You can always fire your private lawyer and hire a new one without the court's approval. You can always replace a court-appointed lawyer (public defender, alternate public defender, or panel attorney) with a private lawyer without the court's approval. And vice versa; if you qualify for appointed counsel, you can always fire your private lawyer and opt for appointed counsel. One important point to keep in mind, however, whenever you are changing lawyers to suit your personal preferences, the judge may or may not give your new lawyer time to get up to speed. So if you decide to change your lawyer, do it as soon as possible. IMPORTANT: If you already have a court-appointed lawyer, you cannot trade for your current court-appointed lawyer for another unless the court finds that there is good cause to substitute your lawyers. If the court finds good cause to replace your court-appointed lawyer, your new lawyer will be given time to get up to speed.
Try to Work Things Out with Your Current Lawyer First
Talk to your current lawyer and express your concerns candidly. Give your lawyer a chance to explain their views and the reason for their strategic choices. It is not uncommon for lawyers and clients to think differently about the case. You may be relieved to find out that your lawyer actually is working hard on your behalf. Your lawyer may be able to show you why your proposed approach would actually hurt your chances. If, after discussing the problem with your lawyer, you still have concerns or your lawyer refuses to discuss the issue with you, then take it to the next step.
Talk to the Lawyer's Supervisor
Call the lawyer's supervisor. Tell him or her everything that you feel the assigned lawyer is doing wrong. Ask the supervisor what s/he intends to do to resolve this problem. Get the name of the supervisor and document the date and time of this conversation. Follow up with the supervisor to make sure s/he did what s/he promised. Also, although most defender offices will not reassign a lawyer simply because the client requests a new lawyer, you may be able to convince the supervisor that your current lawyer has done such a bad job that it would be better for all if you were assigned a different lawyer. Let the supervisor know that you will not be satisfied until you are convinced you are being well represented.
Learn How a Marsden Hearing Works
If you want to get rid a bad court-appointed lawyer, all you need to do is ask the court for a Marsden hearing. The court will order the prosecutor, other lawyers, and the public to leave the court room before conducting the hearing. The only people who will remain in court are: your lawyer, the judge, and the court's staff (bailiff, court reporter, and clerk). The judge will ask you to describe the problem between you and your lawyer. The judge will not help you make a compelling argument. (See Steps 7 and 8 to learn how to make the most compelling case.) Once you are through, the judge will turn to your lawyer and ask the lawyer to respond. The judge will then rule on your motion. If the judge grants it, your lawyer will be taken off the case and you will be assigned a new lawyer. If the judge denies your request, you will be stuck with your lawyer. The court will order the record sealed and will allow others to come back into the court.
Understand the Risks of Having a Marsden Hearing
There are many risks that you should consider before going forward. First, you are likely to lose - mostly because defendants are not usually well-prepared when describing the problems, lawyers are more experienced and know what to say to defend themselves, and the court may prefer to encourage you two to work your problems out. Second, if you lose, you are stuck with the same lawyer you've just publicly embarrassed. If you have a bad lawyer, they may be even more unlikely to work hard on your behalf. (Note: If you have a decent lawyer whom you've misjudge, s/he will not hold a grudge. Good court-appointed lawyers understand that dealing with client frustrations are a part of the job.) Third - and, I think, the biggest risk - you may say something that would hurt your case in the future or eliminate defenses if your case goes to trial. See Step 9 for how to avoid hurting your case.
Avoid Filing Complaints that Will NOT Get You a New Lawyer
There are many things that you might not like about your lawyer; most of which won't get you a new lawyer. A personality clash will not get you a new lawyer. A preference for a male or female, or an attorney of a certain race will not get you a new lawyer. Even if you and your attorney disagree on case strategy, that will probably not be enough to get you a new attorney. The reason for that is simple: the court deems your lawyer to be the expert about how best to protect your interest. The court will not treat you as if you are co-counsel with an equal voice on strategic calls. Your lawyer is responsible for making the strategic decision in the case. The decision to plead guilty, to testify or not, or to have (or waive) a jury trial are your decisions to make. Most everything else is left to your attorney to decide.
Understand Which Kind of Problems are Most Likely to Get You a New Lawyer
Three areas of concern: 1) significant breakdown in communication, 2) failure to investigate, 3) failure to file meritorious motions to exclude damaging evidence. COMMUNICATION: If there is an "irrevocable breakdown" (cannot be fixed) in atty/client relationship, you would be entitled to a new lawyer, so long as you did not cause it. Examples: persistent refusal to take your calls or to let you explain facts critical to your defense, won't explain strategic decisions or seek input, relationship has deteriorated so that the two of you cannot effectively communicate. INVESTIGATION: Lawyer has a responsibility to investigate your case, including interviewing witnesses, examining/testing physical evidence, consulting with appropriate experts, investigating credibility of state's witnesses, finding evidence to support your defense. SUPPRESSION MOTIONS: Lawyer must protect your rights and seek exclusion of damaging evidence unless there is a good strategic reason to fore go the motion.
Make Your Best Case for a New Lawyer
You are on your own in this hearing. The judge will not help you make your case and your lawyer certainly will not. Prepare in advance, do not wing it. Consider the categories listed above and take note of each time your lawyer has failed. Be specific and thorough when discussing each failure. For example, if your lawyer has never interviewed you regarding your version of events, don't just say "He doesn't even know my side." Instead, you will want to document each time you tried to talk to the lawyer and what happened (e.g., "I only saw lawyer for 5 minutes in holding cell just before each court appearance. Every time I told him I wanted to discuss the case, he promised to come to jail but he never showed up."). Think about all the times your lawyer could have spoken to you. Did s/he visit you in jail? Did s/he schedule any video-conferences? Did your lawyer ever take any of your calls? Make sure you tell the judge how many times you tried to call your lawyer.
Avoid Revealing Too Many Details About Your Defense
Do not say too much. If your complaint has to do with your lawyer's failure to file a motion to suppress evidence seized during an unlawful search, you want to avoid talking about any facts relating to your knowledge or possession of the items. Trust me; even if you think what you have to say regarding your innocence is helpful, it can backfire and cause the judge to think you are a liar. Stick with the issue - the illegality of search. Tell the court that you asked the attorney to file a motion, you believe that the search was illegal (you did not give consent, items not in plain view, etc.), your lawyer has not filed one, and has not explained to you why he won't file it, you can see no legitimate reason not to file one. Also, if you provided your attorney with names of witnesses who have relevant testimony on the motion, then let the court know that fact. Avoid sharing confidential details of your defense. The focus here is the lawyer's failures not the evidence in your case.
If All Else Fails, Contact the State Bar Association
If the court denies your request for a new lawyer and there is no improvement in your lawyer's performance, you should consider filing a bar complaint before you are forced to go to trial with an ineffective and unprepared lawyer. IMPORTANT: You should only do this if you have a serious concern about your lawyer's representation. Filing a bar complaint will create a conflict of interest between you and your lawyer, requiring the court to provide new counsel. If you file a bogus complaint just to delay the trial, the judge is likely to get very annoyed.
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