Crime & Federalism

A non-indigent criminal defendant's Sixth Amendment rights encompass the right to be represented by the attorney selected by the defendant. Wheat v. United States, 486 U.S. 153, 159 (1988); Powell v. Alabama, 287 U.S. 45, 53 (1932). As a general rule, "'defendants are free to employ counsel of their own choice and the courts are afforded little leeway in interfering with that choice.'" United States v. Lewis, 759 F.2d 1316, 1326 (8th Cir. 1985) (quoting United States v. Cox, 580 F.2d 317, 321 (8th Cir. 1978)). "The right to privately retain counsel of choice derives from a defendant's right to determine the type of defense he wishes to present." United States v. Mendoza-Salgado, 964 F.2d 993, 1014 (10th Cir. 1992) (citations omitted); United States v. Laura, 607 F.2d 52, 56 (3d Cir. 1979) (citations omitted). "Lawyers are not fungible, and often the most important decision a defendant makes in shaping his defense is his selection of an attorney." Mendoza-Salgado, 964 F.2d at 1015-16 (internal quotations and citations omitted). Furthermore, "'[a] defendant's right to the counsel of his choice includes the right to have an out-of-state lawyer admitted pro hac vice.'" United States v. Ries, 100 F.3d 1469, 1471 (9th Cir. 1996) (quoting United States v. Lillie, 989 F.2d 1054, 1056 (9th Cir. 1993)). Thus, "a decision denying a pro hac vice admission necessarily implicates constitutional concerns." Panzardi-Alvarez v. United States, 879 F.2d 975, 980 (1st Cir. 1989) (citation omitted).

"[W]hile an accused who is financially able to retain counsel of his own choosing must not be deprived of a reasonable opportunity to do so, the right to retain counsel of one's choice is not absolute." United States v. Vallery, 108 F.3d 155, 157 (8th Cir. 1997) (citing Urquhart v. Lockhart, 726 F.2d 1316, 1319 (8th Cir. 1984)). "The right to choice of counsel must not obstruct orderly judicial procedure or deprive courts of their inherent power to control the administration of justice." Id. (citing United States v. Gallop, 838 F.2d 105, 108 (4th Cir. 1988)). Thus, the district court must carefully balance the defendant's right to be represented by the counsel of his choice against the court's interest in "'the orderly administration of justice.'" Urquhart, 726 F.2d at 1319 (quoting Linton v. Perini, 656 F.2d 207, 209 (6th Cir. 1981)). This issue typically arises when a criminal defendant seeks to substitute counsel shortly before trial or during the trial. Panzardi-Alvarez, 879 F.2d at 980 (citations omitted). "It is also appropriate, however, for the court to consider the effect of the attorney's past actions (especially past ethical violations) on the administration of justice within the court." Id.