Under the Sixth Amendment to the United States Constitution, criminal defendants are afforded the constitutional right to legal counsel.
The Right to Counsel and Effective Representation
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The right to counsel includes the right to the attorney of choice if the defendant can afford to hire a lawyer. If the defendant is indigent and cannot afford to retain private counsel, the Court will appoint public counsel to provide legal representation. In all circumstances, legal counsel must provide effective representation.
Determining Effective Legal Representation
Effective legal representation is determined by the Courts, where a defendant attacks his or her lawyer’s performance, usually in a request for post-conviction relief. The attack is often made after a defendant is convicted, sentenced, or otherwise negatively impacted by a Court’s ruling, which he or she attributes to the lawyer’s alleged ineffective acts or omissions.
Burden of Proof for Ineffective Assistance of Counsel
The burden of proving ineffective assistance of counsel falls on the defendant to establish:
- (1) that the lawyer’s conduct was deficient in that it fell below what a reasonable and similarly experienced lawyer would have done under the circumstances,
- and (2) but for the lawyer’s conduct, the legal outcome would have been different. This is a very high burden that is not easy to meet. Ineffective assistance of counsel has traditionally been rooted in an attorney’s conduct or performance in a case, or his or her failure to act or perform in the case.
Expanding Definition of Ineffective Assistance of Counsel
What constitutes ineffective assistance of counsel could be expanding beyond a lawyer’s performance in a case, to now encompass his or her expressed opinions or beliefs. In Commonwealth v. Dew, 492 Mass. 254 (2023) the Massachusetts Supreme Court granted an African American defendant of Muslim faith a new trial after his criminal conviction because his appointed attorney expressed racist views in social media postings, which the SJC concluded created a conflict of interest and ineffective assistance of counsel.
Conflict of Constitutional Rights
This ruling highlights a conflict in competing constitutional rights: the lawyer’s First Amendment rights to freedom of speech and expression and the defendant’s Sixth Amendment right to legal counsel. Of course, the Court sides with the defendant under these circumstances because his liberties or freedoms were adversely impacted by the criminal conviction, which was arguably influenced by the lawyer’s innate conflict of interest, which interfered with his duty to provide effective representation at all times.
Implications for Political, Racial, or Religious Beliefs
The Dew decision may also be read to apply to a lawyer’s political, racial, or religious beliefs, to the extent to conflict with those of the client, thereby forming the basis of a conflict of interest that poses a risk for ineffective assistance of counsel.
Ethical Obligations of Lawyers
Under rules of professional responsibility, lawyers are ethically obligated to avoid representing clients where a conflict of interest exists, including moral, religious, or other belief or value, that would interfere with a lawyer’s duty to advocate for the client, free from any external or internal restraints.
In the Dew case, the lawyer should not have accepted the court appointment to represent the defendant based on his personal beliefs or views, or alternatively, moved to withdraw once realized that such beliefs or views were averse to the interests, race, religion, or origin of his client.
Perhaps the lawyer did not perceive the conflict of interest at the time of his appointment or during the course of the representation. If so, the Dew decision serves as a warning to legal counsel now and in the future as to how personal views or beliefs may conflict with professional duties and obligations.
Contact an Attorney to Get Help with Ineffective Assistance of Counsel
If you have questions or concerns about ineffective assistance of counsel, contact the Massachusetts Law Office of John L. Calcagni III, Inc. for a free consultation at (401) 351-5100.
