Vet Your Lawyer

Editorial – If the Lawyer Fails – NYTimes.com.

The thing is, this happens all the time. It is one of the main reasons lawyers get sued for malpractice. By failing to meet the standard of care, the lawyer has shifted liability from the other side to himself. No one is saying this is the client’s (Mr. Holland) fault. The whole point of hiring any independent third party is so that you can rely on their expertise. When that person fails, and the client loses whatever rights he had against the other party, the law says now he can go after the attorney.

As in every lawsuit, there are two hurdles to overcome: liability, and damages. The damages aren’t hard to figure out here, although putting a price on them might be.  The real problem is liability. Even if Holland’s lawyer had done everything well, the court might still have rejected his habeas petition. And if that’s the case, then Holland hasn’t lost anything.

This is why legal malpractice involves winning, or proving, two cases at once: the one against the lawyer, and the one the lawyer is accused of messing up. If you can’t prove you would have won anyway, the lawyer’s negligence hasn’t cost you anything.

How do you prove that when the original case was being contested in the first place? There were lawyers and evidence and arguments for and against, and it was to be left to a third party, the court, to make the decision: a human decision, a judgement, quite literally, an opinion.

As difficult as all that is in the civil context, then at least it is usually “only”  about money. There is insurance and other ways to reduce risk on all sides.  But let’s be honest: a convicted criminal (beyond a reasonable doubt) is not going to be a sympathetic plaintiff. More than that, there are any number of places where justice could have gone sideways in this case, long before the lawyer blew the habeas petition. And there will always be those who wonder what Holland was doing mixed up in this case, even if he wasn’t guilty as charged.

Besides that, many states require a criminal malpractice plaintiff to prove “actual innocence” ,  not what I would call a walk in the park.

So is it fair, is it just, to leave criminal defendants like Holland with the remedy of suing their lawyers when, even if the lawyer has insurance and the convict wins, he has to stay in jail? Freedom is what’s at issue, here, not money. How much money would you take to sit in prison for 10 or 20 years?