Effective counsel

Arguing ineffective counsel and substituted counsel

The courts have a safeguard for defendants who believe that their counsel did not provide them with proper representation, the right to effective counsel and the right to dismiss them. In the matter of LPS conservatorships, the conservatees have the right to the former but it becomes a bit tricky when it comes to dismissing counsel.

"The Supreme Court has held that part of the right to counsel is a right to effective assistance of counsel.  Proving that their lawyer was ineffective at trial is a way for convicts to get their convictions overturned, and therefore ineffective assistance is a common heabus corpus claim.  To prove ineffective assistance, a defendant must show (1) that their trial lawyer's performance fell below an "objective standard of reasonableness" and (2) "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668 (1984). "

In the matter of LPS conservatees "like all lawyers, the court appointed attorney is obligated to keep her client fully informed about the proceedings at hand, to advise the client of his rights, and to vigorously advocate on his behalf. (Bus. & Prof.Code, § 6068, subd. (c); Conservatorship of David L. (2008) 164 Cal.App.4th 701, 710

[a proposed LPS conservatee has a statutory right to effective assistance of counsel]; Conservatorship of Benvenuto (J986) 180 Cal.App.3d 1030, 1037.

​["Implicit in the mandatory appointment of counsel is the duty of counsel to perform in an effective and professional manner."]. 

This a common issue where the conservatee may argue this matter in a writ of habeas corpus hearing. The conservatee may argue that their counsel failed to provide them with all of the information necessary to help them understand the legal proceedings or that their counsel did not advocate for their desires strongly enough. At prima facie this may seem true as counsel if often overwhelmed and cannot talk the conservatee through the entire proceeding or do a comprehensive read over of the conservatee's case file. However, when closely reviewed by the court this argument often fails as the court may find that 

Frequently the court will find that "[the conservatee's] complaints [do] not demonstrate that counsel was performing inadequately or that denial of [the] motion would substantially impair [the conservatee's] right to assistance of counsel." 

The court states that in order to find counsel ineffective, the conservatee must demonstrate that counsel made mistakes that prejudiced the conservatee's case through legal evidence and or made legal procedural errors that were serious in nature. The conservatee must prove by "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." The second half, that the outcome would have been different should those errors not been made. This is a very difficult matter to prove as it kind of involves telling the future. Many judges may find that legal errors were made but still dismiss the matter citing that the outcome would have been same. This is also a case where the conservatee will want a judge that really hears the matters and does not rubber stamp the county's decisions. 


The conservatee may not simply preserve their claim by "including in the Marsden argument specific complaints about an attorney's performance, i.e., failure to investigate exonerating information or witnesses, failure to meet and confer with defendant, and refusal to prevent a particular defense. 
arbitrary, or capricious". In other words the conservatee may not simply say that their counsel did not do what they wanted, did not file a motion, or set a hearing pursuant to the conservatee's wishes.

I address this matter because there are many conservatees who will try and use this argument as a mean of getting off of conservatorship. Even though it is a thoughtful gesture, the conservatee will most likely not win their appeal based on this argument alone.