The Right to Counsel of Choice

Connecticut adopted the public defender system in 1917. Public Acts 1917, c. 225. Under this act, the judges of the Superior Court annually appointed a member of the bar who had practiced at least five years to represent persons accused of crime. By chapter 129 of the Public Acts of 1921, the original act was implemented so that it assumed substantially its present form. Rev. 1958, §§ 54-80 and 54-81. Under it an accused who lacks funds is assured of representation by experienced counsel, who, subject to the court’s approval, are able to incur whatever expense is necessary for the proper protection of the rights of the accused, not only in the trial court but also on appeal.

State v. Reid, 146 Conn. 227 (1959). And so, since 1917, have public defenders been called agents of the prosecutor, public pretenders and have had their educational qualifications besmirched. While I have often argued on this blog and in real life that these charges are false and nothing more than urban legends, I cannot escape the reality that there are, of course, public defenders (and private attorneys) who are just terrible lawyers who either care nothing about their clients or, as these things go, are hideously incompetent.

Having accepted that it is inevitable that some public defender clients will experience warranted dissatisfaction with their “court-appointed” lawyer, the interesting question is what should they be permitted to do.

But to get there, we have to start at another beginning.

The Sixth Amendment, as you all should know, provides that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence.” That has further been explained to mean that “the right to counsel being conceded, a defendant should be afforded a fair opportunity to secure counsel of his own choice” Powell v. Alabama. In the seminal case on the right to counsel of choice, Wheat v. United States, the Rehnquist court wrote:

In United States v. Morrison, 449 U. S. 361, 364 (1981), we observed that this right was designed to assure fairness in the adversary criminal process. Realizing that an unaided layman may have little skill in arguing the law or in coping with an intricate procedural system, Powell v. Alabama, 287 U. S. 45, 69 (1932); United States v. Ash, 413 U. S. 300, 307 (1973), we have held that the Sixth Amendment secures the right to the assistance of counsel, by appointment if necessary, in a trial for any serious crime. Gideon v. Wainwright, 372 U. S. 335 (1963). We have further recognized that the purpose of providing assistance of counsel “is simply to ensure that criminal defendants receive a fair trial,” Strickland v. Washington, 466 U. S. 668, 689 (1984), and that in evaluating Sixth Amendment claims, “the appropriate inquiry focuses on the adversarial process, not on the accused’s relationship with his lawyer as such.” United States v. Cronic, 466 U. S. 648, 657, n. 21 (1984).

As Justice Scalia noted so forcefully in United States v. Gonzalez-Lopez, the Sixth Amendment right to counsel of choice “commands, not that a trial be fair, but that a particular guarantee of fairness be provided—to wit, that the accused be defended by the counsel he believes to be best. The Constitution guarantees a fair trial through the Due Process Clauses, but it defines the basic elements of a fair trial largely through the several provisions of the Sixth Amendment, including the Counsel Clause.”

In other words, a defendant should have the right to choose the person he wants to represent him during his criminal proceeding. This makes sense. After all, the stakes in a criminal trial are extremely high, usually involving the liberty and freedom of the accused. The ability to choose counsel will determine the amount of trust that the defendant places in his lawyer, his receptiveness to advice given by the lawyer and the reliance on that advice. Criminal defense lawyers will attest that there is nothing more important to the relationship between them and their clients than the trust that must exist.

And yet. And yet this “particular guarantee of fairness” is qualified. It is limited and circumscribed. This right is freely given to those that can afford to hire their own counsel, yet withheld from the overwhelming majority of criminal defendants, who do not have the financial resources to do that. The poor and the indigent have no such right to choose the lawyer that will represent them as they undertake the arduous and perilous task of navigating the ferocious and choppy waters of the modern day criminal justice system.

Scalia again:

Nothing we have said today casts any doubt or places any qualification upon our previous holdings that limit the right to counsel of choice and recognize the authority of trial courts to establish criteria for admitting lawyers to argue before them. As the dissent too discusses, post, at 3, the right to counsel of choice does not extend to defendants who require counsel to be appointed for them. See Wheat, 486 U. S., at 159; Caplin & Drysdale, 491 U. S., at 624, 626.

