Counsel: Right to Counsel

From the very outset of its modern Sixth Amendment jurisprudence, the Supreme Court has recognized that "it is hardly necessary to say that, the right to counsel being conceded, a defendant should be afforded a fair opportunity to secure counsel of his own choice" (Powell v. Alabama, at 53). Thus, lower courts have reversed defendants' convictions when they are unreasonably deprived of the ability to be represented by counsel of their choice through such practices as a court's failure to grant a continuance—see, for example, United States v. Rankin, 779 F.2d 956 (3d Cir. 1986); Gandy v. Alabama, 569 F.2d 1318 (CA5 1978); or failure to admit otherwise qualified lawyers pro hac vice, Fuller v. Diesslin, 868 F.2d 604 (3d Cir.), cert. denied, 493 U.S. 873 (1989)—without asking whether the lawyers who actually represented them were ineffective.

On the other hand, the right to choose one's lawyer, like most other aspects of the Sixth Amendment, is not unqualified. In particular, a defendant cannot insist on representation by an attorney he cannot afford or who for other reasons refuses to represent him. Nor can a defendant insist on being represented by a lawyer who has a previous or ongoing relationship with an opposing party. In Wheat v. United States, 486 U.S. 153 (1988), the Supreme Court held that although "the right to select and be represented by one's preferred attorney is comprehended by the Sixth Amendment," that right can be outweighed by the judicial system's "independent interest in ensuring that criminal trials are conducted within the ethical standards of the profession and that legal proceedings appear fair to all who observe them." In particular, the Court held that multiple representation not only poses a risk to a defendant's interest in having a lawyer who acted on his behalf but also can jeopardize "the institutional interest in the rendition of just verdicts in criminal cases." It thus refused to allow Wheat to waive his right to conflict-free representation in order to retain a lawyer who would otherwise be disqualified.

The right of indigent defendants to counsel of their choice is far more constrained. First, of course, it is constrained by their economic circumstances: they cannot afford to retain a lawyer in the first place, and thus are subject to state-run systems for providing counsel. The two most prevalent are public-defender systems, in which an organization contracts with a jurisdiction to provide representation for indigent defendants, and appointed-counsel systems, in which judges appoint particular lawyers who are otherwise in private practice to represent a given defendant for a specified fee or hourly rate. Within either system, the indigent defendant may have little control over the lawyer assigned to his case. In Morris v. Slappy, 461 U.S. 1 (1983), the Supreme Court rejected the claim that "the Sixth Amendment guarantees a meaningful relationship between an accused and his counsel." Slappy's Sixth Amendment claim revolved around the substitution of one staff attorney at the public defender's office for another. Slappy's request for a continuance was denied. The Court found that, as long as Slappy was adequately represented by the lawyer who actually defended him at trial, his Sixth Amendment rights had been fully respected. In short, as the Court later explained in United States v. Cronic, "the appropriate inquiry focuses on the adversarial process, not on the accused's relationship with his lawyer as such" (466 U.S. at 657, n. 21). Thus, the question for indigent defendants devolves back to an ineffective assistance claim, rather than operating as a discrete constitutional protection.

The Supreme Court's perception of the role and value of criminal defense attorneys has been powerfully shaped by the kinds of cases in which it observes them operating. It was easy, in cases like Powell v. Alabama and Gideon v. Wainwright, to see defense lawyers as the first line of protection for weak and possibly innocent individuals. Today, the Court sees far fewer cases involving arguably innocent defendants, precisely because the provision of lawyers has worked: defendants are acquitted, obtain reversals of their convictions, or agree with the prosecutor on a plea bargain in the vast bulk of criminal cases. Still, the Court's unwillingness to recognize that many defense attorneys fail to provide their clients with truly competent representation has hindered the full realization of the constitutional promise proclaimed in cases like Powell and Gideon.