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Establishing a Right to Replacement Counsel


Equal Justice Works Fellow Sponsored by Thomson Reuters and Shearman & Sterling LLP with the Texas Fair Defense Project

This post is part of our ongoing Transforming a Broken System Symposium. Click here to read all posts in our series, including the introductory post.

What do you do if your court-appointed lawyer is not representing you effectively? I think about this question often. My job at the Texas Fair Defense Project is to improve access to and quality of public defense in Texas. Because we believe that you can only do this work in constant conversation with the people most affected by the issue, I spend a fair amount of time listening to people represented by appointed counsel about their experiences. Most commonly, the complaints I hear are related to having been in jail for months without their lawyer ever visiting or talking to them about their case, except maybe to pass on the terms of a plea offer at a court appearance. These defendants ask my office to help them get their lawyer to take their case seriously or, if that is not feasible, to get them a new lawyer who will. Trying to help individuals with these complaints is one of the most difficult parts of my work, because there are so few available avenues for relief.

Effective court-appointed representation, and defendants’ agency in ensuring that someone’s own lawyer will serve them adequately, should be of concern to anyone concerned about fairness and equity in the criminal legal system. Here in Texas, three quarters of felony defendants and almost half of misdemeanor defendants rely on court-appointed counsel (in other states the rate is higher). BIPOC are disproportionately arrested and more likely to rely on court-appointed counsel than Anglo defendants. A lawyer is entrusted with vast power and leeway, with authority to make almost all decisions in how a criminal case will be defended (although some are more diligent than others about soliciting client input).

Traditionally, the Sixth Amendment only entitles a defendant to counsel of choice if they can pay for it, and courts throughout the country have consistently found no comparable right to choose appointed counsel. At the same time, the Sixth Amendment right to counsel means the right to effective assistance of counsel. Having a lawyer in name only won’t do the trick.

Unfortunately, the vast majority of fully litigated challenges to attorney effectiveness are on appeal from a conviction, where the prospects of a favorable ruling are low. This is mainly due to the deferential and cumbersome two-prong test under Strickland v. Washington, which requires both a “performance prong” showing the attorney was objectively unreasonable, and a “prejudice prong” showing that the outcome of the case would have been different but for the unreasonable conduct.

Much has been written about the Strickland standard. Some has been written about ways that attorneys could creatively and proactively vindicate defendants’ rights to effective assistance of counsel without resorting to a post-conviction Strickland claim. Little has been written about what a defendant could or should do in the face of an ineffective lawyer during an active case. I would like to offer some thoughts as a starting point for that discussion – one that should include many more voices of defendants themselves.

Defendants have strikingly few processes available to challenge the effectiveness of their court-appointed lawyer, and seek an appointed replacement, at any point before trial. I believe this lack of agency in their own legal defense is an important contributor to the fact that roughly 94% of defendants in state courts plead guilty: For people who would prefer a trial but don’t trust their appointed lawyer to adequately represent them at one, a plea deal can seem like the only choice. I’ve heard this exact assessment described by numerous defendants.  

Most defendants can tell if their court-appointed lawyer is ineffective. System actors sometimes tell me that defendants raise frivolous complaints when really they don’t like their plea offer or the legal advice they’re given. In my experience, this is rarely true (but a few very vocal people in this camp might skew perceptions). The overwhelming majority of complaints I hear about appointed lawyers seem legitimate. Even when a defendant’s primary complaint is about something seemingly strategic under a Strickland analysis – like whether to file a motion to suppress or for a bond reduction – often the defendant is pointing to a very real lack of communication and advocacy that might qualify as constitutionally inadequate representation. Defendants’ complaints about their court-appointed lawyers deserve, at minimum, to be taken seriously.

By the time I’ve heard from someone, usually they’ve tried everything they can think of to get their lawyer to work on the case. If they’re in jail, and most of them are, they’ve written multiple unanswered letters because the attorney does not accept collect calls from the jail and refuses to speak to the client’s friends or family. When they show up in court, the attorney doesn’t have time to talk about the case other than to update the client on the plea offer and what date they’ve been reset to. People who are out of jail have a few more options to exhaust – calling, texting, emailing, showing up to the attorney’s office in person, and sometimes looking for a second or third job to pay for a private lawyer.

