How can we as the family get a new attorney for a family member when the judge has already denied the attorneys request to be released from a case?
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How can we as the family get a new attorney for a family member when the judge has already denied the attorneys request to be released from a case?
My brother is currently incarcerated and he has been feeling as though his attorney is not working on his behalf. After depositions my family and I are in agreement that his attorney is not and has not been working on his behalf. His attorney has asked to be released from the case but the judge denied his request. My brother has requested a hearing to discuss him wanting other counsel. As far as I know he is scheduled to go to trial next month and I have repeatedly tried to get in contact with his attorney and have yet to get a call back. This lack of communication has been ongoing for over three months. What can we as the family do now to get his new representation?
Asked on August 26, 2012 under Criminal Law, Florida
Answers:
B.H.F., Member, Texas State Bar / FreeAdvice Contributing Attorney
Answered 12 years ago | Contributor
It sounds like your brother has a court-appointed attorney. A defendant has a right to counsel, but not necessarily the right to the appointed counsel of their choice. Criminal defendant's are often frustrated with the defense attorney and want a new one, but are denied a replacement because (1) the judge does not want to appear as catering to defendants or (2) they do not want a new attorney asking for a trial continuance which would slow down their trial docket. If he has a retained attorney, the judge may not be letting him off because he doesn't want your brother going forward without some representation. If your brother could afford one attorney, some jurisdictions will not subsequently appoint a new attorney because the defendant has demonstrated an ability to pay for their own counsel.
At this point, probably the only way for your brother to get a new attorney (even if the current attorney is retained), is for someone to hire him a new attorney and have the new attorney file a motion to substitute in. Judges are more likely to approve a removal of one attorney when one is waiting in the wings to jump into the case.
If your brother has an information, like a copy of offense reports or a discovery packet, see if you can get copies of these to take with you when you seek to hire an attorney. If they have some basic info on the case, they will be in a better position to let you know if they can jump into the case on short notice.
If your brother cannot get a new attorney, then make sure he files a pre-trial motion formally objecting to the new attorney alleging his failure to communicate (or whatever the issues are), but without discussing the details of the case. When he shows up for court, he needs to continue objecting to the attorney on the basis that he has as a conflict of interest and get a ruling (denial) from the judge on the record. The trial may go forward, but at least he have a better chance on appeal with a formal motion and ruling. A motion without the ruling won't get him very much traction on appeal.
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