Amicus Curiae Brief — Lisa M. Montgomery, Petitioner v. United States

No. 19-5921

In The

Supreme Court of the United States

-------------------------- ♦ ---------------------------

LISA M. MONTGOMERY,

Petitioner,

v.

UNITED STATES,

Respondent.

-------------------------- ♦ --------------------------

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

-------------------------- ♦ --------------------------

MOTION FOR LEAVE TO FILE AMICUS CURIAE BRIEF AND

BRIEF OF AMICUS CURIAE THE ETHICS BUREAU AT YALE IN

SUPPORT OF PETITIONER

-------------------------- ♦ --------------------------

Lawrence J. Fox

Counsel of Record

George W. and Sadella D. Crawford

Visiting Lecturer in Law

YALE LAW SCHOOL

127 Wall Street

New Haven, Connecticut 06511

(203) 432-9358

lawrence.fox@yale.edu

Counsel for Amicus Curiae

Dated: October 15, 2019

THE LEX GROUPDC i 1050 Connecticut Avenue, N.W. i Suite 500, #5190 i Washington, D.C. 20036

(202) 955-0001 i (800) 856-4419 i www.thelexgroup.com

i

Motion for Leave to File Brief of the Ethics

Bureau at Yale as Amici Curiae in Support of

Petitioners

Pursuant to Rule 37.2(b) of the Rules of this

Court, the Ethics Bureau at Yale (“the Bureau”)

moves for leave to file the attached amicus curiae

brief in support of the petition for certiorari in this

case.

The Bureau is a clinic comprised of fourteen

law students and is supervised by Lawrence Fox, an

experienced litigator and expert in professional

responsibility. The clinic drafts amicus briefs in cases

concerning professional responsibility; assists defense

counsel with ineffective assistance of counsel claims

relating to the professional responsibility of lawyers;

and offers ethics advice and counsel on a pro bono

basis to not-for-profit legal service providers, courts,

and law school clinics. This Court accepted the

Bureau’s most recent amicus brief on January 10,

2019.

The case before this Court raises issues

implicating the professional responsibility of defense

counsel and judges, as well as the integrity of the

judiciary as a whole. The Bureau has an abiding

interest in ensuring that the lawyer-client

relationship is sufficiently protected, and exists in a

manner conducive to generating trust between client

and lawyer. This is an even more pressing concern in

the criminal context, and the need to clarify that

indigent defendants with appointed counsel are

protected against the arbitrary removal of counsel is

therefore all the greater. Trust in one’s lawyer is

fundamental to the ability to mount an adequate

defense, as without trust the client may never share

crucial information for the defense with his or her

ii

lawyer. Further, without safeguards on arbitrary

judicial removal of counsel, a lawyer’s obligation to

zealously advocate for his or her client is

unacceptably undercut by the need to avoid removal

for any reason—or no reason—whatsoever. The

Bureau hopes that this brief will assist this Court in

deliberating the issues of legal ethics raised in this

case.

Petitioner has consented to the filing of this

brief, and counsel for proposed amicus made a goodfaith effort to obtain the consent of Respondent to the

filing of their brief as well. On Wednesday, October 9,

2019, the Bureau sent notice and a request for consent

for the filing of an amicus curiae brief to Counsel for

the Respondent. On October 11, Counsel for

Respondent informed the Bureau that the request

had been replied to via postal mail the previous day,

but could not inform the Bureau of its answer

electronically. As of filing, the Bureau has not yet

received Respondent’s answer in the mail. The

Bureau will update the Court when it receives that

answer.

Accordingly, proposed amicus respectfully

requests that the Court grant the motion for leave to

file an amicus curiae brief.

