Discovery Errors = Ineffective Assistance of Counsel?

In the criminal world, ineffective assistance of counsel can be a valid argument on appeal and in other contexts.  But does it apply in a civil suit?

Holper v. Coburn was a lawsuit between two competing traffic ticket law firms.[1] Coburn won summary judgment and Holper appealed.  One of his arguments was that “his counsel’s numerous failings to engage in discovery amounted to ineffective assistance of counsel warranting reversal.”  But, as the Court of Appeals noted, “Plaintiffs in civil cases generally have no right to the effective assistance of counsel.”[2]  The Court of Appeals adopted an exception from the Ninth Circuit, which noted a “presumption that, unless [an] indigent litigant may lose his physical liberty if he loses the litigation, there is generally no right to counsel in a civil case.”[3]  That exception did not apply as the case was “a purely civil tort action, and because there is no allegation or indication that Holper is an indigent litigant in danger of losing his physical liberty….”




[1] No. 74592, 2019 Nev. App. Unpub. LEXIS 413, 2019 WL 1858869 (April 24, 2019)

[2] (emphasis in original).

[3] Citing Nicholson v. Rushen, 767 F.2d 1426, 1427 (9th Cir. 1985).