Ineffective Assistance of Counsel — Criminal Defense Malpractice in Georgia
Criminal defendants have a constitutional right to effective assistance of counsel under the Sixth Amendment. When a criminal defense attorney’s performance falls below an objective standard of reasonableness and that failure prejudiced the outcome of the case, the defendant may have both a post-conviction remedy and a civil malpractice claim.
Constitutional vs. Civil Claims
It is important to understand the distinction between these two routes:
Post-conviction relief (habeas corpus) — A constitutional claim asserting that the conviction or sentence should be vacated because defense counsel was constitutionally ineffective under the Strickland v. Washington standard. This is pursued in the criminal courts.
Civil legal malpractice — A civil lawsuit seeking monetary damages from the defense attorney for the harm caused by their negligence. In Georgia, a civil malpractice claim against a criminal defense attorney typically requires that the underlying conviction has been vacated, overturned, or the client has obtained post-conviction relief — establishing that the attorney’s errors actually caused a wrongful or unjust outcome.
Examples of Criminal Defense Malpractice
- Failing to investigate witnesses, alibi evidence, or exculpatory materials
- Failing to file a motion to suppress illegally obtained evidence
- Providing incorrect advice about the consequences of a guilty plea
- Failing to advise the client of a favorable plea offer
- Failing to object to inadmissible or prejudicial evidence at trial
- Providing grossly inadequate representation at sentencing
- Conflicts of interest that affected the quality of representation
- Failure to file a timely notice of appeal after a conviction
Pursuing Both Routes Simultaneously
I work with clients and their post-conviction counsel to pursue both remedies in appropriate cases. I can help you evaluate the strength of both the constitutional claim and the civil malpractice claim and coordinate strategy across both proceedings.