Articles Posted in Ineffective Assistance

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Fink v. SHELDON BANK, Ill: Appellate Court, 1st Dist., 3rd Div. 2013 – Google Scholar.

Illinois has long followed the actual innocence rule, which holds that a criminal defendant may not sue his former attorney for legal malpractice unless he can prove that he was actually innocent of the crime.

A plaintiff in a legal malpractice case must prove a case-within-a-case, that is he must prove that, but for the lawyer’s negligence he would have won the underlying case. In the criminal context, the word “won” means “actual innocence.”

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This case is a somewhat routine affirmance of a bank fraud conviction and the rejection of an ineffective assistance of counsel claim. The Defendant alleged that her lawyer rendered ineffective assistance of counsel by failing to call certain witnesses at the trial of the case. In the criminal world, an ineffective assistance claim is equivalent in many ways to a legal malpractice claim. If there is a finding of ineffective assistance of counsel, the defendant is sometimes entitled to a new trial.

Here, the defendant fired her lawyers, but was assisted by stand by counsel at her trial. Counsel decided not to call certain witnesses because the potential risk of their negative testimony far outweighed the potential reward. This case makes it clear that these decisions are for the lawyer to make at trial, except in unusual circumstances.  The Seventh Circuit explains the rules applicable to witness testimony issues: “A “lawyer’s decision to call or not to call a witness is a strategic decision generally not subject to review. The Constitution does not oblige counsel to present each and every witness that is suggested to him.” United States v. Best, 426 F.3d 937, 945 (7th Cir. 2005) (quoting United States v. Williams, 106 F.3d 1362, 1367 (7th Cir. 1997)). Indeed, Parker acknowledges that the decision whether to call a witness was her attorney’s to make.”

Comment: the point here is that it is almost impossible to win a legal malpractice case on the ground that the lawyer failed to call a witness. That decision was the lawyer’s to make in his professional judgment.