Why The Right To Choose Counsel Matters

Today the Supreme Court will hear argument in the case United States v. Gonzalez-Lopez. SCOTUS Blog has a nice summary of the issues here. The case involves a criminal defendant who, for various reasons related primarily to guild protection, was denied the chance to be represented by the attorney of his choice. The U.S. takes the position that even though this may have violated the defendant’s Sixth Amendment rights, he should lose his appeal unless the attorney he didn’t want was “ineffective”. The problem is that the Strickland v. Washington definition of ineffectiveness, as it has evolved, misses some core aspects of criminal lawyering. One of the critical problems with the Strickland analysis is its focus on strategic moves: trial skills, evidentiary choices, objections, and the like. Admittedly, the Court has begun to take seriously the importance of pretrial investigation in capital cases. Yet the attorney-client relationship – that (hopefully) large bundle of time and joint effort that occurs before trial – receives short shrift. And it often has at least as large an effect on overall case outcome. An attorney who successfully builds trust with her client can do a much better job for him. And a client’s decision to hire a particular attorney is a good first step in that process.

First, there is the matter of plea bargaining. While plea bargains are usually available in criminal cases, they almost always require a modicum of attorney-client trust. Why? First, if the deal requires a defendant to cooperate with the goverment, the defendant must trust the lawyer to handle this sometimes dangerous transaction properly. Second, when a deal is available, many defendants will not accept it if they think their attorney has negotiated inadequately or, worse, is in league with the prosecution. The higher the stakes in the case – when a defendant is facing decades in jail, for example – the more a defendant must trust his lawyer.

There is also the matter of trial preparation. Defendants often have a great deal of knowledge that can help secure a better deal, or result in a better trial outcome. They know witnesses. They know the facts of their own crimes. They know their own personal history. But defendants are often reticent about sharing this information with lawyers they don’t trust.

Finally, there is the trial itself and, particularly, a defendant’s decision whether to testify. Defendants often want to tell their story. Defense lawyers often want them to remain silent. This decision ultimately rests with the defendant. If he doesn’t trust his lawyer, he is less likely to listen to her advice.

When a person selects his own counsel, he is taking the first step toward building a valuable relatioinship with his attorney. When that process is disrupted by courts, it will inevitably have real consequences. Even if the “show” looks identical – the cross-examination is great and the closing sublime – the process will have changed, and quite possibly for the worse. In recent years, the Court has sometimes shown a greater appreciation for the complex task of criminal lawyering. I hope that their decision in Gonzalez-Lopez reflects sensitivity to the fact that lawyers are simply not fungible.

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7 Responses

  1. Simon says:

    Why wouldn’t this principle implicate all cases in which counsel is appointed by the court? I would think that the accused’s trust for counsel would be at its nadir in such cases, but we do not insist that an indigent defendant gets to survey a pool of potential public defenders to pick out the one s/he trusts and feels most comfortable with.

    I also remain confused as to how courts are to maintain the ability to define standards for practise before themselves in the face of an unrestricted right to choose counsel? Doesn’t the Supreme Court’s own rule 5 circumscribe the choice of counsel available to a litigant? What about FRAP 46? To be sure, most courts have a pro hac vice rule, but the point of that rule is to make a discretionary exception to a general rule in appropriate circumstances; what becomes of the exception absent the rule? It seems to me that what is really at issue here is whether or not rules such as these – which unquestionably restrict one’s choice of counsel – are constitutional. What am I missing?

  2. Anonymous says:

    “They know the facts of their own crimes.”

    Wow. So you assume that all defendant’s are guilty? That certainly colors your analysis.

  3. Daniel Millstone says:

    This is not a case concerning court appointed lawyers. All the lawyers here were getting paid.

    In this case, there was a actual attorney preferred by the defendant. That attorney’s motion to appear was denied by the court on the ground that the new attorney had communicated with the defendant while the defendant was still represented by the old attorney — (a violation of the state disciplinary rule against stealing clients?).

  4. Simon says:


    Well, the instant case (as it seems to me, at least) is whether a court may have rules for practising before itself. The respondents in this case seem to be asking the court to say that an application to appear pro hac vice is a mere formality, since to recognize a right of litigants to be represented by any counsel of their choice is to deny the power of a court to exclude a counsellor from practise before the court. So I think this is actually a very simple case: will the Supreme Court of the United States declare that no court – itself included – can ever again deny a pro hac vice application?

  5. CBH says:

    Actually, the Eighth Circuit found that the district court judge had no legitimate reason for denying chosen counsel’s motion for admission pro hac vice, and there is an inference to be drawn that the district court judge was trying to punish the attorney for something that occurred in a previous case.

    Tony Mauro has an interesting article about the case in the Legal Times:


  6. ed says:

    Forgive me for beliving that the Constitution actually means what it says, but “right to counsel” would imply any damn fool that you wish to have. It doesn’t say “counsel that has been approved by third parties” but counsel unqualified.