Criminal law: 5 key causes of claims

 

This is an area of law that may be attracting more risk. In the three-year period starting in 2015, we received 2.5 times the number of reports from criminal lawyers than we’d received in the three years prior. The single biggest risk that criminal lawyers now face is a claim relating to some alleged failure that led to their client’s wrongful conviction. Appeals of convictions on the basis of "ineffective assistance" of trial counsel may be grounded in allegations of a legal issue failure, such as failing to properly think through the defence strategy or the steps required to achieve an acquittal. They may also reflect an engagement management failure in not recognizing and managing the client’s unrealistic expectations of the outcome at trial, or even a simple breakdown in communication.

Learn more about each cause, including examples from actual claim files, below.

 

Pie chart: 5 key causes of claims for criminal law

Date Range: 2003 - 2017

Find out more about each cause, including stories and videos of examples from our claim files, below.

These failures have nothing to do with your competence as a lawyer, but everything to do with how you manage the process of providing legal services. They break down as follows:

Not managing client expectations (81%)
You fail to appreciate the risk inherent in a client or their expectations of the legal process (67%) or who is doing what (33%).

Claim file example
Lawyer represented the claimant in a criminal matter. The claimant insisted that she was not guilty, but was convicted following a trial. She has now sued the lawyer for the negligent provision of legal services.

Not effectively managing the retainer (19%)
At the start of the retainer, you don't adequately think through how you are going to deliver the legal services or if you are able to represent all parties.

Claim file example
Lawyer acted for two accused in a criminal matter, and decides not to call one as a witness to exculpate the other. Appeal counsel now argues the lawyer was in conflict on this point.

These reports involve failing to sort out the legal issues or strategies required to achieve a client’s goal.  They break down into two categories: 

Ignorance of the law (13%)
You don’t appreciate that you don’t know an area of law as well as you need to in order to provide proper advice.

Claim file example 
Claimants plead guilty to welfare fraud while represented by the lawyer. The lawyer was unaware that guilty pleas result in a life time ban of all provincial government aid, including disability benefits, so did not discuss this outcome with the claimants before entering their plea.

Not thinking it through (87%)
You know the law, but don’t fully think through all of the legal issues, or what strategies to implement or steps to take to achieve your client’s goal.

Claim file example 
Lawyer is alleged to have provided ineffective assistance in a criminal matter, resulting in a conviction. The client has appealed and seeks to blame the lawyer for the conviction, alleging a failure to adduce proper evidence.

These failures in listening, asking and explaining often involve lawyers making assumptions that later prove wrong.  They break down into two categories:

Communication issues with clients (64%)
You don’t devote enough time or attention to ensure that a client understands you or provides you with the information that you need, or you fail to ask for instructions or consent.

Claim file example
Lawyer acting in a criminal matter fails to ensure that his client leaves the courthouse with a copy of her bail conditions. The client was later rearrested because she did not carry her bail conditions, and blames the lawyer for not taking time to explain the requirement to her. 

Communication issues with non-clients (36%)
You fail to communicate effectively with either other counsel on a matter or the other people on whom you rely to help you get the job done.

Claim file example
Lawyer acting for a client with two pending criminal matters seeks to negotiate a stay with the Crown. As a result of a miscommunication during a telephone call, the Crown takes that the position that only one of the charges was stayed, not both. 

Almost all of these mistakes occur because we just ‘drop the ball’ and forget or overlook some step that needs to be taken. 

Claim file example
The lawyer missed the deadline for appealing her client's criminal conviction.

This relatively small risk has nothing to do with the quality of legal services you provide. These reports would have been avoided entirely if you simply had the necessary evidence to confirm advice that you gave, instructions that you received, or your dealings with other counsel and parties.

Claim file example
Lawyer determines, on reasonable grounds, that his client's appearance at her bail review hearing would not be helpful and files the client’s affidavit instead. The judge dismisses the bail application, and the client now claims that she never agreed to this strategy.

Next Steps?

For the articles and publications that will help you avoid claims in your own practice, review:

Limitations and deadlines
Practice management - risks and tips
Areas of law - risks and tips

And remember, effective risk management also requires you to understand what’s covered under the compulsory Policy – and what’s not.  See Cover Pages and My Insurance Policy: Questions and Answers for more information.

 

Last updated: June 2018