributed to the guilty verdict and to determine whether the defendant should receive a new trial. It contemplates a dialogue between trial and appellate counsel about decisions made during trial. Trial counsel has a continuing duty to the client and there is no reason to avoid the conversation. Appellate counsel has the same duty with successor post-conviction counsel.

The defense team consists of the defendant, trial counsel and appellate counsel. Go Team!
I recently confirmed the bars method of handling these cases. The state bar attorneys are accessible and very helpful in answering any questions from interested counsel.

Thanks to Pat Ford.