Respectfully submitted,

/s/ Lawrence J. Fox

Lawrence J. Fox

Counsel of Record

George W. and Sadella D. Crawford Visiting

Lecturer in Law Yale Law School

127 Wall Street

New Haven, Connecticut 06511

(203) 432-9358

lawrence.fox@yale.edu

iii

Table of Contents

Page

Motion for Leave to File .............................................. i

Table of Contents .......................................................iii

Table of Authorities ................................................... vi

Interest of Amicus Curiae .......................................... 1

Summary of Argument ............................................... 2

Argument .................................................................... 5

I.

The Current Split Among Lower Courts

Imperils the Rights of Criminal Defendants

to Continued Representation by Their

Appointed Counsel ........................................... 5

A. Lower Courts Differ on Whether the

Constitution Protects the Right to

Continued Representation by Appointed

Counsel........................................................ 5

B. This Court Has Never Squarely

Addressed the Termination of Appointed

Counsel....................................................... 7

II.

Removing

a

Defendant’s

Appointed

Counsel, Against that Defendant’s Wishes

and Without a Hearing, Violates the Sixth

Amendment ...................................................... 9

iv

A. The Sixth Amendment Right to Counsel

Safeguards the Ability of All Defendants

to Trust and Have Confidence in Their

Attorneys..................................................... 9

B. The Law of Attorney-Client Relations

Further Demonstrates that Ms. Clarke’s

Termination

Violated

the

Sixth

Amendment............................................... 11

1. The Court’s Interpretation of the

Sixth Amendment Should be Guided

by the Law of Attorney-Client

Relations .............................................. 11

2. Attorney-Client Law Protects the

Right

Against

Nonconsensual

Termination of an Attorney-Client

Relationship, Not the Right to

Counsel of Choice ................................ 12

3. A Client’s Interest in Continuing a

Representation May Be Overridden

Only

When

Serious

Lawyer

Misconduct Has Occurred ................... 15

III. Removing

a

Defendant’s

Appointed

Counsel, Against That Defendant’s Wishes

and Without a Hearing, Violates the Fifth

and Fourteenth Amendments ....................... 20

A. Construing

Protections

Against

Removal of Counsel to Apply Only to

Those with the Means to Hire Attorneys

Would Raise Grave Constitutional

Concerns.................................................... 20

v

B. Arbitrary

Removal

of

Counsel

Unlawfully Interferes with Lawyers’

Obligations to Effectively Advocate for

their Clients. ............................................. 21

IV. The District Court was Required to Conduct

an

Evidentiary

Hearing

Before

Terminating Ms. Clarke ................................ 22

Conclusion ................................................................. 23

vi

Table of Authorities

Page(s)