(More on this assertion later, but for now, let us take it at face value.) If this is a right that is so valued and so important, what is the justification for limiting it to only that minute percentage of the criminal defendant population: the one with money?

Further hidden within this right is the assumption that, barring a last-minute switch, defendants who have the funds to hire private attorneys are free to fire and hire as many as they want, usually for no reason whatsoever. Public defender clients are stuck with the luck of the draw.

Of course, I can’t realistically make the argument that indigent defendants should be able to pick and choose the public defender they want to represent them or force the State to pay for a private attorney to represent them. I’m not arguing for some sort of Bunny Ranch lineup at arraignment where the indigent defendant looks us all up and down and picks the one he likes the best. It would be a nightmare of epic proportions to have such a system and, of course, a publicly funded defense system should have some reasonable limitations for logistical purposes.

But inherent in the right to counsel of choice is the right to fire that attorney and no longer have him or her represent you if you feel that their representation doesn’t permit you to present your defense in the most optimal way possible. It is the substitution of counsel where I part ways – ideologically – with the courts.

The system as it currently exists makes it near impossible for indigent defendants to fire their court-appointed lawyers and have them replaced by other court-appointed lawyers with whom they might be more comfortable and in whom they might place greater trust. Why must this be so? Why must we thrust upon the poorest of the poor only two untenable choices: either proceed pro-se or proceed with a lawyer in whom they clearly have no trust?

And this brings me back to my original point: there are incompetent public defenders just as there are incompetent private attorneys. Yet those who are burdened with the incompetent private attorney have a much easier path to ridding themselves of that potentially dangerous attachment than those who have no financial resources. In essence, the courts are sanctioning a system whose motto might as well be “you get what you pay for”. And they pay nothing, thus, should expect nothing in return.

Certainly there is the potential for abuse, but just as there are safeguards built into the right to counsel of choice for rich defendants, there could be similar safeguards to ensure that indigent clients don’t just fire and ask for new assigned counsel willy-nilly. Yet the current standards are so high – and as can be seen from the language in Gonzalez-Lopez, entirely discretionary – that in effect we are placing a stamp of approval on a two-tier system.

Of course, mere displeasure with his options should never suffice to permit substitution, but why shouldn’t an indigent defendant request and receive alternate counsel if he can reasonably show that the lawyer is not communicative or dismissive or wishes to pursue defenses that the client wants no part of? [See quote from United States v. Calabro, below, for the current standard.] The public defender system doesn’t exist so I get to practice the art and skill of being a lawyer; it exists so that I may provide a much needed service to a large section of the community. Why must those that I purport to serve be saddled with my ineffectual representation merely because they are too poor to hire someone else whom they feel would benefit them more?

It certainly seems cumbersome, but unworkable it is not. While a rule such as the one that I have pondered above may increase the rate of substitutions somewhat, I suspect that there will be no astronomical rise in the number of public defenders fired by their clients, just as we don’t see a revolving door of private attorneys on a regular basis.

And isn’t the additional logistical quandary worth the lip-service we pay to these “fundamental rights” and worth dispelling the notion that there exist two criminal justice systems and two types of criminal defense lawyers? Isn’t faith in the system inimical to its continued viability?

While researching the relevant cases for this post, I went on a frolic to determine just where this distinction between substitution of private attorneys and public defenders comes from. I now invite you to join me on this invigorating journey into the bowels of Constitutional jurisprudence.

First, let us start with Gonzalez-Lopez. As reproduced above, it cites Wheat and Caplin & Drysdale for the proposition that indigent defendants have no right to counsel of choice. Caplin & Drysdale, in turn, cites Wheat. On this issue, Wheat states the following:

Similarly, a defendant may not insist on representation by an attorney he cannot afford or who for other reasons declines to represent the defendant.

That’s it. There’s no attendant citation to any other case. That’s fine. Maybe Rhenquist got lazy and didn’t want to cite to every goddamn proposition already. So let’s try another tact. Here’s the most recent citation in a Connecticut case that I could find. In a footnote:

Moreover, it is well settled that “a criminal defendant does not have the right to have the public defender of his choice.” State v. Oliphant, 47 Conn. App. 271, 278-79, 702 A.2d 1206 (1997).

