Academic journal article Harvard Law Review

Rethinking the Boundaries of the Sixth Amendment Right to Choice of Counsel

Academic journal article Harvard Law Review

Rethinking the Boundaries of the Sixth Amendment Right to Choice of Counsel

Article excerpt


Criminal defense is personal business. For this reason, the Constitution's ample procedural protections for criminal defendants are written not just to provide a fair trial, but also to put the defendant in control of his own defense. Courts and commentators alike have recognized that the constitutional vision of liberty requires not only protection for the accused, but also the right of the accused to speak and act for himself. (1) The Sixth Amendment also reflects the common understanding that the assistance of counsel can be crucial--even necessary--to effective defense, (2) but its language and structure nevertheless make clear that the rights and their exercise belong to the defendant himself, not his lawyer. (3)

The right to the assistance of counsel has many facets, but its most ancient and fundamental element is the defendant's right to counsel of his own choosing. Indeed, the Supreme Court has identified choice of counsel as "the root meaning of the constitutional guarantee." (4) Yet actual choice-of-counsel doctrine gives the state broad authority to interfere with the exercise of this right. For example, a defendant may not choose an advocate whose representation creates a potential conflict of interest for the defendant, even if the defendant knowingly and intelligently waives any objection to the potential conflict, (5) and a defendant has no right to be represented by an advocate who is not a current member of a state bar association. (6) The remedy for a choice-of-counsel violation is quite dramatic, (7) but courts have substantial discretion to determine what conditions actually effect a violation. (8)

This Note argues that the Sixth Amendment's text, history, and relevant Supreme Court jurisprudence demand reconsideration of the current limits on a defendant's choice of counsel. In particular, the Court's recognition that choice of counsel implies a robust right to self-representation, (9) notwithstanding competing paternalist and institutional concerns, suggests that actual choice of counsel should receive equally robust substantive protection. Of course, to say that this right deserves expansion is not to say that it has no bounds--all constitutional rights have a limited scope. But the relevant question is whether judges and state bar associations should have such broad discretion to interfere with a right uncontroversially recognized as central to the Sixth Amendment.

This Note proceeds as follows. Part II describes the relevant choice-of-counsel doctrine with regard to conflicts of interest, representation by non-bar advocates, and self-representation, and criticizes this doctrine as reflecting inconsistent understandings of the right and its boundaries. Part III discusses revised boundaries in a few key areas and general implications for reconsidering the right to choice of counsel. Part IV concludes.


The Court has never questioned the centrality of the right to choice of counsel in the Sixth Amendment, and the seriousness of this right finds some expression in the constitutional remedy for its violation. In United States v. Gonzalez-Lopez, (10) the Court held that erroneous deprivation of choice of counsel requires automatic reversal without any need for harmless error analysis (11)--that is, violation of choice of counsel is "complete" whenever a defendant's chosen advocate is improperly disqualified. (12)

While the issue of remedy is not itself central to this Note, there are still two important points to draw from the Court's discussion in Gonzalez-Lopez. First, the core historical component of the Sixth Amendment right to assistance of counsel was the right to be assisted by counsel of one's own choosing. (13) And second, while choice of counsel is a structural right of fundamental importance, its substantive scope is subject to the substantial discretion of states and judges. …

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