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How to prove your defense attorney was incompetent

Everyone who hires an attorney in Los Angeles has the right to get adequate representation from that attorney. This is true whether you hired the attorney yourself, or are an indigent criminal defendant who received a court-appointed defense attorney.

Whether or not you won your case or reached a fair settlement does not necessarily determine whether your lawyer provided adequate representation. An attorney can fulfill his or her duty to a client and still lose. From a criminal law perspective, the question is whether the lawyer’s conduct was so incompetent that the client’s right to an attorney under the Sixth Amendment was violated.

To prove legal malpractice, a defendant must generally show two things occurred:

1. The defendant’s attorney made errors that were so serious that he or she essentially did not act as legal counsel, violating the defendant’s Sixth Amendment rights.

2. The attorney’s deficient performance unfairly prejudiced the defense. In other words, the lawyer’s errors took away the defendant’s chance for a fair trial.

Proving legal malpractice in a criminal matter can be difficult, because courts tend to defer to attorneys. Thus, they presume that the accused attorney provided “reasonable professional assistance” to the former client.

Still, the Sixth Amendment right to an attorney is a vital part of the Bill of Rights. Those who receive incompetent representation could wind up losing a great deal of money -- not to mention their freedom -- when they should not. Injustice is injustice, including when it comes at the hands of the victim’s own lawyer.

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