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.


  1. Lawyer to LawPro: I intend, in the affidavit, to set out the facts of what I did and why. If you won’t agree to that, I’ll consent to being examined under oath and answer the questions posed. What I’ll say is exactly what I’d say were I testifying in court.

    LawPro to Lawyer: If you do that, we’ll take the position you’ve admitted liability without our consent, you’ve breached the policy, and you’ve lost coverage.

    Lawyer’s lawyer to LawPro: when should I expect the cheque that will pay for my Aston Martin, my Mercedes Gullwing Coupe, and my 4 kids’ education at Stanford?

  2. How exactly would the situation arise in which a former client is alleging ineffective assistance of counsel and it’s reached the stage at which an affidavit is requested, but the lawyer’s insurer is still not aware?

    I mean, wouldn’t one’s insurer have to be notified as soon as you knew a former client was alleging ineffective assistance of counsel? Is this some situation in which the former lawyer only learns of the allegations at the moment they’re asked for an affidavit? Even if so, one would need time to review the file and draft an affidavit = time in which to notify your insurer. You still tell the truth, of course, but you also comply with your other obligations.

  3. David

    Of course you notify the insurer. On e & o coverage – generally claims made – you won’t have coverage at all if you don’t notify within the reporting period. On occurrence based coverage, failure to notify is going to be policy breach from which there might not be relief from forfeiture.

    My point, though, was aimed at the last sentence of the LawPro article: “Claims counsel can help ensure that no damaging admissions are made.”

    The emphasis is mine. What sort of damaging admission? Those that might be encompassed by the truth? Whose ass is being protected there?

    As you said, the lawyer’s obligation, since the former client has waived privilege, is to tell the complete truth. It’s not to conduct himself or herself in a way that preserves his or her insurance coverage.