A criminal defendant (the person who's on trial for committing a crime) has the right to an attorney, or the "assistance of counsel," under the Sixth Amendment to the US Constitution. When a defendant can show the court that he truly can't afford an attorney, the court will appoint a lawyer to represent the defendant for free. If the defendant doesn't qualify for free legal counsel, he may hire an attorney and pay for her services out of his own pocket.

No matter whether a defendant's attorney is appointed or hired, there are times when the first lawyer leaves the case and a new one comes in, that is, there's a substitution and withdrawal of counsel. And, there's a variety of reasons for such a substitution and withdrawal. For instance:

  • An attorney may become ill and the court may order another lawyer to take over the case
  • The defendant and his attorney have a disagreement over important parts of the case and how it should be managed, such as which defenses should or should not be raised; what witnesses should or shouldn't be called to testify; and whether the defendant should or shouldn't testify
  • The attorney discovers a conflict of interest that makes him unable to continue representation, such as when another lawyer in his law firm has agreed to represent a co-defendant

Scenarios and Procedure

The steps to follow for the substitution and withdrawal of counsel are set out in the rules of the court where the trial is being held. The various federal courts and state courts each have their own rules about substitution and withdraw. In general, though, you can expect the process and rules to look something like this:

  • The attorney must file a motion to withdraw, that is, give the court and the defendant advance notice, usually in writing, stating he wants to leave the case. The motion should include an explanation as to why, and details about important upcoming dates in the trial (like when the trial is set to begin, when motions need to be filed, etc.)
  • The court's permission (or "leave of court") to withdraw is almost always needed when, at the time the attorney wants to withdraw, the defendant hasn't already hired or retained a new lawyer, that is, there's no immediate substitution of counsel
  • Permission of the court to withdraw isn't usually needed when the attorney asks to withdraw, and at the same time, informs the court that the defendant has hired or has been appointed a new lawyer and the new lawyer is a substitute for the attorney withdrawing. This is so, however, only if the substitution takes place within a certain number of days before trial is scheduled to begin, such as 30 days before trial

Don't Agree to Withdrawal?

In many cases, the attorney wants to withdraw as counsel but the defendant doesn't want him to. This may happen when the attorney thinks there are big or "irreconcilable" differences between how the defendant and the attorney want to defend the case but the defendant doesn't see any problem. Another example is when the defendant has been convicted and wants to appeal, but his court-appointed attorney doesn't think there's a good reason to appeal. In these circumstances, the attorney will generally have to explain to the court in detail why he should be allowed to withdraw. And, the defendant will get the chance to explain to the court why the attorney shouldn't be allowed to withdraw.

As a general matter, the courts will allow the withdrawal only if the attorney presents very good reasons for it, such as a true breakdown in communication between the attorney and the defendant; or the defendant's continued refusal to follow the attorney's advice leading to the attorney's inability to represent the defendant properly. These are just a couple of examples, and withdrawing from a case usually isn't very easy. The particular facts of each case and the details of the relationship between the defendant and counsel will determine if the attorney will be allowed to withdraw.

Questions for Your Attorney

  • I agreed to let my hired attorney withdraw, but now he won't turn over my case file unless I pay what I owe him. Can he do that? My trial is coming up soon, so what should I do?
  • My attorney asked for and was denied leave to withdraw three times. I was convicted, and now I'm wondering if he represented me as best he could. Do you think I can appeal my conviction on the ground that I didn't receive the effective assistance of counsel?
  • I was convicted and I immediately asked my court-appointed attorney to file an appeal, which he did, but he filed a motion to withdraw as counsel, even though he agreed that I have a good chance of having my conviction thrown out. Doesn't he have to represent me on appeal? Doesn't he have to at least get a new lawyer appointed to handle my appeal?

Tagged as: Criminal Law, lawyer substitution, criminal lawyer