Cases

Caplin & Drysdale, Chartered v. United States,

491 U.S. 617 (1989) .................................... 8, 20

Chambers v. Florida,

309 U. S. 227, 241 (1940) ........................... 4, 20

Chandler v. Fla.,

449 U.S. 560 (1981) .................................... 5, 23

Clements v. State,

817 S.W.2d 194 (Ark. 1991) ............................. 6

Com. v. Jordan,

733 N.E.2d 147 (Mass. App. Ct. 2000) ............ 6

Daniels v. Lafler,

501 F.3d 735 (6th Cir. 2007) ...................... 7, 19

English v. State,

259 A.2d 822 (Md. Ct. Spec. App. 1969) .......... 6

Ford v. Wainwright,

477 U.S. 399 (1986) ........................................ 23

Freeman v. Chicago Musical Instrument Co.,

689 F.2d 715 (7th Cir. 1982) ...................... 3, 16

Glueck v. Jonathan Logan, Inc.,

653 F.2d 746 (2d Cir. 1981) ........................... 17

vii

Griffin v. Illinois,

351 U.S. 12 (1956) ...................................... 4, 20

Harling v. United States,

387 A.2d 1101 (D.C. Cir. 1978) ........................ 5

In re Appeal of Infotechnology, Inc.,

582 A.2d 215 (Del. 1990) ................................ 17

In re Dressler Industries, Inc.,

972 F.2d 540 (5th Cir. 1992) .......................... 17

In re Estate of Myers,

130 P.3d 1023 (Colo. 2006) ...................... 16, 22

In re Nitla S.A. de C.V.,

92 S.W.3d 419 (Tex. 2002) ............................... 3

In re Users Systems Services, Inc.,

22 S.W.3d 331 (Tex. 1999) ............................. 17

Lane v. State,

80 So. 3d 280 (Ala. Crim. App. 2010) .... 3, 9, 10

Luis v. United States,

136 S. Ct. 1083 (2016) ................................ 9, 20

Mathews v. Eldridge,

424 U.S. 319 (1976) .................................... 5, 23

Matter of Welfare of M.R.S.,

400 N.W.2d 147 (Minn. Ct. App. 1987) ........... 6

McCoy v. Louisiana,

138 S. Ct. 1500 (2018) ................................ 3, 11

viii

McKinnon v. State,

526 P.2d 18 (Alaska 1974) ............................. 10

Montejo v. Louisiana,

556 U.S. 778 (2009) .................................... 4, 22

Morris v. Slappy,

461 U.S. 1 (1983) ...................................... 11, 20

Nix v. Whiteside,

475 U.S. 157 (1986) ........................................ 11

People v. Harlan,

54 P.3d 871 (Colo. 2002) .................................. 7

People v. Isham,

923 P.2d 190 (Colo. Ct. App. 1995) .................. 7

People v. Johnson,

547 N.W.2d 65 (Mich. Ct. App. 1996) .............. 6

Powell v. Alabama,

287 U.S. 45 (1932) ............................................ 9

Smith v. Superior Court of Los Angeles Cty.,

440 P.2d 65 (Cal. 1968) .................... 4, 6, 21, 22

State v. Huskey,

82 S.W.3d 297 (Tenn. Crim. App. 2002).......... 7

State v. McKinley,

860 N.W.2d 874 (Iowa 2015).......................... 10

United States v. Basham,

561 F.3d 302 (4th Cir. 2009) ...................... 7, 19

ix

United States v. Dolan,

570 F.2d 1177 (3d Cir. 1978) ......................... 15

United States v. Gearhart,

576 F.3d 459 (7th Cir. 2009) ........................ 5, 9

United States v. Gonzalez-Lopez,

399 F.3d 924 (8th Cir. 2005) .......................... 14

United States v. Gonzalez-Lopez,

548 U.S. 140 (2006) ................................ passim

United States v. Kitchin,

592 F.2d 900 (5th Cir. 1979) .................... 17, 18

United States v. Myers,

294 F.3d 203 (1st Cir. 2002) ...................... 5, 11

United States v. Orleans-Lindsey,

572 F. Supp. 2d 144 (D.D.C. 2008) ................ 16

United States v. Parker,

469 F.3d 57 (2d Cir. 2006) ......................... 7, 19

United States v. Wade,

388 U.S. 218 (1967) ................................. 4-5, 23

Weaver v. State,

894 So. 2d 178 (Fla. 2004) ................... 4, 20, 21

Wheat v. United States,

486 U.S. 153 (1988) ....................... 2-3, 8, 10, 11

Wood v. Georgia,

450 U.S. 261 (1981) ........................................ 21

x

Woods v. Covington County Bank,

537 F.2d 804 (5th Cir. 1976) .......................... 17

Constitutional Provisions

U.S. CONST. amend. V........................................... 3, 20

U.S. CONST. amend. VI ..................................... passim

U.S. CONST. amend. XIV ...................................... 3, 20

Rules

Mod. R. Prof’l Conduct r. 1.1 .................................... 19

Mod. R. Prof’l Conduct r. 1.2 .................................... 11

Mod. R. Prof’l Conduct r. 1.3 ................................ 4, 21

Mod. R. Prof’l Conduct r. 1.7 .................................... 19

