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Choice of (Retained Counsel), Generally

State v. Anthony L. Prineas, 2009 WI App 28, PFR filed 3/6/09
Prineas: Raymond M. Dall’osto, Kathryn A. Keppel


¶14      In United States v. Gonzalez-Lopez, 548 U.S. 140 (2006), the U.S. Supreme Court explained that the right to counsel derived from the Sixth Amendment includes “the right of a defendant who does not require appointed counsel to choose who will represent him.” Id. at 144. “[T]he  Sixth Amendment right to counsel of choice … commands, not that a trial be fair, but that a particular guarantee of fairness be provided—to wit, that the accused be defended by the counsel he [or she] believes to be best.” Id. at 146. However, Gonzalez-Lopez makes clear that the right to counsel of choice is not unlimited:

We have recognized a trial court’s wide latitude in balancing the right to counsel of choice against the needs of fairness.… The court has, moreover, an independent interest in ensuring that criminal trials are conducted within the ethical standards of the profession and that legal proceedings appear fair to all who observe them.

Id. at 152 (citations omitted). Thus, under the Sixth Amendment, a defendant has only a presumptive right to employ his or her chosen counsel.  See Wheat, 486 U.S. at 159.¶15      Recently, the United States Court of Appeals, Seventh Circuit, affirmed this presumption, stating that under the Sixth Amendment, a non indigent defendant has a “right to select, and be represented by, one’s preferred attorney; thus, trial courts must recognize a presumption in favor of a defendant’s counsel of choice.” Carlson v. Jess, 526 F.3d 1018, 1024 (7th Cir. 2008). [2] Furthermore, the Fourteenth Amendment prevents a court from arbitrarily or unreasonably denying a defendant the right to obtain a continuance.  Id. at 1024-25. Accordingly, the precise issue presented by Prineas is whether the circuit court’s denial of his motion for substitution and a continuance was arbitrary or unreasonable and therefore violated his constitutional rights. Prineas asserts that, applying Carlson, the circuit court’s denial was error.


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