G. Replace Your attorney

1. Introduction

Replacing your appointed attorney is often a bad idea. Many appointed attorneys, such as public defenders, are highly skilled and have years of trial experience. If you fire your attorney, it will usually cause delays, and judges are often against it. The most common ways to replace your attorney are listed here in order of best to worst.

2. Hire a different attorney

The services of an attorney are sometimes expensive because of the tremendous cost of becoming an attorney and the high cost of running a law practice.

Law books are expensive. As examples, California Procedure by Witkin currently retails for $829 and California Three Strikes Sentencing by the Rutter Group currently retails for $349. In addition to law books, most criminal defense practitioners also have to pay for online legal research tools, office space, support staff, computers, copy machines, and other items required to properly defend their clients.

This does not mean that a private attorney can’t be affordable. Family and friends are often willing to assist with financing, and some attorneys take payment plans.

3. Ask your attorney to declare a conflict

If you want to get rid of your attorney, the odds are that the relationship just isn’t working and he wants to get rid of you also. The attorney may be perfectly competent, but the two of you may have conflicting personalities or you may just have different ideas about how to proceed with the defense. Explain this to your attorney, and ask your attorney to declare a conflict so that another attorney will be appointed. A sample request letter is found in the section entitled Sample Letters.

4. Ask the court to give you a new attorney

You can ask the court to appoint a new attorney for you by filing a Marsden Motion (see the sample motion). The motion alleges that your attorney is incompetent or that he has a conflict of interest that cannot be reconciled.

The most likely outcome of a Marsden Motion is that you will lose.

If the motion is denied, your attorney will be mad at you and won’t particularly want your case to turn out well. It is simple human nature – if someone attacks you, you don’t want things to go well for that person.

If your motion is granted, the case will be assigned to a new attorney. The person making the assignments may also be mad at you – he won’t want your case to turn out well. He gave you an attorney who he believed was appropriate, but you fired that attorney. He could replace the fired attorney with the best attorney available or he could assign your case to someone else – perhaps the assignment will be to the attorney he thinks is the least qualified.

5. Represent Yourself

A criminal defendant has the right to represent himself in court, but this is almost always a bad idea. Even attorneys who are trained in the law hire other attorneys to represent them because an attorney cannot effectively represent himself. You cannot effectively represent yourself either.

If your attorney is failing you and you can’t get him to effectively represent you, tell the court. Get a new attorney, but don’t try to be your own attorney.

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A person with a tumor may operate on his own skull. In America, people are free to do things, no matter how stupid, even represent themselves in a criminal case.

According to Patterns and Trends in Federal Pro Se Defense, 1996-2011: an Exploratory Study, Federal Courts Law Review, Vol 8, Issue 3 ©2015, “When going to trial (bench or jury), pro se defendants (15%) were more likely to be found guilty than defendants with retained (5%) or appointed counsel (3%).”

That is to say, pro per defendants were convicted three times as often as defendants with retained counsel and five times as often as defendants with appointed counsel.