Failure to Comunicate With Client Not Ineffective Assistance – State v. Gaither

Friday’s Appellate Division holding in State v. Gaither stands for two important legal propositions. First, the failure of appellate counsel to communicate with his client does not constitute per se ineffective assistance of counsel requiring a new trial. Rather, a defendant who seeks a new trial on this basis must also show that he was prejudiced in that, but for the lack of communication, the result of the appeal likely would have been different.

The second point clarifies the proper limitations on the legal issues that may be raised on direct appeal. Previously, the New Jersey Supreme Court has ruled that an attorney who represents a petitioner on a post conviction application matter must raise all issues desired by his client, including those that the attorney believes are utterly irrelevant or without merit. In Gaither, the Appellate Division ruled that the same standard does not apply to attorneys on direct appeal. Accordingly, appellate attorneys should only advance arguments that are relevant and have some degree of legal merit based upon the professional opinion of the advocate as opposed to the desires of the client.

Download a copy of State v. Gaither.

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