Criminal Law

Before You Fire Your Court-Appointed Lawyer

By Thomas Seigel, Attorney and Former Federal Prosecutor
Court-appointed lawyers aren't automatically less skillful than retained counsel, and are often just as good or better. Still, some situations call for a request for a substitute.

The Sixth Amendment guarantees the right to the assistance of legal counsel in all felony cases. If a person does not have the financial means to hire an attorney, courts will appoint a lawyer free of charge in all cases, including misdemeanors, that have the possibility of incarceration. Appointed lawyers come from either a public defender’s office or from a panel of local private attorneys approved by the court.

You do not get to pick your appointed counsel, but because the Sixth Amendment guarantee includes the right to “effective” assistance of counsel, you can, under limited circumstances, ask the court to replace your appointed attorney. In most cases, you should make every effort to salvage the attorney-client relationship before taking the significant step of asking a judge for a new lawyer.

The Advantages of a Court-appointed Lawyer

Many people assume that a public defender or other court-appointed lawyer will be less effective than private counsel. Though this is sometimes true, it’s often not true at all, for the following reasons:

  • Most public defenders are committed to the cause of justice and want to help you get the best result possible. They have the resources of a publicly-funded office (including investigators), which private attorneys may not have. In large cities, public defenders are often leaders in the defense community, with significant experience and ability.
  • Court-appointed private attorneys who are under contract to provide services are also likely to have extensive experience. Defendants who have the financial means hire these lawyers do so at their own expense; indigent defendants get their services for free.
  • Both public defenders and court-appointed counsel, who are in the courthouse all the time handling criminal cases, are likely to be familiar with the judge assigned to your case and the prosecutor handling it. That experience translates into solid and reliable advice. Few private attorneys can match the number of hours spent in criminal court by these lawyers, and their knowledge of the criminal justice system and the players in the courthouse generally works in your favor.

Handling Disagreements with Your Court-appointed Lawyer

If you are dissatisfied with your lawyer, your first step should be raise your concerns in a conversation. If the problem persists and your lawyer is a public defender, you may contact the lawyer’s supervisor. In rare cases, the supervisor may assign a different public defender. This would be done without court intervention. Be aware that a court may not give a new attorney much additional time, if any, to prepare for trial. You must, therefore, always consider how a decision to change lawyers might affect trial strategy and preparedness.

If you are unable to solve the problem without judicial intervention, you may ask the court for a hearing to request new counsel. You can normally make this hearing request directly to the court, but if you tell your current counsel of your wish to have this hearing, your lawyer would have an obligation to notify the court.

Before heading for court, be clear about your motivations. If you’re dissatisfied with your lawyer only because the lawyer is from the public defender’s office, you are not likely to prevail—a judge won’t readily agree that the office is, by definition, substandard. Even if you win, you may simply get another lawyer from that office (or, the judge may assign a court-appointed lawyer who agrees to take overflow cases). You will not be able to name a private lawyer and expect that the judge will appoint that person and pay for it.

Asking a Judge for a New Lawyer

At a hearing in which you ask for a new lawyer, the courtroom is typically closed to all but the judge, the defendant, and the appointed lawyer, and the record of the proceeding will be sealed. This means that neither the prosecutor nor the public will have access to a transcript of the proceeding. The defendant presents his grievance, the defendant’s lawyer responds, and the judge normally asks questions to clarify the dispute. The judge will attempt to resolve the disagreement without having to appoint a new lawyer.

If you seek a hearing, you must be prepared with organized and specific reasons. Successful arguments for new counsel generally involve a significant lack of communication, failure to investigate key evidence, and failure to make valid legal arguments. Remember that your “opponent” in this hearing will be your lawyer. In the case of a public defender, a supervisor might also be present. Your appointed counsel is likely to present the facts and the law in a different context than you would, and has a lot more experience with the court than you do.

Failure to communicate

Courts know public defenders and other appointed counsel are busy; you will need detailed support showing a lack of communication over a substantial period. Bring documentation such as records of unreturned phone calls, cancelled meetings, or missed jail or prison visits. In order to prevail, you will likely need to show a consistent pattern of failed communication that has prejudiced your ability to prepare for trial.

Failure to investigate

If you believe that your counsel has failed to interview witnesses, review documents, or obtain expert assistance on technical matters, these concerns may support a request for new counsel. However, your lawyer may be able to provide the court with legal or strategic reasons why the investigation you seek will not be beneficial to your case. The court does not have to agree with your counsel’s pre-trial strategy as long as it is reasonable.

When claiming that your lawyer has failed to investigate, keep in mind the potential consequences to the upcoming trial, particularly if the hearing judge will also try the case. As a defendant, you may not want to go into detail about the underlying facts. While you are free to speak at the hearing and remain silent at the trial, you may face negative consequences if you decide to testify at trial and contradict what you have said at the hearing. If you, or any defense witness, contradicts your statements from the hearing, the judge could unseal the transcript to allow the prosecutor to use your prior inconsistent statements against you.

An additional concern is that you might inadvertently say something that prejudices your case. For instance, assume your appointed lawyer thinks you have a good entrapment defense. If you speak without the aid of counsel at the hearing, you might, without realizing it, make careless statements that eliminate your lawyer’s ability to argue you were improperly pressured by law enforcement to commit the crime. Even if you have a different trial judge, your lawyer, under standards of professional conduct, will not be able to present a defense that is at odds with your prior sworn statements.

When claiming a lack of investigation, therefore, focus on the evidence that you want your lawyer to track down and how it might be helpful to your defense. To the extent possible, avoid giving your own version of events and your interpretation of the alleged criminal conduct

Failure to present a specific legal argument

You may feel that your counsel should have made certain legal motions, like a request to exclude certain evidence (such as statements made to arresting officers or items seized during a search). This argument is usually a long shot. Judges are reluctant to second-guess the legitimate legal strategies of counsel, and are unlikely to replace attorneys if they can articulate a reasonable basis for choosing not to make the legal motions you seek.

Losing Your Motion to Replace Counsel: Next Steps

If the court refuses to appoint new counsel and you remain adamant that your lawyer is unacceptable, you could file a complaint with the state bar. This complaint would cause an immediate conflict of interest between you and your attorney and would require your attorney to ask the court to appoint a replacement. A bar complaint is a drastic step. It is likely to frustrate the judge, who has already denied your request, and may only get you another lawyer from the same public defender’s office or panel of court-appointed attorneys. Think very carefully before pursuing this extreme option.

Whether you can appeal a judge’s refusal to appoint new counsel will differ depending on the state (in federal court, defendants have to wait until the case is over and on appeal). Immediate appeals, where permitted, are technically called “petitions for a writ of mandamus,” and they are rarely filed or granted. On the other hand, if you proceed to trial and lose, you can always raise the judge’s refusal to grant your request in the direct appeal of your conviction, arguing that your lawyer’s ineffective assistance played a significant role in the case. Some defendants also file a companion petition for a writ of habeas corpus, in which they present evidence beyond what was presented at trial to substantiate their claim that they received ineffective assistance of counsel.

Awaiting a criminal trial is a nerve-racking experience. It strains the best of relationships. You must keep in mind that court-appointed lawyers are not less effective simply because you have not hired them. You are entitled to a competent and committed attorney, and in the vast majority of cases, public defenders and other appointed counsel meet that standard.

Questions to Ask Your Lawyer

  • What can I do to improve our communication?
  • How many similar cases have you handled?
  • Can we have a meeting with your supervisor to help me understand the strategy?
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