Mod. R. Prof’l Conduct r. 1.8 ................................ 4, 20

Mod. R. Prof’l Conduct r. 1.16 ........................ 3, 12, 14

Mod. R. Prof’l Conduct r. 3.7 .................................... 19

Sup. Ct. R. 37.6 ........................................................... 1

Other Authorities

Restatement (Third) of the

Law Governing Lawyers § 14 ................................... 13

Restatement (Third) of the

Law Governing Lawyers § 32 ......................... 3, 13, 14

xi

Restatement (Third) of the

Law Governing Lawyers § 6 ......................... 12, 16, 17

1

Interest of Amicus Curiae1

The Ethics Bureau at Yale is a clinic composed

of fourteen law students supervised by an experienced

practicing lawyer, lecturer, and ethics teacher. The

Bureau has drafted amicus briefs in matters

involving lawyer and judicial conduct and ethics; has

assisted defense counsel with ineffective assistance of

counsel claims implicating issues of professional

responsibility; and has provided assistance, counsel,

and guidance on a pro bono basis to not-for-profit legal

service providers, courts, and law schools.

Amicus has no direct interest in the outcome of

this litigation. Because this case implicates the

protection of the relationship between an appointed

counsel and client, the Bureau believes it might assist

the Court in resolving the important issues presented.

1 Pursuant to Rule 37.6, Amicus affirms that no counsel for a

party authored this brief in whole or in part and that no person

other than Amicus and its counsel made a monetary contribution

to its preparation or submission. The Ethics Bureau at Yale is a

student clinic of Yale Law School. The views expressed herein

are not necessarily those of Yale University or Yale Law School.

2

Summary of Argument

The Sixth Amendment right to counsel,

decades of this Court’s and lower courts’

jurisprudence, and long-standing principles of

professional responsibility make clear that a district

court judge cannot terminate appointed counsel

without affording an opportunity to contest the

reasons for termination. To have this Court decide

otherwise would allow trial courts to breach one of the

most important rights of a criminal defendant: the

right to continued representation by the counsel of

one’s choice. The right to continued representation by

appointed counsel is separate from initial choice of

counsel, and must be protected to ensure trust and

open communication between client and counsel.

The relevant facts are straightforward. After

Lisa Marie Montgomery was arrested, the trial court

appointed various lawyers to represent her, including

federal public defenders lacking in substantial capital

defense experience, and Judy Clarke, a nationally

renowned Capital Resource Counsel lawyer. Petition

for a Writ of Certiorari at 2-6. Subsequently, the

district court terminated the appointment of Ms.

Clarke and barred her from contacting Mrs.

Montgomery; the reasons why are disputed because

the district court denied Mrs. Montgomery’s request

for an evidentiary hearing. Id. at 6-7. After a new

defense team was formed, Mrs. Montgomery was

convicted of first-degree murder and sentenced to

death. Id. at 10.

“The right to select counsel of one’s choice” is at

the root of the Sixth Amendment. United States v.

Gonzalez-Lopez, 548 U.S. 140, 147-48 (2006). While

an indigent defendant has no right to initial choice of

appointed attorney, Wheat v. United States, 486 U.S.

3

153, 159 (1988), with respect to a defendant’s interest

in “continued representation . . . there is no

distinction between indigent defendants and

nonindigent defendants.” Lane v. State, 80 So. 3d 280,

295 (Ala. Crim. App. 2010). Further, attorney-client

law—which delineates the scope of the Sixth

Amendment right to counsel, see, e.g., McCoy v.

Louisiana, 138 S. Ct. 1500, 1509-10 (2018)—clarifies

that so long as the client wishes the representation to

continue, the client has a right against termination.

See Model Rules of Prof’l Conduct r. 1.16(b);

Restatement (Third) of the Law Governing Lawyers

§ 32(3) (Am. Law Inst. 2000); id. cmt. c.

Disqualification is a disfavored remedy under the law

governing attorney-client relations, and should only

be resorted to when no other remedy appears

adequate. See, e.g., Freeman v. Chi. Musical

Instrument Co., 689 F.2d 715, 721 (7th Cir. 1982); In

re Nitla S.A. de C.V., 92 S.W.3d 419, 422 (Tex. 2002).