State v. D’Antonio, 274 Conn. 658, fn. 41 (2005). Okay, so let’s go to Oliphant:

[O]ur law is clear that a criminal defendant does not have the right to have the public defender of his choice. McKee v. Harris, 649 F.2d 927, 931 (2d Cir. 1981), cert. denied, 456 U.S. 917, 102 S. Ct. 1773, 72 L. Ed. 2d 177 (1982); State v. Nash, 149 Conn. 655, 663, 183 A.2d 275, cert. denied, 371 U.S. 868, 83 S. Ct. 130, 9 L. Ed. 2d 104 (1962).

Well, that’s just another citation. Okay, I’ll bite. First McKee:

It is settled in this Circuit that “[o]nce trial has begun … a defendant does not have the unbridled right to reject assigned counsel and demand another.” United States v. Calabro, 467 F.2d 973, 986 (2d Cir. 1972), cert. denied, 410 U.S. 926, 93 S.Ct. 1357, 35 L.Ed.2d 587 (1973).

You see where this is going now. Calabro:

The second branch of Leonard’s argument, closely entwined with the first, is that the court ought to have assigned new counsel once Leonard had dismissed Rosenthal. Once trial has begun, however, a defendant does not have the unbridled right to reject assigned counsel and demand another. United States v. Burkeen, 355 F.2d 241 (6th Cir.), cert. denied sub nom. Matlock v. United States, 384 U.S. 957, 86 S.Ct. 1582, 16 L.Ed.2d 553 (1966); United States v. Paccione, 224 F.2d 801 (2d Cir.), cert. denied, 350 U.S. 896, 76 S.Ct. 155, 100 L.Ed. 788 (1955). A defendant with assigned counsel cannot decide for no good cause on the eve or in the middle of trial that he will have another attorney represent him. Cf. United States v. Abbamonte, 348 F.2d 700 (2d Cir. 1965), cert. denied, 382 U.S. 982, 86 S.Ct. 557, 15 L.Ed.2d 472 (1966)(retained counsel).

In order to warrant a substitution of counsel during trial, the defendant must show good cause, such as a conflict of interest, a complete breakdown in communication or an irreconcilable conflict which leads to an apparently unjust verdict. Brown v. Craven, 424 F.2d 1166 (9th Cir. 1970); United States v. Grow, 394 F.2d 182, 209 (4th Cir.), cert. denied, 393 U.S. 840, 89 S.Ct. 118, 21 L.Ed.2d 111 (1968); United States v. Gutterman, 147 F.2d 540 (2d Cir. 1945). If a court refuses to inquire into a seemingly substantial complaint about counsel when he has no reason to suspect the bona fides of the defendant, or if on discovering justifiable dissatisfaction a court refuses to replace the attorney, the defendant may then properly claim denial of his Sixth Amendment right. Brown v. Craven, supra. In the absence of a conflict which presents such a Sixth Amendment problem, the trial court has discretion to decide whether to grant a continuance during the course of trial for the substitution of counsel, and that decision will be reversed only if the court has abused its discretion.

(Emphasis added.) Hang on a second. Burkeen, Paccione and Abbamonte all stand for the proposition that you can’t just dick around with lawyers on the eve of or in the midst of trial. That standard’s no different for privately retained attorneys or public defenders! Look at that second paragraph, which states the standard for substitution of counsel, again during trial. The word “indigent” is missing as is the word “assigned”. So where does this general proposition that indigent defendants have no right to counsel of choice come from?

Okay, so I skipped over a case up there: State v. Nash. Let’s go see what that says. Nash is a fascinating case, least of all for the fact that it calls people “paupers” instead of indigent. Nash was a guy who was convicted in 1947 of murder or some such thing and then spent 19 years in jail without appealing. One day, apparently after he was unsuccessful in his bid to unseat Rip Van Winkle as the sleepiest man ever, he decided to you know what, file that appeal after all. A federal habeas was granted and the appeal restored in the CT Supreme Court. The court, now that he was  a pauper, tried to get him a public defender to help him with the appeal. Nash, being the asshole-y type, instead sent the court a list of three private attorneys he wanted to be represented by. The Court, naturally, laughed heartily in their private chambers, smoking their pipes, while morse-coding each other salacious dots and dashes, or whatever it is they did back in the stone ages.

