Colorado Criminal Law – Replacing – Substituting Your Lawyer – Can They Stop Me From Firing My Old Lawyer And Retaining A New Lawyer?

By H. Michael Steinberg Colorado Criminal Defense Lawyer – Attorney

Colorado Criminal Law – Replacing – Substituting Your Lawyer – Can They Stop Me From Firing My Old Lawyer And Retaining A New Lawyer? There may be times during a lawyer’s representation of a client where the client wishes to replace his lawyer with another law firm. This right to “substitute” a new lawyer for the existing lawyer is governed by specific and complex rules under Colorado criminal law. Often the conflict arises when the defendant – client disagrees with the theory of defense selected by their criminal defense lawyer.

This article explores those rules in an effort to educate individuals in this area as to their rights and responsibilities when they are in the position to seek to terminate his or her lawyer….  especially where that termination is grounded in a conflict over tactics and strategy in how to defend a case at trial.

In a recent Colorado Supreme Court case, a Defendant argued on appeal that the lower court deprived him of the right to a substitution of counsel and more specifically, the lower court “
“deprived him of his right to conflict-free counsel, to present a defense, and to testify.

The denial of the substitution took place in this case “mid trial” and in the context of a demand by the Defendant to testify even though it would impact the strategy his lawyer had chosen to defend the case.

A Colorado Defendant’s Request For A Substitution of Counsel – The Bergerud Factors

In People v. Bergerud, 223 P.3d 686, 695 (Colo. 2010), a 2010 case, the Colorado Supreme Court outlined FOUR factors that govern a Defendant’s right to substitute a new lawyer for the old one.

When a Defendant requests a new lawyer – a so called substitution of counsel request – the trial court uses a four factor analysis in making the decision to grant or deny that request.

The Four Bergerud Factors Are:

(1) the timeliness of the motion;

(2) the adequacy of the court’s inquiry into the defendant’s complaint;

(3) whether the attorney-client conflict is so great that it resulted in a total lack of communication or otherwise prevented an adequate defense; and

(4) the extent to which the defendant substantially and unreasonably contributed to the underlying conflict with his attorney.

Understanding The Bergerud Factors

Factors 1 and 4 focus on perhaps the most important area of analysis of the request to substitute a new lawyer for the old one. The factors are intended to make certain a Defendant does not use the request to substitute counsel as a method to “unnecessarily delay the judicial process.” Judges are especially sensitive to the tactic of manipulation of the right to a lawyer as a means of damaging the State’s case through repeated delays.

The damage addressed here is the impact repeated delays have on witnesses, evidence and a general disruption of the process by slowing it down.

Factor 2 is the factor that explores the underlying reason or reasons for the substitution. The Court here is tasked with delving into the facts underlying the dispute between the Defendant and his lawyer.

Factor 3 is focused on the impact of the disagreement itself on the ability of the lawyer to communicate with the client and – in the context of the Constitutional right to counsel (pursuant to the 6th Amendment’s fundamental right to a fair trial) – “whether the disagreement or communication breakdown inhibits the presentation of an adequate defense or the defendant’s complete representation by counsel.”

One Quick Point – The Trial Judge’s Decision On A Substitution Of Counsel Will Probably Be Upheld On Appeal

On appeal of a Trial Court’s decision to permit or to deny the substitution of counsel, the review of that decision is performed using what is called an “abuse of discretion” standard. What that means is the lower Court’s decision either granting or denying the Defendant’s request is almost certainly to be upheld on appeal. The lower court has a tremendous amount of authority here and the Defendant should be aware of that fact before making the request.

How Does This Work – Some Basic Principles – An Example Using A Disagreement Over Trial Strategy

The best way to understand how a Trial Judge analyzes a Defendant’s request for a new lawyer is to examine some basic principles that serve as the foundation of the attorney client relationship. Those principles answer the question – who is in charge of what during the course of a Colorado criminal case?

The Authority Of The Lawyer – Are There Any Limitations On A Lawyer’s Authority?