The district court’s stated reason for dismissing Ms.

Clarke, that she was communicating poorly with cocounsel, see Order at 4, Montgomery v. United States,

No. 12-08001-CV-SJ-GAF (W.D. Mo. Dec. 21, 2015),

ECF No. 173, fails to meet this high standard.

Differentiating between the rights of the

wealthy and of the indigent with respect to

termination of counsel also runs afoul of the Fifth

Amendment’s Due Process Clause and the

Fourteenth Amendment’s Equal Protection Clause.

Had Mrs. Montgomery hired her counsel, the Sixth

Amendment would guarantee that her choice of

attorney was protected against arbitrary removal.

Gonzalez-Lopez, 548 U.S. at 144. Failure to extend the

same treatment to those who lack the means to hire

counsel impermissibly bifurcates the treatment of

criminal defendants on the basis of wealth. “Both

equal protection and due process emphasize the

4

central aim of our entire judicial system—all people

charged with crime must, so far as the law is

concerned, ‘stand on an equality before the bar of

justice in every American court.’” Griffin v. Illinois,

351 U.S. 12, 17 (1956) (quoting Chambers v. Florida,

309 U. S. 227, 241 (1940)). The rules of professional

conduct provide that a lawyer’s ethical obligations are

to his or her client, regardless of who pays for the

lawyer’s services. See Weaver v. State, 894 So. 2d 178,

188-89 (Fla. 2004); Model Rules of Prof’l Conduct r.

1.8(f). To ensure that this is the case, the attorneyclient relationship must be as inviolable between a

client and an appointed attorney as it is between a

client and an attorney who has been retained. Smith

v. Superior Court of L.A. Cty., 440 P.2d 65, 74 (Cal.

1968). Further, every lawyer is obligated to act with

“commitment and dedication to the interests of the

client and with zeal in advocacy upon the client’s

behalf.” Model Rules of Prof’l Conduct r. 1.3 cmt. 1.

Allowing arbitrary removal of appointed counsel

would impermissibly require all appointed counsel to

balance their duty to zealously advocate for their

client against the probability of removal, should that

zealous advocacy displease the trial judge. Smith, 440

P.2d at 74.

Finally, the district court improperly failed to

hold an evidentiary hearing. In “all critical stages of

the criminal proceedings” the “Sixth Amendment

guarantees a defendant the right to have counsel

present.” Montejo v. Louisiana, 556 U.S. 778, 786

(2009). It is in precisely in circumstances such as Ms.

Clarke’s, where the facts are in dispute, that a

hearing is needed to ensure that an extreme remedy

is not employed on an unsound basis. Such a hearing,

with counsel present, is necessary “to assure a

meaningful ‘defence’” as required by the Sixth

Amendment. United States v. Wade, 388 U.S. 218, 225

5

(1967). It is also necessary to “provid[e] a record for

appellate review” and thereby to ensure the fairness

and adequacy of the proceedings at trial. Chandler v.

Fla., 449 U.S. 560, 577 (1981). It is these same

purposes that animate the requirements of notice and

an opportunity to be heard, the core of what due

process requires. Mathews v. Eldridge, 424 U.S. 319

(1976).

In light of these considerations, Amicus urges

this Court reverse the judgment of the court below.

Argument

I. The Current Split Among Lower Courts

Imperils the Rights of Criminal Defendants to

Continued Representation by Their Appointed

Counsel.

A. Lower Courts Differ on Whether the

Constitution Protects the Right to

Continued Representation by Appointed

Counsel.

