This Div is a JS Trigger
Issue 69 | May 2021


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.
Ineffective Assistance of Counsel Claims – Allegations in Criminal Representation

From R. v. Trought, 2021 ONCA 379, decision released June 3, 2021:

[76]      In concluding this ground of appeal, I wish to comment on trial counsel’s failure to obtain written instructions from the appellant about the decision to testify. In R. v. W.E.B.,…this court recognized that the failure to obtain written instructions is a question of professional prudence, not incompetence, but noted that the failure to do so is “ill-advised and contrary to counsel’s best interests”…

[77]      The lawyer who fails to obtain written instructions risks exposure to unfounded allegations of unprofessionalism… And although not indicative of ineffectiveness itself, the failure to obtain instructions may undercut trial counsel’s attempts to defend against claims of ineffectiveness.

[78]      The failure to obtain written instructions also makes it more difficult for an appellate court to adjudicate claims such as the one advanced on this appeal… Written instructions may resolve competing claims on appeal. In R. v. Archer…Doherty J.A. observed, at para. 143, “The largest hurdle faced by the appellant in trying to convince the court that the decision to testify was made by trial counsel is the direction signed by the appellant during the trial.”…

[79]      I would allow the appeal, set aside the conviction, and order a new trial.

We often speak about the importance of file notes, reporting letters and written instructions that document your decisions and client interactions. This applies not just to civil and transactional matters but criminal matters as well.

Because we see criminal law ineffective assistance of counsel claims, we are in the unique position of seeing the various allegations raised. Not surprisingly, there is a lot of consistency in the allegations from one claim to the next.

What follows, in no particular order, are the more common ineffective assistance allegations we see, many claims alleging several:

  1. poor communication, lack of client meetings
  2. failure to call or assess the potential evidence of witnesses the client believes have relevant information
  3. failure to review, present or challenge evidence or appreciate and explain to the client the uses physical and oral evidence can be put by a judge or jury
  4. failure to fully consider the impact of the client testifying
  5. failure to obtain appropriate expert reports
  6. failure to advise on the effects of an agreed statement of facts
  7. failure to advise on potential outcomes
  8. not raising potential charter issues
  9. failure to advise on the potential for lesser or included offences
  10. failure to advise on the process for, and effect of, pleading guilty
  11. failure to advise on the court’s ability not to agree with a joint sentencing recommendation or on the range of sentencing for the offence

It is not our intention to make the handling of criminal matters more onerous for you. And the fact is that most claims are resolved in our insured’s favour.

But you should be aware that ineffective assistance of counsel claims are increasing in frequency (in 2016 they accounted for 6% of our claims, 11% last year) and like any claim, your file forms the basis of your response. The nature of your retainer (i.e. legal aid staff lawyer or private practitioner on a certificate or private retainer) should not affect the documentation you should have in your file, which means file notes, reporting letters and written instructions.