Asked to Swear an Affidavit to Support a Former Criminal Client’s Appeal? Call Your E&O Insurer First.
This article is by Nora Rock, corporate writer and policy analyst at LAWPRO.
From a malpractice claims perspective, criminal law may not be as safe an area of practice as you might think: LAWPRO sees over 30 criminal law claims per year on average. These claims are sometimes complicated by steps taken by lawyers who take certain dangerous DIY steps in the name of claim “self-repair”.
One of the most common bases for claims against criminal lawyers is “ineffective assistance of counsel”. This allegation, not uncommon as an appeal ground in criminal court, may also be cited in a malpractice suit against the lawyer.
The risk to the lawyer arises when new counsel, hired by the defendant to handle an appeal of the conviction, requests that the lawyer who handled the trial assist the appeal by swearing an affidavit that supports the ineffective assistance appeal ground.
Eager to assist the former client (and worried about a claim), the trial lawyer may oblige; but swearing an affidavit in support of the ground of ineffective assistance may be tantamount to admitting negligence.
What to do?? Swear the affidavit and brace for a claim? Refuse to swear the affidavit, risk the former client losing the appeal, and STILL brace for a claim?
The answer: call LAWPRO (or if you're a lawyer outside Ontario, call your own E&O insurer) before attempting a DIY repair. Claims counsel can help ensure that no damaging admissions are made.