That case has little to do with the ability of an indigent client to fire one public defender and be represented by another. But there is another case that Nash cites: State v. Reid, which I opened this post with (now tell me I don’t pull things together!). Reid, unsurprisingly, is only marginally connected to that proposition, instead holding quite sensibly that a person can’t fire a public defender and then have the court pay a private attorney to represent him, just because.

But Reid is beautiful for one other reason:

A further claim, covered by no assignment of error, is that any public defender system, including that of Connecticut, wherein public defenders are appointed by the judiciary, must necessarily result in defenses which are at least potentially ineffective. This result is claimed in some way to flow from the fact that both state’s attorneys and public defenders receive their appointments from the same source and that this source is the judiciary. Of course, the main reason for appointment by the judiciary is to insulate these officials from improper pressures or influences from any source, political or otherwise, and to insure that they may fearlessly prosecute or defend, as the case may be, regardless of the public temper of the moment, or the power, influence or connections of the parties involved. The attack on our public defender system is too obviously lacking in merit to warrant discussion. Its best refutation is the work of the public defenders themselves in the more than forty years in which the system has been in effect in Connecticut.

The cockles of my heart, they are warmed.

So does this distinction really exist or have any basis in Constitutional jurisprudence? To be sure, a distinction is clearly stated in several cases, but the basis for that is non-existent. They are no more than assertions without reasoning or reliance on stare decisis. Should there be such a distinction? Are you awake? Are you alive? Hellooooo?

10 thoughts on “The Right to Counsel of Choice

  1. Max Kennerly

    I see a problem here: “why shouldn’t an indigent defendant request and receive alternate counsel if he can reasonably show that the lawyer is not communicative or dismissive or wishes to pursue defenses that the client wants no part of?”

    There are two assumptions underlying that question, first the assumption that an indigent defendant can recognize their attorney is doing something inadequate, and second the assumption that the indigent defendant can articulate this problem in a meaningful and persuasive manner. Yet, it is a hallmark of our system that clients rarely understand the process and are generally incapable of articulating problems in a manner recognizable by the courts and ripe for relief.

    Sure, there are exceptions to this, but let’s take even the most basic and obvious example of a problem: the public defender failing to fully communicate with the client. Apart from missing a hearing at which the defendant’s testimony was required (which essentially never happens up until trial), how will the client know that the lack of communication is not simple tardiness within the norms of a busy PD office but is in fact inadequate representation? More to the point, what are the odds that an indigent defendant will be able to communicate to the court a concept like, “I should have met with my PD well in advance of the suppression hearing, because I could have explained a number of detailed factual issues that, if raised, could have altered Your Honor’s conclusion as to whether or not consent was properly granted for the search of my vehicle”?

    It seems the only way this type of “switching horses” process could function would be some sort of systematic auditing of representation midway through, like if the public treasury was willing to pay $500 for the client to meet with an independent criminal defense lawyer who could review the docket and then talk with the client for an hour or two about what is going on in the case, and then, if there seems to be a problem, prepare a motion for switch of counsel. But that’s not an ideal solution for a whole host of reasons, not least the additional expense.

    1. Gideon Post author

      Well, first of all, the standard for what constitutes a complaint by a defendant is unbearably high. It has to be a “clear and unambiguous” statement, whatever that means.

      But clients aren’t that stupid. They’re all too prone to voicing their disagreement, if anything. And your hypothetical operates within the framework of the current system where clients don’t know that they should have a right to have substitute counsel if their current counsel isn’t performing adequately or to their satisfaction. If that were made the norm, I’m pretty sure that those who wanted to, would be able to articulate their reasons for their dissatisfaction.

      1. Max Kennerly

        But then you have a squeaky-wheel system: clients who are savvy enough to make a “clear and unambiguous” complaint will get another bite at the apple, even though they’re the ones who need it the least and they’re also the ones most likely to be able to afford private defense counsel if they were so inclined. In turn, clients who are not entirely on the ball will continue to float through the system oblivious to any problems until after they’re sentenced and an appellate lawyer starts asking questions.

        I just don’t see getting from Point A to Point B without a lot of problems. Only way I can see to fix it is some sort of mandated pre-trial audit of the current lawyer’s performance.

