Regretfully, that is a problem.
In a later civil action for malpractice against the attorney who represented them in a previous criminal case - a plaintiff must prove their innocence of criminal wrongdoing in order to recover in a legal malpractice suit against her former criminal defense attorney.
Jurisdictions require criminal malpractice plaintiffs to demonstrate falls into two categories:
(1) “actual innocence” (the malpractice plaintiff must prove by a preponderance of the evidence that she did not actually commit the underlying crime); and
(2) “legal innocence” (the malpractice plaintiff must prove by a preponderance of the evidence that but for the lawyer’s negligence, the malpractice plaintiff would not have been convicted in the underlying criminal trial
by proof beyond a reasonable doubt).
Jurisdictions professing to require proof of legal innocence do so by requiring the criminal malpractice plaintiff to prove that she has been exonerated of the underlying criminal conviction through post-conviction relief
Nonetheless, the Sixth Amendment guarantees a person accused of a crime the right to a fair trial, this includes the right to effective assistance of counsel at trial. Earlier this year, the United States Supreme Court
held that the right to effective assistance of counsel applies to any critical stage of a criminal proceeding, including the pretrial plea negotiation process.
The Ninth Circuit Court of Appeals recently construed this Supreme Court opinion to hold that effective assistance of counsel during a plea bargain now requires the attorney to also advise a client of the consequences of rejecting a plea offer.
Specifically, the attorney in that case was ineffective when he advised the client to reject a plea offer for 6 years in prison but did not also advise the defendant that if he was convicted at trial, the conviction would be counted as his third strike and he would be sentenced to a mandatory minimum 25 year prison sentence.
Attorneys have long had a duty to relay all formal plea bargain offers to their clients. Now they additionally have a duty to advise their clients of potential consequences of not accepting those offers.
A failure on an attorney’s part to discuss the consequences of rejecting an offer does not mean automatic reversal.
In order for a defendant to prevail when making a claim of ineffective assistance of counsel in the plea bargaining process after conviction, the defendant must show the attorney gave him “ineffective advice which lead him to reject a plea offer, that but for the ineffective advice, there is a reasonable probability that the plea offer would have been presented to the court, that the court would have accepted its terms, and that the conviction or sentence or both, under the offer’s terms would have been less severe than under the actual judgment and sentence imposed.”
Defendants convicted of crimes can file a writ of habeas corpus asking for post-conviction relief. These petitions must be filed without substantial delay. If you rejected a plea bargain offer and were later sentenced to a much longer sentence and your attorney did not advise you at the time of the offer of the potential consequences, you may have a good case for a writ requesting habeas relief.