It often comes as a surprise to many Defendant’s that the lawyer they choose has tremendous unfettered power over the course and direction of a case.

Captain of the Ship

Law and tradition allocate to counsel the power to make binding decisions of trial strategy and tactics. In the areas of trial strategy, the lawyer is known as the “captain of the ship.”

While a lawyer must consult with the client as regards “questions of overarching trial strategy,” the lawyer makes the final and binding decisions regarded as strategic or tactical in nature.”

If there is a conflict or dispute between a lawyer and the client as to what defense to present, the lawyer’s choice controls and while the client is entitled to a lawyer who will consider the client’s views and try to accommodate them with respect to trial preparation and trial tactics, he has “ no right to an attorney who will docilely do as he is told.”

When a criminal defendant chooses his lawyer he gives up significant control over many crucial decisions in the case. That loss of control is difficult on the client but it is critical to understanding the contract of representation.

The right that is retained by the client when there is serious conflict is to terminate that lawyer’s representation – subject to the Bergerud Factors – and to substitute a new lawyer who may be more willing to “take orders” from the Defendant.  However a Judge – in matters of defense strategy – will almost never compel a criminal defense lawyer to follow the orders of the Defendant.

The Theory Of The Case

A key decision in the defense of any criminal case is known as the “theory of the case ” The decision on how to defend a criminal case is the most significant tactical decision there is and the law places this decision on the lawyer because of his or her specialized training and experience to make this decision.

While it would seem at first glance that the Defendant should make this important decision – the choice of one defense theory over another – this decision is solely the lawyer’s

However the Bergerud case may have altered what has always been the exclusive authority of the criminal defense lawyer – the decision as to the defense to be asserted at trial – (see below).

The Rights And Responsibilities That Are The Defendant – Client

There are four key limitations on a criminal defense attorney’s ability to direct the course of a trial. Those four decisions – solely the province of the accused – are:

1. Whether to plead guilty, (what plea to enter – and whether to accept a plea agreement)
2. Whether to testify on his or her own behalf,
3. Whether to waive a jury trial, and
4. Whether to take an appeal.

After Bergerud – A Sea Change In The Attorney Client Relationship

The holding in Bergerud has had a tremendous impact on the tension over control and direction of the Colorado criminal case – specifically the lawyer’s authority in choosing the defense that will be presented at trial.

In a nutshell, Bergerud stands for the proposition that a criminal defense lawyer cannot choose a  theory of defense that renders the client’s decision to testify at trial a “nullity.”  This is a somewhat complex concept. The question is this – does the client’s anticipated testimony clash with the lawyers defense strategy? If that happens the rights of each party – the lawyer and the client – as described above, are in obvious conflict.

The Facts Of Bergerud

The lawyers in Bergerud, a homicide case, decided that their theory of defense would be to attack the element of proof of Bergerud’s mental state at the time of the crime thereby conceding – because of the strength of the case – the homicide itself but seeking a conviction on a lesser crime.

After the opening statement, the Defendant demanded a new lawyer who would follow the Defendant’s theory of the case – self defense. The Defendant intended to testify at the trial that he this was purely an act of self defense. The lawyers refused to argue the Defendant’s theory because they believed their choice of defense was more likely to succeed with the jury.

The Judge denied the Defendant’s Motion for Substitution of Counsel and thereafter the Defendant proceeded to defend himself for the remainder of the case (which is known as proceeding “pro se.”)

Bergerud was convicted of one count of first-degree murder, one count of second-degree murder, and two counts of assault on a police officer.

On appeal Bergerud argued that the lawyer’s strategy was the equivalent of a guilty plea to a lesser homicide offense over Bergerud’s objection and therefore “impermissibly appropriated” Bergerud’s right to testify by refusing to advance his self-defense claim.

A Theory Of Innocence

The two defenses are clearly at odds. One defense, the criminal defense lawyer’s, concedes the commission of a crime and is directed at convincing the jury to vote guilty on a lesser crime. The Defendant’s theory is a theory of innocence – while it also concedes the act of taking a life – self defense is based on a “theory of innocence.” That means that if the jury accepts the defense – the Defendant is acquitted of the charges.

