The Right to Counsel of Your Choosing

The United States Constitution’s Sixth Amendment guarantees a Defendant’s right to counsel. That right to counsel attaches at the first hearing – Rothgary v. Gillespie – where the Defendant’s liberty interest is at stake:

…a criminal defendant’s initial appearance before a judicial officer, where he learns the charge against him and his liberty is subject to restriction, marks the start of adversary judicial proceedings that trigger attachment of the Sixth Amendment right to counsel.

The Sixth Amendment’s right to counsel includes two particular individual rights – the right to appointed counsel in cases where the person may be subject to imprisonment – which in North Carolina includes misdemeanors, but not infractions.

The Sixth Amendment’s right to counsel also includes the right to a counsel of one’s choosing, provided the person can afford to hire that lawyer. In other words, a person who has been appointed counsel may not choose the lawyer he likes best. But a person who has been appointed a lawyer, and then wishes to hire a lawyer, is constitutionally guaranteed to have that lawyer at proceedings.

The court may prohibit certain attorneys from serving as counsel. For instance, in the recent Johnny Edwards case in Greensboro, the United States District Court Judge Catherine Eagles prohibited certain lawyers who had a conflict from appearing as counsel on behalf of the defendant. See Wheat v. United States

But in general – absent those conflicts – the defendant is allowed to choose who he wants to appear on his behalf.

So if you’re ever in court and want to choose your own lawyer, while you’ll need to pay for that lawyer, be sure to make sure that the Court honors your right to have the lawyer of your choosing at the hearing.

See the Wikipedia entry on this issue.

Damon Chetson

Damon Chetson is a Board Certified Specialist in State and Federal Criminal Law. He represents people charged with serious and minor offenses in Raleigh, Wake County, and the Eastern District of North Carolina. Call (919) 352-9411.