The Sixth Amendment generally protects the right of a federal criminal defendant who can retain an attorney to be represented by the qualified lawyer the defendant chooses. A court may manage its calendar and enforce reasonable deadlines, but it cannot arbitrarily force a defendant to trial without retained counsel of choice.
If a federal court has denied you a reasonable opportunity to retain or proceed with your chosen attorney, contact federal criminal defense attorney Michael J. Petro immediately. An improper denial may violate the Sixth Amendment and require reversal of a conviction.
What Is the Right to Counsel of Choice?
A defendant who hires an attorney generally has the right to select the lawyer who will conduct the defense. This right recognizes that the attorney-client relationship involves trust, strategy, communication, and personal confidence.
The right is not limited to receiving competent representation. The Supreme Court has explained that the Sixth Amendment protects the defendant’s choice of a particular qualified attorney when the defendant retains private counsel.
This protection is different from the right to effective assistance of counsel. A defendant may be denied counsel of choice even if the lawyer who ultimately handles the case performs competently.
The Right Is Not Absolute
A defendant cannot insist on representation by an attorney who:
• Has an actual conflict of interest
• Is not admitted or otherwise qualified to appear
• Refuses to represent the defendant
• Has a disqualifying relationship with a witness or codefendant
• Was retained using money that is subject to lawful forfeiture
• Cannot participate without seriously disrupting the administration of justice
A judge also has authority to protect the integrity of the proceedings and manage the trial calendar. The constitutional question is whether the court reasonably balanced those interests against the defendant’s right to retained counsel.
Retained Counsel and Appointed Counsel Are Different
The right to counsel of choice generally concerns an attorney hired by the defendant. A defendant who requires appointed counsel has the right to effective representation but ordinarily does not have a constitutional right to select a particular court-appointed attorney.
A defendant seeking replacement of appointed counsel usually must establish good cause, such as a conflict of interest, a complete breakdown in communication, or another serious problem affecting the representation.
When a defendant has retained a qualified attorney, however, the Sixth Amendment provides greater protection for the defendant’s selection.
Can the Court Deny a Continuance for New Counsel?
A trial court has broad discretion when deciding whether to continue a trial. A defendant cannot automatically postpone a trial simply by retaining a new lawyer shortly before proceedings begin.
The court may consider:
• How long a continuance is requested
• Whether the defendant previously received continuances
• When the defendant retained or attempted to retain new counsel
• Whether current counsel is prepared for trial
• Whether the request is made for delay
• Whether new counsel is available and willing to appear
• The inconvenience to witnesses, jurors, attorneys, and the court
• The complexity of the prosecution
• The time reasonably required for new counsel to prepare
• Whether denying the request would effectively prevent chosen counsel from representing the defendant
No single factor automatically controls. The court must make an individualized decision based on the circumstances rather than apply an inflexible rule that every new attorney must accept the existing trial date.
When Does Denial Violate the Sixth Amendment?
The Supreme Court has explained that only an unreasoning and arbitrary insistence on speed in the face of a justifiable request for delay violates the right to counsel.
A denial may become unconstitutional when:
• The defendant retained qualified counsel who was prepared to enter the case
• The requested delay was reasonable
• The defendant was not attempting to manipulate the proceedings
• The court relied on a rigid scheduling policy
• The court failed to consider less disruptive alternatives
• The denial forced the defendant to proceed with an attorney the defendant did not select
• The court did not adequately investigate the circumstances surrounding the request
The record should identify why the defendant wants chosen counsel, when that lawyer was retained, how much preparation time is needed, and why the request will not unfairly disrupt the proceedings.
United States v. Sellers
In United States v. Sellers, 645 F.3d 830 (7th Cir. 2011), the defendant was charged with federal drug and firearm offenses. He initially retained one attorney, but another lawyer appeared as secondary counsel. Sellers repeatedly informed the court that he had not selected the secondary attorney to serve as his primary trial counsel.
Before trial, Sellers sought a continuance to proceed with retained counsel of his choice. On the scheduled trial date, he appeared with both the attorney he did not want and a newly retained attorney.
The district court refused to continue the trial. The judge relied partly on a general policy that newly retained counsel must take the case as it stands. Sellers proceeded to trial under protest with the attorney he had not selected. The jury convicted him, and the court sentenced him to 180 months in prison.
The Seventh Circuit vacated the conviction and ordered a new trial.
Why the Continuance Denial Was Unconstitutional
The Court of Appeals concluded that the district court relied on an improper rigid rule requiring new counsel to accept the existing schedule. The Sixth Amendment required the court to consider Sellers’s actual circumstances and reasonably balance his choice of counsel against the demands of the trial calendar.
The court found that the denial improperly deprived Sellers of his retained counsel of choice. It vacated both the judgment and sentence and remanded the case for a new trial, including new pretrial proceedings.
The Seventh Circuit’s complete opinion in United States v. Sellers explains why a court cannot replace individualized consideration with a fixed scheduling policy.
Why the Error Is Structural
In United States v. Gonzalez Lopez, 548 U.S. 140 (2006), the Supreme Court held that an erroneous deprivation of the right to retained counsel of choice is a structural error.
Structural error affects the framework of the proceeding rather than a single item of evidence or an isolated ruling. The defendant does not need to prove that chosen counsel would have obtained an acquittal or handled the case differently.
Courts cannot reliably reconstruct all the decisions another attorney might have made, including those related to investigation, plea negotiations, motions, witness selection, cross-examination, and trial strategy. Therefore, an unconstitutional denial of the right to counsel of choice is not reviewed under the ordinary harmless error standard.
This does not mean that every denial of a continuance requires reversal. The defendant must first establish that the court’s ruling wrongfully deprived the defendant of the right to retained counsel of choice.
Protecting the Right to Chosen Counsel
A request for a continuance should be made as early as possible and supported by specific facts. Chosen counsel should be prepared to enter an appearance, explain the preparation required, propose a reasonable new trial date, and address any inconvenience the request may cause.
If the court denies the request, the constitutional objection and supporting facts must be clearly preserved in the record for appeal.
Attorney Michael J. Petro represents individuals in federal criminal trials and appeals in Tampa, Florida, and Chicago, Illinois. Contact federal criminal defense attorney Michael J. Petro today if a court has denied or threatens to deny your right to retained counsel of your choice.