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Abstract

In 2006, the Supreme Court handed down a decision in United States v. Gonzalez-Lopez emphasizing the importance of a defendant’s right to counsel of choice under the Sixth Amendment and holding a denial of this right constitutes structural error, requiring automatic reversal. Following that decision, several federal circuit courts and state appellate courts have questioned how to apply this right to circumstances where the right to choice of counsel and the right to appointed counsel overlap. When a defendant seeks to replace retained counsel for appointed counsel, should the standard governing his motion fall under the right to choice of counsel? Or should such the motion fall within the purview of the right to appointed counsel? Despite the fact that defendants have sought to replace retained counsel with appointed counsel for decades, the Supreme Court has never established a clear standard to apply under these circumstances. Because of this lack of guidance, lower courts have split on the standard to apply in these circumstances.

As recently as April 2016, the Eleventh Circuit held that the right to choice of counsel standard should govern and that a defendant need not show any cause to support his request to substitute retained counsel. In so holding, the Eleventh Circuit rejected the First Circuit’s standard that a defendant must demonstrate good cause to succeed in a motion to substitute retained counsel for appointed counsel.

In order to resolve the conflicting standards employed by the lower courts, a clear rule needs to be established to both protect the defendant’s right to counsel of choice and preserve judicial efficiency and fairness to all participants in the trial process. By adopting the Eleventh and Ninth Circuit standard that a defendant need not demonstrate good cause in order to replace his retained attorney, the Court would provide a clear rule that would protect the defendant’s constitutional right to counsel of choice. At the same time, the defendant’s right to choice of counsel should be considered a rebuttable presumption. The Court should allow the presumption in favor of counsel of choice to be overcome by a trial court’s factual findings that a motion to substitute would lead to delays that would cause unfairness or perceived unfairness, or would unduly inconvenience participants in the trial process. By establishing this rebuttable presumption, the Court would provide clear guidance to lower courts struggling to ensure efficiency while at the same time protecting a defendant’s constitutional right to counsel of choice.

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