Does Right to Counsel Include Right to Change Counsel?

By Robyn Hagan Cain on November 03, 2011 | Last updated on March 21, 2019

Does the right to counsel guarantee a criminal defendant’s request for a new attorney before sentencing?

The Fourth Circuit Court of Appeals upheld a district court’s denial of a request for new counsel this week, finding that the court did not abuse its discretion in denying the defendant’s request.

Jose Luis Jaime Perez, was convicted of conspiracy to manufacture, distribute, and possess with intent to distribute more than five kilograms of cocaine. After his conviction but before sentencing, Perez moved to have the district court appoint him new counsel. The district court, which had previously appointed him new counsel before trial, denied Perez’s motion without a hearing.

At the sentencing hearing, the court heard from Perez on his motion. Perez said that he was unhappy with his attorney's level of preparation and that his attorney did not visit him often enough.

The court found that Perez's attorney's performance was above average and that Perez would be better off if he were represented by someone who was familiar with his case. It denied the motion for a second time.

The Sixth Amendment protects the right of an indigent defendant to be represented by counsel, but that right is not absolute; it cannot interfere with the administration of justice. As such, an indigent defendant is not permitted to haphazardly change lawyers to prolong a proceeding. A defendant can only demand a different appointed lawyer with good cause.

The Fourth Circuit Court of Appeals considers three factors when determining whether a court abused its discretion in denying a motion for new counsel:

  • Timeliness of the motion.
  • Adequacy of the court's inquiry into the defendant's complaint.
  • Whether the attorney/client conflict was so great that it resulted in a total lack of communication preventing an adequate defense.

Here, the Fourth Circuit noted that four months lapsed between Perez's conviction and sentencing, but he waited until two weeks before his sentencing date to request a new attorney.

While the appellate court noted that the district court could have considered Perez's request for new counsel before the sentencing hearing, it held that his right to counsel had not been violated since the court heard Perez on the matter before sentencing him.

Finally, the court ruled that the attorney/conflict had not escalated to the point that it affected Perez's right to counsel because Perez conceded that his attorney visited him, and the two of them did speak to one another.

Weighing the three factors against the district court's interest in efficiently administering justice, the Fourth Circuit found that the court correctly denied Perez's motion.

Do you think the three-part test sufficiently ensures a defendant's rights? Would it make a difference if Perez wanted to request a specific attorney who was ready to proceed with sentencing?

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