  2. nidefatt

    To be fair, judges are not often fans of defense counsel. If there’s a PD who is truly incompetent, a judge is probably likely to take seriously a request by his/her client to have said PD taken off the case and replaced.

  3. Miranda

    Should there be a distinction? No. I don’t think we’re ever justified in treating criminal defendants differently based on whether they’re poor. The view I’ve seen from judges isn’t that a wealthy defendant is entitled to change attorneys, but more that the judge can’t stop it from happening as long as the process doesn’t delay the proceedings. I think the idea that indigent clients can’t change lawyers at will isn’t rooted in any law or principle, but in the belief that judges are charged with running their courtrooms and ensuring judicial efficiency. Not saying this is right, but it’s what I’ve come to believe.
    The biggest problem is that judges (generally, the ones I’ve seen) don’t care. I have had clients try to fire me. I have moved to withdraw from cases where the client was so unreasonably antagonistic and paranoid that no trust existed. In both cases, the reaction of the judges was that this was a ploy by the client to delay proceedings. The question asked was, “what will keep [client] from doing this with his next lawyer?” My answer was that his motive and whatever happened in the future didn’t change the fact that we had no workable relationship, thus depriving him of his right to effective assistance. I was allowed to withdraw only once, based on a conflict that made me unable to provide effective assistance of counsel, and there were extenuating circumstances. Maybe there should be a standardized proceeding, with certain thresholds that have to be met, that a client is entitled to when this sort of claim comes up. The judge would still have discretion, but it might bring some uniformity.
    In my experience, with my few clients who tried to fire me, they may not have been able to articulate complex legal issues, but they never had a problem telling the court why I sucked. They didn’t assume that failure to communicate was typical PD turnaround time – in fact, they thought a three-day delay from me receiving their prison mail to getting my response was me not communicating with them. If I explained why I wouldn’t adopt the motion they drafted or agree with their trial strategy, it was because I was just trying to screw them and secretly worked for the prosecution. But, in my last PD job, I worked only with people already incarcerated in state prison, so maybe my clients were more jaded or had been influenced by writ writers.
    Sorry if this reply is incoherent. I’m very tired today.

  4. cranky

    As a non-lawyer it was interesting to read your detective work on the law in this area.

    Really interesting for me though is the cultural resistance rather than any naked legal barriers PD clients meet if they decide to complain to their PD lawyers or PD supervisors about the quality and progress of their representation.

    My impression is that PD clients can and do get reassignments but only if they can articulate their objections very, very well and are very, very persistent.

    Complaining is a game changer — Suddenly their layman’s way of making arguments and supplying information to their side is insufficient – they have to be as good as a lawyer to get the PD’s office to budge when, obviously, the reality is the PD’s office otherwise has no problem gleaning from the client’s ordinary language what the issue is and whether it has any merit.

    In other words they get their backs up. Lawyers who are on their side, suddenly are adversaries fighting to win.

    Mr. Kennerly’s response as much as confesses that you need a lawyer to address your lawyer. My feeling is, No, you don’t unless you make a client need one for that. It’s improper because the lawyer is still obligated to look out for the client’s interest. It’s also a defeatist attitude.

    I think the idea of auditing representation is defeatist too as a first-line remedy. It is backup.

    It is better just to try to be better, not by looking up case law, but by looking up to your clients, instead of down.

    There are all sorts of methods people propose who just really don’t want to deal head-on with things. A PD entity should simply guard against knee-jerk reactions to client complaints, resist the urge to be defensive, resist the urge to turn their lawyerly argumentative skills onto the client and so on. Entities over-react. To a person – each lawyer, supervisor and the lawyers in the chief public defender’s office — just have to get real in situations like that and insist on being decent, honest and solution oriented. It’s not that big a deal.

    Even the healthiest lawyers have a tendency to be too argumentative, really. In the case I am familiar with where a reassignment was made, a supervisor had to be reminded several times that he was arguing against the clients request simply for the sake of winning and that he was arguing with his side, the client. He was receptive to that reminder, thankfully. Lawyers as a whole really need to guard against this occupational injury, seriously.

    If a client has a legitimate beef, they should get it remedied by a reassignment or by the assigned lawyer adjusting things between them.

