Has anyone else noticed a trend of Defense trial counsel admitting to ineffective assistance in appellate affidavits? If so, has anything been done to discourage the practice and, if so, what? I know in some counties those who fall on their swords to assist their convicted clients are removed from capital murder appointment lists. (Pursuant to the new law on same) Have any attorneys been removed from all appointment lists in this scenario? Has a county sued civilly to recapture appointed attorney's fees? Does this sound viable?
If an attorney is willing to admit that they were ineffective in assisting their client, shouldn't that mandate a review by the State Bar?
And if they were not able to be effective in their representation, wouldn't it be appropriate for the bar to at least reprimand if not sanction them?
The Bar has to know about it before they can act, and if no one files a complaint/grievance, there is nothing to trigger their review. Or so their story goes. It's the same for appellate findings of "prosecutorial misconduct," I suppose.
I have heard a judge on a court of appeals say that he thought that a truly good attorney would admit if and when he was ineffective. This was in response to the cases that hold that you have to develop evidence in the record (e.g., in a motion for new trial) that the ineffectiveness was not merely a trial strategy that did not work out well. I think that the judge was assuming that a case in which an attorney admitted ineffective assistance would actually involve ineffective assistance and not be one in which the trial attorney is trying to set up a successful appeal. I also think that the judge did not think about the "collateral" effects of admitting being ineffective such as raising the question of the attorney's fitness to practice law.
Is your question related to an attorney (or attorneys) who might simply be trying to help out an appeal? I would think that one's fitness to practice law would be called into serious question if that were the case, regardless of whether there was ineffective assistance in the case.
What about using the attorney's admission of ineffective assistance to have his/her name struck from the roles of qualified attorneys eligible to take court appointments, pursuant to the Fair Defense Act?
We hadn't really thought about the grievance route, but who is going to file it? Our office? Good cause for starting a war with the Defense Bar and inviting reciprocal treatment. Having them taken off the appointment list is where I was headed, but in our case, this happened several years ago and neither of the two attorneys is on the appointment list any longer. (Because they're making too much money now) This is why we were fishing for other creative ideas.
Furthermore, YES, trying to assist on appeal / habaes is exactly what is happening and has happend at least three other times in the recent past... doesn't seem ethical or practical to me?
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