Can I Change Defense Lawyers After I've Hired One?

Defendants who are unhappy with their privately retained lawyer can find a new one. However, the right to change lawyers isn't absolute, and a defendant should carefully consider the downsides of switching up lawyers mid-case.

Changing Defense Lawyers in a Criminal Case

Defendants who hire their own attorneys generally have the right to discharge them without court approval. Whether the breakdown in the relationship is due to failure to communicate, disagreement about strategy, or something else, a defendant does not need to show good cause or even justify the decision to discharge to the lawyer. Most attorney-client agreements explicitly advise clients that they have the right to discharge their attorneys.

Costly. After discharging a lawyer, defendants can hire another. Of course, the decision to change lawyers can be costly. In addition to paying the new lawyer, the defendant will have to pay the original lawyer whatever portion of the fee the original lawyer has earned.

Delays. In some cases, delays can be good for the defense. But it can also mean more time behind bars and more time anxiously waiting for the case to end. As discussed next, a judge can also deny the defendant's request to switch lawyers if it appears the defendant is trying to game the system.

When Judges Can Deny a Request to Change Defense Attorneys

The freedom to have counsel of one's choosing cannot be used to improperly cause delays. Last-minute requests to substitute counsel are generally disfavored by courts.

Unfair to the prosecutor. A defendant's right to change lawyers must be weighed against the prosecutor's right to keep the case moving on schedule. This right must be exercised at a reasonable time and cannot be manipulated to obstruct the orderly procedure in our courts or interfere with the fair administration of justice.

Last-minute requests. Assume, for example, that a defendant seeks to change attorneys on the eve of trial. The new attorney is likely to agree to represent the defendant only if the trial is delayed so that the new attorney can prepare. The prosecutor may oppose delay, perhaps because the prosecution witnesses will not be available to testify at a later date. In these circumstances, the judge may deny the defendant's request to delay the trial. This would mean—realistically—that the defendant would have to stay with the original attorney rather than bring in an unprepared new attorney.

Privately Retained Defense Counsel vs. Appointed Counsel

The right to counsel of one's choice applies only to privately retained attorneys. A different legal test is applied when a defendant has court-appointed counsel. Check out Can I Fire My Court-Appointed Public Defender? to learn more.

(U.S. v. Gonzalez-Lopez, 548 U.S. 140 (2006); U.S. v. Neba, 901 F.3d 260 (5th Cir. 2018); U.S. v. Brown, 785 F.3d 1337 (9th Cir. 2015).)