Laying the Groundwork for Defense of a Malpractice Action Based on Representation in the Criminal-Defense Setting

Laying the Groundwork for Defense of a Malpractice Action Based on Representation in the Criminal-Defense Setting


You can’t please every client. That’s all the more true in the criminal-defense setting, where the stakes are high. Your client has the potential to lose the thing we value most—freedom.

And who’s the first to blame when your client receives a jail or prison sentence, particularly an unexpected one? You. That blame, often misdirected, can lead to a malpractice action.

The attorney-judgment rule and estoppel are, perhaps, the most common and successful defenses to a malpractice claim in the criminal-defense context. Below are a few tips on how to lay the groundwork in a criminal case for your defense in a potential malpractice case.


Attorney-Judgment Rule

Reasonable boundaries of professionalism limit the duty implied by the attorney-client relationship. You’re required to exercise reasonable judgment, but you’re not required to display extraordinary skill or guarantee the most favorable outcome possible. That’s really the essence of the attorney-judgment rule, which gives you breathing room to choose among competing strategies and make reasonable but mistaken judgments. As the Supreme Court recognized in Simko v Blake, to hold otherwise would allow every client on the losing end to sue you for malpractice if she could find another attorney to second-guess your decisions with the benefit of hindsight.

Acting in good faith and using reasonable judgment are a good start, but communicating with your client will add an additional layer of protection. Involve your client in her defense. Discuss why you don’t want to call a particular witness or offer a particular document and explain your rationale. Follow up with an e-mail or letter memorializing your discussion so you can defend against, if not avoid, a “my attorney didn’t tell me” claim down the road.



Just as courts aren’t willing to second-guess your strategy, courts also aren’t willing to re-litigate the underlying criminal case in the malpractice case. If the criminal case culminated in a final judgment, collateral estoppel will preclude your client from re-litigating an issue actually litigated and necessarily determined in the criminal case.

Let’s say your client files a motion for ineffective assistance of counsel in the criminal case. After holding a Ginther hearing, the court determines that you provided adequate, competent representation. Later, your client files a malpractice case. Collateral estoppel should be your first line of defense. Your client had an opportunity to litigate the adequacy of your representation in the criminal case. Your client doesn’t get a second bite at the apple.

Another form of estoppel is judicial estoppel, an equitable doctrine designed to protect the integrity of the judicial system. If your client unequivocally and successfully asserts a position in the underlying criminal case, judicial estoppel may preclude your client from asserting an inconsistent position in the malpractice case.

Suppose your client decides to enter a guilty plea. You voir dire your client and ask your client the following questions:

  • Have I explained the terms and potential consequences of the plea to you?
  • Do you understand the terms and potential consequences of the plea as I’ve explained them to you?
  • Do you understand that you have the right to a trial?
  • Is your decision to give up the right to a trial and proceed with the plea?
  • Do you have any questions for me, the prosecution, or the court before you enter into the plea?
  • Has anyone threatened you or promised you anything to induce you to enter into the plea?
  • Are you satisfied with my representation?

Your client answers “yes” to your questions, and the court accepts the plea. Your client later experiences buyer’s remorse and sues you for malpractice. Contrary to her sworn testimony in the criminal case, she claims that you failed to explain the consequences of the plea. You can and should raise judicial estoppel to preclude your client from playing fast and loose with the court.



In the criminal-defense setting, you can’t avoid the prospect of an unhappy client. But you can reduce the prospect of malpractice liability. Communicate with your client about strategy and memorialize your discussion in writing. When your client takes a plea, conduct voir dire and ask the right questions.

Have questions or looking for further information? Contact one of our attorneys.