Most criminal defense lawyers take comfort in the tacit understanding that the chances of being successfully sued are slim to none.  Absent proof of actual innocence, even abject incompetence causes no harm.  So that gives the defense lawyer a free pass in botching a case, true?

Unfortunately, the answer is, with certain exceptions, true.  This emboldens some lawyers to act with utter indifference to their responsibilities to their clients.  Failing to ask for a hearing, or give proper and timely alibi notice.  Failing to inspect a crime scene or read the discovery.  The dreaded motion to suppress identification when no ID notice was given.  Falling asleep at trial, for god’s sake.  All terrible, but not necessarily actionable.  Why?  Because the defendant cannot prove actual innocence.

So if there’s no gun with a loaded legal malpractice bullet in it pointing at your head, why make the extra effort to do everything within your power to zealously defend your client?  Because they are human beings who deserve, by virtue of nothing more than the fact that they are human beings, to be treated with dignity.  Because we, as lawyers, have self-respect for what we try to do, and we know when we are giving it our all. 

This subject came up recently when a friend of mine, a commercial litigator, asked about my legal malpractice insurance, and why the cost for legal malpractice insurance is so low for criminal litigators.  He said to me, “You have nothing to lose, since you bury your mistakes.”  While it was a flip comment, it was certainly accurate.  My flip riposte, of course, was that it was because I don’t make mistakes.  One good turn deserves another.

But the hard, cold fact is that everyone makes a mistake at some point.  We’re human, and as such as subject to the frailties of humanity.  But that doesn’t mean that through care and sheer, unadulterated effort, we can minimize our potential to make a mistake. 

For most criminal defense lawyers, the fear of legal malpractice provides no motivation whatsoever to do the best job humanly possible for our clients.  It’s certainly true for me.  In its place, I have a much greater motivator than legal malpractice could ever provide:  I have to do my best possible work on every case because each one, each case and each client, reflect my respect for my own abilities, reputation and fellow human beings.  The cost for legal malpractice insurance may be cheap, but maintaining self-respect is priceless.