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Retained Counsel, Choice of, Generally

State v. Todd E. Peterson, 2008 WI App 140
For Peterson: Ralph Sczygelski


¶7        … In United States v. Gonzalez-Lopez, 548 U.S. 140 (2006), the 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. … However, Gonzalez-Lopez makes clear that the right to counsel of choice is not unlimited …. Thus, under the Sixth Amendment, a defendant has only a presumptive right to employ his or her own chosen counsel. See Wheat v. United States, 486 U.S. 153, 159, 164 (1988).

¶8        Our supreme court addressed disqualification of a defendant’s retained counsel of choice in State v. Miller, 160 Wis. 2d 646, 467 N.W.2d 118 (1991). Miller makes clear that the circuit court has the discretion to disqualify a defendant’s counsel of choice for a conflict of interest even when the defendant will voluntarily waive the conflict. Id. at 650. Miller reconciles the competing policy interests of a defendant’s Sixth Amendment right to representation by counsel of choice with countervailing interests in maintaining the integrity of the judicial system. See id. at 652-53. Miller also confirmed the principle espoused in Wheat, that a presumption favoring the defendant’s choice exists. See Miller, 160 Wis. 2d at 652; Wheat, 486 U.S. at 164.


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