Understanding your right to effective counsel

The Sixth Amendment to the U.S. Constitution guarantees, among other things, your right to “assistance of counsel in all criminal prosecutions” against you, whether conducted in New York or elsewhere. In other words, you have the right to have an attorney represent you. Furthermore, the attorney must represent you effectively.

But what does effective assistance of counsel entail? Courts have long held that your attorney’s effectiveness has two prongs. First, the court itself cannot restrict him or her in the pursuit of his or her representational duties. Second, (s)he must provide you with competent representation adequate to ensure that you receive a fair trial. These two prongs apply whether you hire your own private attorney or whether the court appoints one to represent you.

Prohibited interference

The court is not the only one who cannot interfere with your right to access your attorney at all reasonable times and/or interfere with your relationship with him or her. For instance, if you could not make bail and remain incarcerated while awaiting trial, jail personnel must allow your attorney to meet with you privately whenever (s)he shows up, whether or not that is during regular visiting hours. In addition, they must provide you and him or her with a private meeting place where no one else can hear what you discuss. And obviously, no law enforcement officers can question you unless your attorney is present with you.

One thing of particular note is that the court cannot require your attorney to represent one of your co-defendants if, as is likely, that representation would present your attorney with a conflict of interest in representing both of you.

Attorney competence

While no one except you can tell your attorney how to conduct his or her representation of you, attorney competence, too, has two prongs. First, (s)he must provide you with competent representation. You have grounds for a legal malpractice suit if you can prove that his or her representation was somehow deficient.

Second, your attorney’s level of representation must in no way prejudice your defense to the extent that it results in an unfavorable outcome that otherwise would not have occurred. Keep in mind, however, that receiving a conviction for your alleged crime in and of itself does not rise to the level of attorney incompetence.

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Neil S. Ruskin
188 Montague Street Suite 900
Brooklyn, NY 11201

Local: (718) 237-1547
Fax: 718-875-4011