    And the office as a whole should be very proactive about it, not taking a bunker mentality. For instance, if any see it happening they should not wait for a complaint from the client. It is in self-interest as well – An office that does that is engaging in self-improvement, increasing its competence and therefore its reputation.

    Personally I think the public defender’s office in Connecticut should be looking at becoming more creative and more dynamic and more proactive overall in its criminal defense. I think that is more important than taking comfort in some silly rhetoric from Reid about the supposedly lofty status the office has in some abstract world that floats somewhere above politics. The office is far from activist. It can not be described by anyone as being dynamic, that’s for sure. The fact that it is an appointed body of the judiciary is of course the number one area one looks to for reasons why that is. When I see the office doing something more exciting, I will be assured that the office is truly asserting its independence. That would be thrilling. That the office is overall smarter and more competent than in lots of states is already clear – nothing special there. Don’t believe in the myth of your independence.

    By the way, I thought that quote (it is from the Reid case, right?) was hilarious:

    “Of course, the main reason for appointment by the judiciary is to insulate these officials from improper pressures or influences from any source, political or otherwise, and to insure that they may fearlessly prosecute or defend, as the case may be, regardless of the public temper of the moment, or the power, influence or connections of the parties involved.”

    You don’t really believe our system eliminates politics, do you? You can’t think of any excellent lawyers who couldn’t be appointed as prosecutors or public defenders because of politics?

    The whole appointment boondoggle has been misrepresented. For instance, the only thing wrong with electing judges is not the voting part, but the campaign finance part. The assertion that voters elect less competent judges just isn’t born out by facts and shouldn’t be a reason for appointing judges. But you hear and read all the time that appointment 1. eliminates politics (false – and the politics of appointment arguably is more insidious than the politics of popular vote). and 2. it leads to more competent judges. (Also false)

    This is true though: 3. It eliminates the corrosive affect campaign contributions can appear to have or can actually have on the independence of judges.

    Mostly, appointment procedures are the servant of elitist forms of political society like Connecticut’s. The process mutes any pressures coming from outside of the consolidated, predictable powers that do the appointing. The office is not insulated from the powers that do the appointing. That’s not only obvious, it is apparent!

  5. Lili

    Can someone PLEASE tell me is it appropriate for a Superior Court Judge order a Public Defender to stand in place of a private counsel, in absentia, during the final sentencing phase of a criminal matter? Hence, My daughter was wrongfully sentenced to a “CONSECUTIVE” term of 16 months; she was hysterical & devastated. As far as I know, she should have had her sentence ran “CONCURRENT” instead since she filed Section 1381. I spoke with Francis of the State Bar of California and she couldn’t advise me. I tried to find provisions of the Rules of Court but of to no avail.
    She paid $10,000 to a terrible & negligent attorney, Joann Kingston who has a adverse of not showing up especially for crucial hearings like this and has been inaccessible to her client, my daughter. I don’t have a whole bunch of money as I’m on SSI myself….but, I know some parts of the legal process. I am assuming the only relief option we have now is an appeal but even that could take years…….PLEASE HELP ME, my email is “” or call me at (979) 548-0464/(888) 871-2818 x 102
    My deepest & profound gratitude during these trying times…..Happy Holidays!


  6. Paul K Grimsrud

    In Oregon the law enforces a profound difference between private and public defender. According to statute 151.211(Public Defense Services) a public defender may not use prosecutorial misconduct as a defense unless the client raises the issue. This law is of course controversial, it has been “stalled” in the notes section of the Oregon Revised Statues for eighteen years apparently for “review and evaluation.” In the mean time people have been sent to prison as result of this political confusion.
    I have not been motivated to participate in politics until this outrageous infringement of my constitutional rights. It has been difficult for me to learn even this much. The Oregon State Bar and the legislature have not be very forth coming. Any light you could shed on this subject or a possible source of more information would be much appreciated, thank you

  7. greyson2020

    Interesting post. Classic Scalia favoring the originalist text until it no longer suits his argument.

    I’m curious why – other than for sake of brevity – you don’t mention any of the inherent problems that stem from the other qualification the late venerable justice was so eager to apply his stamp of approval to: mandatory bar associations. It seems to me these two are closely related, as the high cost of private attorneys certainly derives in part from these protectionist policies.


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