The Bergerud trial court determined that Bergerud was “fully advised” by his lawyers as to why self-defense was not a viable defense given the evidence in the case, but the Court found that the issue was more complex than that. The Colorado Supreme Court framed the question, not as to whether the defense team had asserted an intelligent and compelling defense, but rather whether that the choice of defense had so compromised Bergerud’s right to testify that, if they were allowed to proceed with the defense, Bergerud’s constitutional right to testify would be unconstitutionally impacted by the defense.

This ruling has changed everything and it may now take the Captain Of The Ship Doctrine through untold stormy seas.

The Colorado Supreme Court found that Bergerud had a “fundamental” constitutional right to insist that his counsel present an “innocence-based defense” no matter what defense counsel’s professional judgment might be.

The Lawyer’s Duty To Explain The Client Conflict To The Court

When a major unsolvable conflict arises between a client and his or her criminal defense lawyer over strategy and tactics, the lawyer is required to inform the Trial Court of the impasse as soon as it is practicable.

The ABA Standards which govern lawyer – client relationships state that if a “significant disagreement” develops between defense counsel and the client regarding tactics or strategy, the lawyer is required to make a record regarding the facts of the conflict, the advice given by the lawyer, the reasons for that advice, and the “conclusions reached.”

When a Defendant “attacks” his lawyer’s judgment and a serious conflict results he “impliedly” waives the attorney–client privilege for purposes of facilitating the inquiry by the trial court as to “a claim or defense that focuses on advice given by the attorney.”

The lawyer, in a hearing intended to try to settle and resolve the conflict, is instructed to outline the conflict to make it possible for the Trial Court to assess whether the Defendant’s constitutional rights have been violated.

This is a tough thing to do for lawyers as it runs contrary to every article of faith that forms the foundation of the attorney-client relationship… a relationship based on trust – and yes – secret keeping and confidentiality.

The Colorado Supreme Court held that the obligations of a lawyer to preserve client confidences must “yield to the court’s need to investigate the nature of the attorney-client dispute.”

Summary Of The Issue – The Substitution Of Counsel Where There Is A Conflict Of Strategy Between Lawyer And Client

Bergerud stands for the proposition that while a fundamental conflict in trial strategy may not be a “per se” basis for removal of defense counsel, that is, a criminal defense attorney still must independently and effectively present a defense, (he always has an obligation to consult with the client and involve the client in the process of selecting that defense), if the defense is at odds with the anticipated testimony of the defendant, the Defendant may now have the right, on that basis alone, to ask for and receive new counsel.

When there is a dispute over the defense selected, and when the client’s rights to testify might be compromised by the defense lawyer’s chosen strategy, and this cannot be resolved between the two of them—the Trial Judge must intervene and the criminal defense lawyer must be honest and completely candid with the trial court in explaining the trial strategy.

Colorado Criminal Law – Replacing – Substituting Your Lawyer – Can They Stop Me From Firing My Old Lawyer And Retaining A New Lawyer?

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Never stop fighting – never stop believing in yourself and your right to due process of law.

ABOUT THE AUTHOR: H. Michael Steinberg – Email The Author at [email protected] – A Denver Colorado Criminal Defense Lawyer  – or call his office at 303-627-7777 during business hours – or call his cell if you cannot wait and need his immediate assistance – 720-220-2277.  Attorney H. Michael Steinberg is passionate about criminal defense.  His extensive knowledge and experience of Colorado Criminal Law gives him the edge you need to properly handle your case.

You must make a responsible choice for a Colorado Criminal Defense Lawyer – we encourage you to look at our firm. Over the last 40 plus years – H. Michael has mastered nearly every area of criminal law, procedure, trial and courtroom practice and he is passionate about getting you the best result in your case. He has written, and continues to write, extensively on Colorado criminal law and he hopes this article helps you in some small way – Colorado Criminal Law – Replacing – Substituting Your Lawyer – Can They Stop Me From Firing My Old Lawyer And Retaining A New Lawyer?