Legal Question: What happens if you are the defendant and midway through the trial you

[Mike 03]

decide your attorney is doing more harm than good, for whatever reason (incompetence, turning off the jurors, unprepared, never objects to objectible situations, etc.).

What are your options?

Can you fire him? If so, then what happens to the trial? Mistrial?

Does the judge have to agree?

Does there need to be a sub-hearing to determine the competency of the attorney?

This question came up when I was watching the State Trooper trial today with a friend who asked that question, and I couldn't answer her.

My understanding is that this defense attorney was supplied by the police officer's union and not a public defender, but I'm actually curious about all situations:

1. A public defender assigned to your case
2. A defense attorney paid for by your union
3. What if it is F. Lee Bailey? (i.e., any nationally famous, high-profile, highly-paid defense attorney, but you just think he's not doing well)

Thanks for any responses!

(Edited for clarity)

[Mythsaje]

1. I THINK you can request a different attorney from the judge...

Explaining your position and why you think it's necessary. I think it may depend on various factors such as region and whatever, but an incompetent attorney is a good grounds for an appeal and most judges prefer to avoid them if they can.

[Mike 03]

3. Thanks for the response. It would be interesting to know how they have to prove

incompetence, since that is a bit of a subjective concept. But it would seem the defendant's opinion would have to be respected to guarantee his/her right to a fair trial.

[Mythsaje]

4. I don't think "proof" is necessary...

Just a personal belief that they're not doing the job you think they should be.

[The Velveteen Ocelot]

2. Yes, you can fire your lawyer, even if he/she has the best reputation in the world.

You would have to ask the judge for a continuance to find another one and get the new one up to speed on your case, and that request would normally be granted. With public defenders it's a little more complicated because those are normally assigned, so depending on the jurisdiction you would probably have to ask the court to assign a different one. The situation with the union would depend on what the union contract says.

Your lawyer can also "fire" you if you fail to pay him/her or if you want him/her to do something unethical. If a trial is pending the lawyer would have to petition the judge for permission to withdraw from representing you.

[Mike 03]

5. Thanks. So the trial would contiune, with the same jury, at such time as a new attorney could

get "up to speed" and continue where the prior attorney let off.

This is interesting. Maybe defense attorneys should have "understudies," so to speak, just like there are alternate jurors in case jurors get sick, are dismissed, etc...

[The Velveteen Ocelot]

7. In most cases, yes, with appropriate instructions to the jury.

It would be much too expensive to keep a defense lawyer understudy around -- anyhow, it's pretty uncommon for defendants to try to get a new lawyer in the middle of a trial.

[Political Tiger]

6. I believe you have to get permission from the judge

and show good cause because it could result in reversible error if there is a conviction ... I think you'd have to be able to show that the current lawyer is grossly inadequate and negligent and the judge would have to agree because having a new lawyer take over in the middle of a trial puts both the lawyer and the defendant at a disadvantage. Plus, if they let defendants switch lawyers mid-trial when things aren't looking good it would cause chaos in courtrooms all over the country because defendants would be doing it all the time.

Now, I could be wrong because I'm not a lawyer but that is my understanding.

[The Velveteen Ocelot]

8. Not so -- you can fire your lawyer without proving he/she is incompetent.

You can just do it. You are not required to continue to be represented by a lawyer whose work does not satisfy you. The only hitch is that you would have to have a continuance granted by the court. But you could even represent yourself if you wanted, although that is generally a very bad idea.

The only time you have to prove your lawyer is incompetent is after a trial in which you were convicted, and then you can try to appeal the conviction on the basis of ineffective assistance of counsel. This is very hard to prove -- if your lawyer was conscious and sober at the trial, the court will probably find him/her competent.