New Jersey Criminal Defense Attorney Blog Covering New Jersey and Federal Criminal Law and Procedure

Articles Posted in Right to Counel

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Defendants frequently decide to change attorneys while their case is pending before the court.  Substitutions of counsel happen very frequently in criminal cases.  In fact, it is not uncommon for a criminal defendant to change attorneys repeatedly during the course of their case for any number of reasons.  Sometimes, a substitution can occur because the client does not feel the current attorney is paying sufficient attention to their matter.  The client may also feel the attorney is not on track for obtaining the desired result.  Other times, there is simply a clash of personalities.

Both the federal and state Constitutions guarantee an accused the right to effective assistance of counsel.  A basic element of this guarantee is the defendant’s right to the attorney of their choice.  However, a defendant’s right to change attorneys during the case is not absolute; rather, it is balanced against the Court’s calendar and scheduling issues.  Thus, timing and scheduling can affect a client’s decision to change attorneys.  This is particularly true when the defendant decides to change attorneys after a case has been listed for trial, and especially on the eve of trial.

Because changing attorneys almost always result in a delay of proceedings, our State’s Supreme Court has held repeatedly that a trial court must consider the following factors when deciding to allow a substitution of counsel:

a. The length of the requested delay.

b. Whether other adjournments have been requested and granted;

c. The balanced convenience or inconvenience to the litigants, witnesses, counsel and the Court;

d. Whether the requested delay is for legitimate purposes, or whether it is dilatory, purposeful, or contrived;

e. Whether the defendant contributed to the circumstances which give rise to the request for a continuance;

f. Whether the defendant has other competent counsel prepared to try the case;

g. Whether denying the continuance will result in identifiable prejudice to the defendant’s case and, if so, whether this prejudice is of a material or substantial nature;

h. The complexity of the case; and

i. Other relevant factors that may be unique to the matter at bar. Continue reading

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This blog focuses almost exclusively on criminal law and criminal procedure, making this posting something of a oddity.  With that said, however, this posting may certainly be viewed as a comment on an issue that is significant in any criminal case, which is the selection of defense counsel.  When it comes to choosing a lawyer, the obvious things that come to mind are knowledge of law and procedure, years of experience, and whether the attorney has previously handled cases involving the charge at issue.  But a criminal case is a highly stressful experience, and one of the most important factors in selecting legal representation is something that many clients do not consider until it may be too late.  An astonishingly large number of clients fail to ask themselves if they can work with the lawyer they are thinking of using under highly pressured circumstances for what may be an extended period of time.  The likelihood of a positive result in the case frequently diminishes with the extent to which the defendant is at loggerheads with their attorney.

Most clients shop for attorneys the same way they shop for everything else.  They seek attorneys online, and start their search by viewing websites.  The New Jersey Supreme Court’s Committee on Attorney Advertising recently recently issued a Notice to the Bar dated May 4, 2016, reminding all New Jersey attorneys that certain items currently appearing on many attorney websites may be presented in a way that is misleading and/or easily taken out of context.  This Notice appears to have been issued after the receipt of numerous grievances from clients who may have thought their lawyer was “Super” or “the Best” when the case started, but apparently changed their view before it was over.

Specifically, an attorney’s website may state that the lawyer is a “SuperLawyer”, one of the “Best Lawyers in America”, one of the “Best Lawyers in New Jersey”, and on and on and on.  These are all designations issued by various organizations, business entities or publications, and come with attractive shields or badges that the attorney receiving the designation may – and almost always does – post on their website.  The Notice observes that such awards have little if anything to do with an attorney’s actual knowledge, skill, experience, or ability to handle people.  In fact, many of them are are little more than popularity contests between and among attorneys.  Because they are frequently given based upon the number of endorsements that the recipient received from other attorneys, the award process often degenerates into “I’ll endorse you if you endorse me”.  Thus, the recipient did not necessarily receive the award or designation because they are really good at what they do; rather, they received the award because they know a lot of attorneys who are willing to endorse them in return for the same favor, and the person who knows the largest number of attorneys willing to issue an endorsement wins the purported prize.  Further, these awards may also be given based upon simple membership in an organization, the payment of money to the issuing entity, or the recipient’s willingness to respond to legal questions on the issuing entity’s website.  In fact, there is at least one website that claims to be able to rank attorneys numerically.  However, this site also appears to be driven by attorney advertising.  The site tells consumers that its purpose is to assist them in navigating the legal jungle, while simultaneously telling attorneys that its purpose is to assist them in growing their practices.  This begs an important and obvious question – is the site’s numerical rating of an attorney influenced in any way by the amount of advertising the attorney purchases?  If so, this is one of the concerns of the New Jersey Supreme Court, and its Committee on Attorney Advertising, as articulated in the Notice.  (If any of this is inaccurate, I will certainly be more than willing to correct or edit it.) Continue reading