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CRIMINAL JUSTICE | FALL 2024
Whether criminal defendants are appointed
counsel or they hire their own lawyers de-
pends primarily upon their financial ability
to pay. It is generally assumed that the poor get less
competent lawyers with fewer resources than those
defendants with the means to pay. This stereotype is
often real. However, there are many reasons why it is
not always true. This article explains the differences
between retained and appointed lawyers.
Choice of Counsel
A key difference between appointed and retained
counsel in criminal cases is that only defendants
who pay their attorneys have a right to choose them.
The choice of a retained lawyer is protected by
the Sixth Amendment to the US Constitution. See
United States v. Gonzalez-Lopez, 548 U.S. 140 (2006).
Denial of a defendant’s chosen retained counsel is
fundamental error, requiring no showing of harm for
reversal. Id. at 149–51. The exceptions to that rule are
actual conflicts of interest, counsel’s refusal to be
retained, or when the lawyer may not legally practice
in the jurisdiction. Wheat v. United States, 486 U.S.
153, 159 (1988). Judges also have latitude to deny last-
minute substitutions of retained counsel that delay
trials. Gonzalez-Lopez, 548 U.S. at 152.
Alternatively, no particular appointed counsel is
guaranteed to defendants. The Supreme Court re-
jected a defendant’s right to a “meaningful attorney-
client relationship” in Morris v. Slappy, 461 U.S. 1, 13–14
(1983). In that case, the defendant’s hospitalized pub-
lic defender was replaced with another one from the
same office only six days before trial. Based on that
ruling, many courts of appeal have upheld the denial
of appointment of a requested lawyer, even when the
lawyer had been representing the defendant for a
significant time. See, e.g., United States v. Parker, 469
F.3d 57, 58 (2d Cir. 2006).
The idea of choice among appointed counsel
certainly has merit. The United Nations’ International
Covenant on Civil and Political Rights supports the
implementation of client choice of counsel in a crimi-
nal justice system. It also has been tried successfully
before. Scotland employs a system in which clients
ALEX BUNIN is the chief public defender
for Harris County (Houston), TX.
The Differences
Between Appointed
and Retained Counsel
in Criminal Cases
BY ALEX BUNIN
Photo by Vladislav Stepanov/Getty Images
Published in Criminal Justice, Volume 38, Number 1, Spring 2023. © 2023 by
the American Bar Association. Reproduced with permission. All rights reserved.
This information or any portion thereof may not be copied or disseminated in
any form or by any means or stored in an electronic database orretrieval system
without the express written consent of the American Bar Association.
