Facing criminal charges is frightening enough. Even with the best criminal defense lawyer you can find, there is a chance of a conviction that could bring fines, prison time and other serious consequences.
This situation is much worse if, at some point during the proceedings, you start getting the feeling that your attorney is not handling your case well. While sometimes a bad case is just a bad case (substantial evidence, motive, means and opportunity, etc.), there are cases where a conviction could have been avoided if the lawyer handled the case properly.
The biggest problem with the negligent attorney scenario is that there is an extremely high bar for showing legal malpractice in criminal cases.
The bar for establishing legal malpractice in criminal cases in North Carolina
An American Bar Association Journal article discussing the high legal bar for these cases looks at North Carolina. Although the state does not hold the extraordinarily high bar of making the convicted party prove his or her own innocence before bringing a malpractice claim, the bar is still quite high.
The North Carolina Court of Appeals in the Belk v. Cheshire of 2003 states that the burden of proof is “necessarily a high one” in criminal cases.
To win a legal malpractice case against your attorney after a criminal conviction, you will have to show that the proximate cause of your conviction was your attorney’s bad counsel, not the evidence against you. This is an extremely high bar.
Is the bar too high?
While there are many good policy reasons for keeping the bar this high for criminal legal malpractice claims, it might be higher than it needs to be.
Make no mistake: If you have been convicted of a crime, it will be no small task to win a malpractice claim and get a new trial.
However, it is not impossible. If you are convinced that your lawyer failed to perform his or her duty properly in representing you, talk with an attorney who has experience handling legal malpractice claims. A skilled legal malpractice lawyer can look over the transcripts of your case determine whether you might be able to win a malpractice suit.