A corollary to the right to counsel in a criminal case is the constitutional requirement that the attorney representing the criminal defendant be effective.52 Where counsel has been ineffective in litigation, a person convicted of a crime may be entitled to a new trial or other relief.53 Effectiveness does not mean that counsel will accomplish any or all of the client’s objectives. The client may lose all despite the best counsel and presentation of the client’s case. Counsel is effective when the advice rendered and the preparation and presentation of the case are performed with reasonable competence, care and thoroughness.
To establish that counsel was ineffective, a criminal defendant must demonstrate that, under the totality of the circumstances, (i) counsel’s conduct fell below an objective standard of reasonableness, and (ii) the defendant was prejudiced thereby, i.e., but for counsel’s error, the outcome would have been more favorable for the defendant.54 This latter element must be shown to a reasonable probability, i.e., that the prejudice was probably sufficient to undermine confidence in the outcome.54.1 In deciding whether the representation fell below an objective standard of reasonableness, courts indulge in a strong presumption that the attorney’s conduct fell within the wide range of reasonable professional assistance.55
Although not rising to a constitutional dimension, an analogous duty in the civil context is the obligation of counsel not to be negligent in representing a client. To state a claim for attorney malpractice, a plaintiff has the burden of pleading and proving (i) the employment of the attorney, (ii) the attorney’s neglect of a reasonable duty, and (iii) that such neglect or negligence resulted in and was the proximate cause of loss to the client.56 Expert testimony is usually necessary to prove that a given instance of conduct by the attorney deviated from the appropriate standard of care, unless the mistake is so apparent that a layman, exercising common sense, is competent to determine whether there was negligence.57 If the complaint is that the attorney failed to take an appeal, the plaintiff must show that, had the appeal been taken, a more favorable result would have been reached.58 If a criminal defendant voluntarily entered a guilty plea, it must be shown that, but for the attorney’s negligence, the defendant would have avoided sentence or received a shorter sentence.59 If an attorney releases a potential claim, the plaintiff is entitled to recover only if the evidence demonstrates that the plaintiff would have won the underlying claim.60
52. See Shipley v State, 570 A2d 1159, 1166 (Del. 1990).
53. See, e.g., Kimmelman v. Morrison, 477 U.S. 365 (1986).
54. Smith v. State, 999 A.2d 1169, 1174, 1177 (Del. 2010); MacDonald v. State, 778 A.2d 1064, 1074-75 (Del. 2006); Guinn v. State, 882 A.2d 178, 181 (Del. 2005); Grosvenor v. State, 849 A.2d 33, 34 (Del. 2004); Miller v. State, 840 A.2d 1229, 1231 (Del. 2003); Wilson v. State, 834 A.2d 68, 72 (Del. 2003); Ayers v. State, 802 A.2d 278, 281 (Del. 2002); Steckel v. State, 795 A.2d 651, 652 (Del. 2002); Johnson v. State, 813 A.2d 161, 167 (Del. 2001); Bialach v. State, 773 A.2d 383, 387 (Del. 2001); Shelton v. State, 744 A.2d 465, 475 (Del. 2000).
54.1. Righter v. State, 704 A.2d 262, 264 (Del. 1997).
55. Staats v. State, 961 A.2d 514, 519 (Del. 2008); Righter v. State, 704 A.2d 262, 264 (Del. 1997); Riley v. State, 585 A.2d 719, 727 (Del. 1990), cert. denied, 501 U.S. 1223 (1991).
56. Thompson v. D’Angelo, 320 A.2d 729, 734 (Del. 1974); Pusey v. Reed, 258 A.2d 460, 461 (Del. Super. 1969); Williams v. Durstein, C.A. No. 87C-FE-18, slip op. at 9, Gebelein, J. (Del. Super. Apr. 26, 1988), app. dismissed mem., 556 A.2d 1071 (Del. 1989).
57. Weaver v. Lukoff, No. 15, 1986, slip op. at 2, McNeilly, J. (Del. July 1, 1986) (ORDER), disposition reported at 511 A.2d 1044 (Del. 1988) (TABLE); Williams v. Durstein, C.A. No. 87C-FE-18, slip op. at 5, Gebelein, J. (Del. Super. Apr. 26, 1988), app. dismissed mem., 556 A.2d 1071 (Del. 1989); Ruthenberg v. Kimmel & Spiller, P.A., C.A. No. 79C-DE-l7, Bifferato, J. (Del. Super. May 17, 1981).
58. Pusey v. Reed, 258 A.2d 460, 461 (Del. Super. 1969) (disapproved by Starun v. All American Engineering Co., 350 A.2d 765 (Del. 1975)); Smith v. Falasca, C.A. No. 81C- DE-56, Stiftel, J. (Del. Super. Aug. 14, 1986).
59. Williams v. Durstein, C.A. No. 87C-FE-18, slip op. at 11, Gebelein, J. (Del. Super. Apr. 26, 1988), app. dismissed mem., 556 A.2d 1071 (Del. 1989).
60. Kennedy v. Twer, C.A. No. 82C-NO-65, Balick, J. (Del. Super. Aug. 5, 1986).
© 2010 David L. Finger