Analyzing a Claim

Analyzing a Claim

A counsel-of-choice problem reduces to two questions asked in a fixed order: whether the trial court's refusal of the defendant's chosen lawyer was erroneous, and, if it was, what remedy follows. The second question takes no analysis. In United States v. Gonzalez-Lopez the Court held that erroneous deprivation or disqualification of a defendant's chosen retained counsel is structural error that requires automatic reversal without a showing of specific prejudice.¹ Since nothing further is needed once error is found, the contest in any fact pattern lies in the first question. That question has content because the right is not unlimited, and a refusal that rests on a recognized limit is no error at all.² The method below therefore screens for a valid reason to refuse before it reaches the remedy.

The first two steps test whether the defendant has a choice right in this lawyer at all. Step one sorts defendants by how they obtain counsel: a defendant who can pay may retain a lawyer of his choosing, while an indigent defendant is promised competent counsel and has no right to select the appointee.³ The sorting follows from who supplies the lawyer. When the defendant pays, the lawyer is his own selection and the court's only duty is to avoid interfering with it, whereas a court that supplies counsel at public expense cannot promise any particular match. Step two asks only whether the lawyer is licensed and admitted to practice in the jurisdiction. As a constitutional matter the lawyer need not have any particular level of experience or expertise, apart from a possible exception in death penalty cases.⁴

Steps three and four ask whether a legitimate interest of the court or the government overrides the choice. A trial court may refuse a lawyer whose joint representation of co-defendants presents a potential conflict of interest, because the adversary system depends on an advocate whose loyalty is undivided, and the defendant's own preference for the risk does not change that.⁵ The fee source is tested separately. In Caplin & Drysdale, Chartered v. United States the Court upheld a pretrial freeze of assets allegedly subject to forfeiture as the proceeds of a criminal enterprise, because the defendant has no right to spend money that does not truly belong to him. In Luis v. United States the Court reached the opposite result for a freeze of untainted assets sought only to secure payment of possible fines.⁶ The question at this step is therefore whether the money is tied to the crime, not whether the freeze happens to make hiring a lawyer harder.

Step five catches whatever remains. Ordinary docket control can also justify refusing the chosen lawyer, since the right to counsel of choice may not be insisted upon at the expense of the court's power to dispose of its docket in an orderly way, although the court must try to accommodate the defendant's choice where it reasonably can.⁷ A refusal that survives none of these screens is erroneous, and step six follows without further inquiry.

The facts of Gonzalez-Lopez show a claim that passes every screen. The defendant's family first retained a Missouri lawyer, and the defendant then hired a California lawyer, whose applications for admission pro hac vice the district court denied. The court went so far as to bar the California lawyer from sitting at counsel table or communicating with the local attorney who tried the case, and the court of appeals held that the denial of admission was error.⁸ Because the denial was erroneous, the violation was complete when the chosen lawyer was refused, whatever the adequacy of the substitute counsel, and the conviction was reversed.⁹ The Court later repeated that no additional showing of prejudice is needed to make such a violation complete.¹⁰

The two versions differ in one fact, and that fact decides the problem. In the first, the judge's reason was inexperience, and students lose points when they treat a lawyer's inexperience as a qualification limit, because the constitutional requirement is licensure and admission rather than a level of expertise.¹¹ In the second, the lawyer's divided loyalties supply a recognized ground, so the defendant's willingness to waive the conflict does not rescue the claim.¹² Whether the case turns out well or badly for the defendant at trial plays no part in either answer, since the analysis ends at the question whether the refusal was erroneous.

Two features of the surrounding procedure sometimes alter how the method is applied. First, the method assumes the defendant raised the refusal at trial. A claim that was never presented goes through plain-error review, where the defendant must generally show a reasonable probability that the error changed the outcome, and Olano left open whether plain structural errors can be reversed without that showing.¹³ Second, automatic reversal returns the case for retrial, and a harsher sentence after a new trial is limited by due process. The limit comes from North Carolina v. Pearce, which requires that the reasons for the increase affirmatively appear in the record and rest on objective information about identifiable conduct of the defendant occurring after the original sentencing.¹⁴