This Div is a JS Trigger
Issue 36 | November 2015

LIANSWERS

This newsletter includes information to help lawyers reduce the likelihood of being sued for malpractice. The material presented is not intended to establish, report, or create the standard of care for lawyers. The articles do not represent a complete analysis of the topics presented, and readers should conduct their own appropriate legal research.
Allegations of ineffective trial counsel and the importance of documenting your files

In criminal appeals from conviction or sentencing, appellants may allege in their Notices of Appeal that their trial counsel was ineffective, leading to a miscarriage of justice. Over the last few years, the number of these types of claims reported has increased dramatically.

In response to this often pursued ground of appeal, the Nova Scotia Court of Appeal has developed a “Protocol for Appeal Proceedings Involving Allegations of Ineffective Trial Counsel”. When the Registrar receives a Notice of Appeal, a review is conducted to determine whether the allegation of ineffective trial counsel has been made; if so, a copy of the Notice of Appeal is forwarded to that defence counsel. In support of their allegation of ineffective trial, the appellant often files a motion to adduce fresh evidence with supporting affidavit evidence; however, the Court does not always require this step to be taken, particularly if the appellant is self-represented. 

Why does LIANS get involved?

The answer is twofold: should the Court of Appeal determine that the trial lawyer’s representation was such that it amounted to incompetence that resulted in a miscarriage of justice, the trial lawyer may bear the burden of paying the costs of the appeal, which we have seen can be well over $100,000. LIANS provides assistance to lawyers by either helping them prepare a reply affidavit to the allegations raised in the fresh evidence application or, in some cases, seek intervenor status.

We are aware of the inherent risks associated with practising in this area of law, so we are taking a proactive role in assisting lawyers with protecting themselves against these allegations. Our message to defence counsel: document your files.

In a recent appeal decision in British Columbia, R. v. De La Boursodiere, 2015 BCCA 429 (CanLII), an appellant alleged that her lawyer did not follow her instructions to obtain an expert opinion on the authenticity of her signature or, alternatively, that the trial lawyer’s advice was not to obtain an expert opinion whatsoever. The appellant claimed that this ineffective assistance resulted in two forgery convictions against her.  The trial lawyer argued that he and his client agreed to divide the labour, giving the appellant the responsibility to retain a handwriting expert and further, that he did advise her against it after a forensic document examiner determined that there were irregularities with the signatures.

The Court rejected the allegation of ineffective assistance of counsel and, just as importantly, stated: “A failure to document the arrangement risks misunderstandings over the respective roles of counsel and client,” and further “It also provides an opportunity for an unscrupulous client to blame counsel if things go wrong”.  

While the Court stated that in situations where there is an agreed division of labour, it is paramount that “the arrangement is clearly and unambiguously documented,” we strongly advise defence counsel to use confirmatory letters in their practice to document their advice and instruction, regardless of the arrangement made with their clients.

These allegations have become very common in criminal appeals and there is no process in place to effectively address them before they have been made. This means that the lawyer, at the very least, has to file a reply affidavit in their own defence. Moreover, the message from the British Columbia Court of Appeal is equally applicable to limited scope retainers, no matter what area you are practising in. Our message to you: document your files.

For tips on how you may document your file, please visit the LIANS website at: http://www.lians.ca/resources/risk-and-practice-management/practice-tools