Criminal defense malpractice lawsuits are not common and are significantly different from civil cases when proving malpractice. Apart from the difficulty involved in proving ineffective assistance of counsel, the plaintiff must first overturn the criminal conviction before pursuing the malpractice lawsuit. There is a huge burden of proof on the plaintiff to demonstrate they would have had a different outcome if not for the actions or inactions of the attorney. That’s why 80% of the criminal law claims OAMIC has received in the last decade have had no loss settlement.
Because criminal malpractice cases are more difficult for clients to win than civil cases, it can be tempting for the lawyer not to purchase professional liability insurance. However, it’s important to remember that even with a baseless allegation, they can still incur defense costs.
In the last decade we have seen a couple of malpractice lawsuits result in 6- or 7-figure settlements ($675,000 and $1,750,000, to be exact). Such instances where the plaintiff has suffered major harm do result in considerable damages if the plaintiff can prove negligence. It is not impossible to see prose lawsuits from someone who is incarcerated. With all that time in prison, what else do they have to do?
Criminal defense attorneys do not see a lot of malpractice lawsuits because of the difficulty involved in pursuing the same, however, they are not immune to the costs associated with defense of such a lawsuit. Furthermore, if the underlying case is overturned, which is difficult but can happen, the attorney’s practice can suffer significant harm. Since this is not a high severity area of practice, high limits are usually not needed and therefore coverage is not very costly – but the peace of mind and protection are well worth the cost.