Choice of Counsel in Criminal Cases

The Sixth Amendment to the United States Constitution guarantees a defendant in a criminal case the right to a lawyer. For a person who can afford a lawyer, this right includes the right to an attorney of their choice. This means that if a person who can afford a lawyer wants to replace his or her paid attorney, they have the right to do so. Note that this is different than the right of a defendant who cannot afford a lawyer to move for the replacement of his or her court-appointed attorney (commonly called a “Marsden Motion”). See People v. Marsden (1970) 2 Cal.3d 118. Rather, the right to choice of counsel under the Sixth Amendment means that a defendant with financial means can choose to hire, fire, or replace his or her attorney at any time. See People v. Ortiz (1990) 51 Cal.3d 975. The court does have discretion in some instances to deny such a request. For instance, if the substitution of counsel would cause a significant delay, or disrupt the proceedings, a court can refuse to allow the person to replace their attorney. But if a person makes a timely request to replace their paid lawyer, and that request will not prejudice the person or disrupt the proceedings, the Sixth Amendment requires the court to grant the request. Id. A ruling denying the defendant his or her right to choice of counsel may be appealed, provided that a record is made. If no record is made, post-conviction relief may still be available by way of a habeas corpus petition.

About the Author

Lara J. Gressley

Lara Gressley

Lara Gressley has been an attorney for over two decades. She focuses her practice on criminal defense, DUI defense, and writs and appeals in state and federal court, and has worked on cases before the United States Supreme Court. Lara also lectures lawyers across California on various criminal defense topics.

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