St. Mary's Law Journal


If the presence of a sleeping attorney is so egregious as to result in a reversal of a criminal conviction, it is surely enough to warrant the imposition of civil damages upon the same attorney. A recent trend of cases in which criminal defendants alleged ineffective assistance of counsel—due to sleeping attorneys—resulted in courts being unable to create a uniform analysis for ineffective assistance of counsel. The Sixth Amendment protects a criminal defendant’s right to effective assistance of counsel, and the Supreme Court has devised a two-prong analysis by which claims of ineffective assistance must be reviewed. Burdine v. Johnson impacted the standard of review for legal malpractice in Texas based on the Fifth Circuit Court of Appeal’s adoption of a potential rule of presumption for ineffective assistance of counsel claims. In addition to affecting a criminal defendant’s ability to prevail on appeal due to ineffective assistance of counsel, the Burdine decision should also affect their ability to prevail in a legal malpractice civil action against the sleeping attorney. The analogy of Burdine to the standard of review for legal malpractice proposes either a negligence or strict liability standard of review for legal malpractice tort actions based on sleeping attorneys and the presumption of negligence under professional responsibility standards. Under the Texas Rules of Disciplinary Procedure, there is an appropriate presumption of prejudice in criminal malpractice cases based on the presence of a sleeping trial attorney. A civil court could find an attorney guilty of malpractice if they sleep through portions of the trial. A conviction based on ineffective sleeping counsel is a circumstance wherein a presumption of negligence is warranted in subsequent legal malpractice causes of action.


St. Mary's University School of Law