Who Are You Really Hiring as Your Colorado Criminal Defense Lawyer? – If you retain my law firm – you retain me and only me not a young associate lawyer – not another lawyer with no experience in the area of law that your case requires.
However – a practice that has grown in recent years across Colorado and the United States – is to have a primary partner in a law firm sell the client on the firm – then – when the time comes to actually handle the defense of the case – a second, and sometimes even a third lawyer, actually conducts the defense… leaving the client not only surprised but without a legal leg to stand on in court.
The reason is this – the “name” on the door is NOT necessarily the lawyer you are retaining – (although you might think so)…These firms will never tell you this fact at the time of your retaining of “the firm.”
A recent (2014) Colorado Court of Appeals case provides the backdrop for this short lesson in “let the buyer beware.”
The Facts – The Wrong Lawyer Shows Up
In the case at issue – the defendant waited at the sentencing hearing for the lawyer he had personally hired from the start. This was a high profile lawyer well known in the media. However, the lawyer that actually arrived for the hearing was another associate of the “firm.” The Defendant then asked for a continuance based on his objection to the fact that the wrong lawyer showed up and that the associate from the firm who tried to move forward with the defense case – was not the lawyer the Defendant had hired.
The Defendant could not prove that he hired the “name: lawyer and therefore the judge denied the Defendant’s request for a continuance.
A Violation of The Sixth Amendment Right To Counsel Of Your Choice?
The Defendant argued that the judge’s refusal to grant his request for a continuance violated his Sixth Amendment right to counsel. The judge’s questioning of the Defendant made it obvious to all that it weas not clear just WHO the Defendant had hired… the “name” lawyer – or the “firm.”
One thing was clear however to the judge, and that was – if the Defendant could prove that he had retained only the specific lawyer who failed to appear – only THAT lawyer could represent him in court on that day.
Some Foundational Issues
Did the Defendant hire this lawyer or the firm? The Colorado Court of Appeals held that if the Defendant had not agreed to be represented by anyone else from the firm and that he had not agreed to be represented by anyone other than the one lawyer at the sentencing hearing – then – he was entitled to a continuance of the sentencing hearing to get that lawyer into the courtroom.
Questions Raised By The Court – The Factors:
Was there a formal entry of appearance on behalf of the Defendant that established that the firm had entered as the Defendant’s lawyer and not an individual attorney within the firm?
If it was the firm – was this a bona fide associate of the firm?
Is or was there any evidence that supports the proposition that the Defendant’s belief that he was hiring THIS lawyer, and not all of the firm’s attorneys, was based in fact?
The Sixth Amendment’s Right To Counsel “Of Choice” – The Court’s Analysis Of Law
The Colorado Court Of Appeals reviewed some well established principles of law in this area:
The Sixth Amendment provides that a defendant in a criminal prosecution has the right to the assistance of counsel. U.S. Const. amend. VI. This right exists at a sentencing hearing.
A Defendant who does not request a court appointed lawyer has the right to choose who will represent him in court.
The Sixth amendment (constitutional) right exists to preserve the defendant’s ability to choose a lawyer who he wants and trusts regardless of how effective that lawyer may be.
A violation of a defendant’s right to counsel of choice does not require a showing of prejudice to the Defendant’s case
But a defendant’s right to non-appointed counsel of choice is not absolute.
Instead, a court must balance this right against “the public’s interest in maintaining the integrity of the judicial process,” among other things click here to read.
The DA Argued that a Defendant’s dissatisfaction with a delegation from a senior lawyer to a junior lawyer is “an attorney-client matter” and not a Sixth Amendment issue and that the retention of an individual attorney necessarily constitutes retention of the attorney’s law firm.
The State argued further that “a defendant has no basis to complain if any attorney from the firm appears on his behalf.”
The Court rejected that argument:
“We recognize that the Sixth Amendment right to counsel of choice is most often implicated when a defendant hires an individual attorney or firm and later seeks to retain a different attorney or firm. However, the scope of the right is not limited to this most common circumstance. The Sixth Amendment right is more broadly described as providing a defendant “a fair opportunity to secure counsel of his own choice.”
“Accordingly, the right is also implicated when a defendant has hired a law firm and then wants to be represented by only a particular attorney within that firm. In both circumstances, the defendant asserts his choice of the specific retained lawyer he wants and trusts to represent him.”
The Brown Factors – Should The Judge Grant A Continuance To Get The Lawyer “Of Choice?”
In another recent case – the Colorado Supreme Court listed 11 factors that courts must consider when determining whether to grant a motion to continue so that a defendant may change attorneys:
Here they are:
1. the defendant’s actions surrounding the request and apparent motive for making the request;
2. the availability of chosen counsel;
3. the length of continuance necessary to accommodate chosen counsel;
4. the potential prejudice of a delay to the prosecution beyond mere inconvenience;
5. the inconvenience to witnesses;
6. the age of the case, both in the judicial system and from the date of the offense;
7. the number of continuances already granted in the case;
8. the timing of the request to continue;
9. the impact of the continuance on the court’s docket;
10. the victim’s position, if the victims’ rights act applies; and
11. any other case-specific factors necessitating or weighing against further delay.
The Brown factors are applied to determine the correct “balance” of the court’s interest in the efficiency and integrity of the judicial process against the defendant’s right to exercise his Sixth Amendment right to change counsel.
Reasoning to the “counsel of choice:” issue – the Court analogized to a lawyer who fails to appear, through no fault of the defendant. Under these circumstances it is clear that the Court must reset the case so that the Defendant may be represented by his chosen retained counsel. It was not clear where, as in this case, another lawyer does appear to handle the case.
Finally the Court of Appeals – in a footnote stated that the case before the court never addressed the issue where there have been “repeated failures to appear by counsel, or a failure to appear in addition to other behavior by the defendant or counsel, which may require the court to exercise its discretion to limit defendant’s counsel of choice.”
The Court’s Decision Under These Facts
If a Defendant can prove that he hired a certain lawyer personally a court must grant a Defendant’s motion to continue – BUT IF the Defendant cannot prove this to the satisfaction of the court – THEN ed the firm, then the court should apply the Brown factors to determine whether it should grant the Defendant’s request for a continuance.
Conclusion – Be Clear and Be Aware
At the Steinberg Colorado Criminal Defense Law Firm – H. Michael and only H. Michael represents you in and out of court. On that you can rely.
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