Practice Pitfalls: Criminal Law

In the September 2010 issue of LAWPRO Magazine, we asked our claims counsel about what they feel are the biggest malpractice hazards in each area of law based on the claims files they work on every day. Here is an excerpt from that article that discusses criminal law, which while not a large source of LAWPRO claims, still has its dangers. Click here to read the full article “Practice Pitfalls”.

Criminal law has not traditionally been a fertile source of malpractice claims, notes LAWPRO Claims Counsel Karen Granofsky, but “ineffective assistance of counsel” claims are a growing trend.

For example, a person convicted of a criminal offence appeals the conviction. One of the grounds of appeal is that the lawyer who represented the accused at trial provided ineffective assistance.

The appellate lawyer may ask the trial lawyer to swear an affidavit supporting this ground of appeal. This puts the trial lawyer in an awkward situation. He or she may wish to help the accused overturn the conviction, but swearing an affidavit in support of the ground of “ineffective assistance at trial” may be tantamount to admitting negligence.

These cases should be reported to LAWPRO (or for lawyers outside Ontario, your own insurer) as soon as the allegation is made, says Granofsky, at which time LAWPRO can determine whether an affidavit is necessary. If an affidavit is necessary, LAWPRO counsel can ensure that no damaging admissions are made.

Lawyers who fail to report such claims to LAWPRO promptly may prejudice their insurance coverage.