At this point, some people file a bar complaint, but those grievances don’t solve the problem. They are separate from the criminal case and can operate on dramatically different timelines. An affirmative finding by a state ethics commission may not even result in removing the attorney from the specific case, or may come too late to make any difference. Even at its best, a bar complaint only vindicates the right to minimally ethical counsel (paragraph 19) and not to minimally effective representation, reducing the Sixth Amendment guarantee to a pittance both in form and in substance. In reality, the bar complaint is almost always denied.

Finally, the defendant writes a letter to the judge asking for a new lawyer. But many courts currently deny defendants the opportunity to raise complaints about appointed counsel before trial. Like most states, Texas lacks a statute allowing defendants to petition the court to replace their appointed lawyer (Louisiana, at least, provides some statutory guidelines (subs. (F)(11)) for capital cases (subs. (A)(2)). At the same time, in states like Texas the court need not consider – and most often does not consider – pro se motions filed by a represented party. This means that a defendant with an ineffective court-appointed lawyer would be incapable of presenting this complaint to the court before trial and would have to wait to raise the issue on appeal, which comes with obvious drawbacks (i.e serving a sentence and attempting a Strickland claim). I’ve seen courts refuse to consider a defendant’s numerous pro se motions to replace appointed counsel until the defendant eventually files a motion to represent himself – which gets promptly adopted by the attorney and granted by the court.

To be clear, I have enormous respect for many public defenders who have dedicated their lives to representing poor people charged with crimes. But there are also many people whose court-appointed representation amounts to nothing but a vector for passing on the State’s plea offers until they eventually fold. Those defendants should have an opportunity to replace an incompetent or incommunicado attorney with a different court-appointed lawyer who will provide at least minimally competent services, either by statute or through court rules that operationalize the Sixth Amendment guarantee.

Beyond establishing a defendant’s right to be heard on a request for replacement counsel, courts and legislatures should establish presumptive guidelines for replacement. In Texas, conversations around caseload limits often meet resistance from attorneys who, with an obvious financial incentive favoring excessive caseloads, argue that an especially efficient or hard-working lawyer shouldn’t be punished for outperforming her peers. By establishing a maximum caseload threshold for presumptive ineffectiveness, a court could allow appointed lawyers to maintain a higher-than-suggested caseload while still providing relief to any client of theirs who requested replacement counsel. Other standards, such as for visitation frequency, could be included as presumptive markers for replacement as well. A defendant who is happy with their lawyer’s performance could keep a lawyer who did not meet those guidelines, but dissatisfied clients could request someone new.

An effective right to replacement counsel could in some jurisdictions improve system quality. This is not the solution to vast inequality and underfunding of indigent defense systems, but in places where a small number of attorneys are assigned to represent obscene numbers of defendants, defendants’ ability to avoid the worst attorney offenders could improve representation for a significant number of people.

Finally, institutional public defenders remain critical to vindicating the right to effective assistance of counsel. No court will be fully effective at evaluating the defense function. Institutional defense providers can look into the contents of the defendant’s case and their communications with the attorney in ways that would be inappropriate for the judge in the case to do. Robust and independent indigent defense structures remain the best way to ensure quality representation for indigent defendants.

My intent here is not to detail a full system for resolving this complex issue. Rather, it is to highlight another structural disempowerment currently experienced by criminal defendants with ineffective court-appointed counsel. In some states, the appellate courts have stepped up to clarify the constitutional right to an inquiry into a defendant’s request for appointed counsel. In other states, however, the decision is left to individual courts to come up with their own policy, if they have one at all. All defendants need the opportunity to raise complaints with their representation before appeal. Reserving this for only those who were already able to hire counsel of their choice operates to further disenfranchise the most vulnerable people charged with crimes, telling the poor that their relief can only come after being punished because their own right to effective counsel was denied.