Do You Always Get the Attorney You Want?

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.

As noted above, one of the most common scenarios where choice-of-counsel problems can occur is when a defendant comes to Court shortly before trial and states that s/he is dissatisfied with the present lawyer and want to obtain a new one.  In this situation, the trial judge’s response may very well be that the defendant is free to obtain a new attorney so long as that lawyer is ready to proceed with trial on the scheduled date.  Particularly in older, relatively straight-forward cases where there have already been frequent adjournments of prior proceedings, neither the defendant nor the new attorney should assume that the substitution will be allowed by the court.  Our appellate courts have found that the trial judge has considerable latitude in balancing the foregoing factors and, after conducting a reasoned and thoughtful analysis of these factors, can deny the defendant’s request to obtain counsel of their choice.  A good faith request to change attorneys may be honored even very late in the case, but only if the factors set out above balance in favor of granting it.

James S. Friedman, Esq., is a criminal defense attorney centrally based in New Brunswick, New Jersey.  Mr. Friedman represents criminal defendants in the Superior Court of New Jersey, all New Jersey municipal courts, the New York State criminal Courts in Manhattan and Brooklyn, and the United States District Courts in New Jersey and New York City.  If you have a criminal case in one of these courts – particularly if it is early in the case – call him to discuss your options and to start planning a successful outcome.

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