The right of indigent defendants to continued

representation by appointed counsel is of paramount

importance, as the D.C., First, and Seventh Circuits

have recognized. See Harling v. United States, 387

A.2d 1101, 1105 (D.C. Cir. 1978) (“[O]nce an attorney

is serving under a valid appointment by the court and

an attorney-client relationship has been established,

the court may not arbitrarily remove the attorney,

over the objections of both the defendant and his

counsel.”); United States v. Myers, 294 F.3d 203, 206

(1st Cir. 2002) (“Once a court appoints an attorney to

represent an accused . . . there must be good cause for

rescinding the original appointment and interposing

a new one”); United States v. Gearhart, 576 F.3d 459,

464 (7th Cir. 2009) (“The Sixth Amendment protects

6

a criminal defendant's right to a fair opportunity to

secure the counsel of his choice . . . [and] implies the

right to continuous representation by the counsel of

one's choice.”).

The vast majority of states have long shared

this view. See, e.g., Smith, 440 P.2d at 74 (“[O]nce

counsel is appointed to represent an indigent

defendant, whether it be the public defender or a

volunteer private attorney, the parties enter into an

attorney-client relationship which is no less inviolable

than if counsel had been retained”); English v. State,

259 A.2d 822, 826 (Md. Ct. Spec. App. 1969) (“[O]nce

counsel has been chosen, whether by the court or the

accused, the accused is entitled to the assistance of

that counsel at trial.”); Matter of Welfare of M.R.S.,

400 N.W.2d 147, 152 (Minn. Ct. App. 1987) (“once an

attorney is serving under a valid appointment by the

court and an attorney-client relationship has been

established, the court may not arbitrarily remove the

attorney over the objection of both the defendant and

counsel”); Clements v. State, 817 S.W.2d 194, 200

(Ark. 1991) (“where, as here, a trial court terminates

the representation of an attorney, either private or

appointed, over the defendant's objection and under

circumstances which do not justify the lawyer's

removal and which are not necessary for the efficient

administration of justice, a violation of the accused's

[Sixth Amendment] right to particular counsel

occurs”); People v. Johnson, 547 N.W.2d 65, 69 (Mich.

Ct. App. 1996) (“arbitrary, unjustified removal of a

defendant's appointed counsel by the trial court

during a critical stage in the proceedings, over the

objection of the defendant, violates the defendant's

Sixth Amendment right to counsel.”); Com. v. Jordan,

733 N.E.2d 147, 152 (Mass. App. Ct. 2000) (“We

disagree . . . [with] the claim that an indigent

defendant has no cause to complain about the removal

7

of his attorney”); State v. Huskey, 82 S.W.3d 297, 305

(Tenn. Crim. App. 2002) (“any meaningful distinction

between indigent and non-indigent defendants’ right

to representation by counsel ends once a valid

appointment of counsel has been made”); People v.

Harlan, 54 P.3d 871, 878 (Colo. 2002) (“[O]nce counsel

is appointed, the attorney-client relationship ‘is no

less inviolable than if the counsel had been retained

by the defendant.’” (quoting People v. Isham, 923 P.2d

190, 193 (Colo. Ct. App. 1995)).

Recently, a circuit split on the issue has

developed. See United States v. Basham, 561 F.3d

302, 324 (4th Cir. 2009) (“[A]n indigent criminal

defendant has no constitutional right to have a

particular lawyer represent him. . . . Thus, the only

right implicated . . . [is] the right to effective

assistance of counsel.” (internal quotation marks

omitted)); Daniels v. Lafler, 501 F.3d 735, 739 (6th

Cir. 2007) (“[A]n indigent defendant forced to rely on

court-appointed counsel . . . has no choice-of-counsel

right.”); United States v. Parker, 469 F.3d 57, 61 (2d

Cir. 2006) (“There is no constitutional right to

continuity of appointed counsel.”). This Court should

resolve this split by clarifying that a trial judge may

not remove a defendant’s appointed counsel, against

the wishes of that defendant, without a hearing that

allows the defendant to contest the termination.

B. This Court Has Never Squarely Addressed

the Termination of Appointed Counsel.

This Court has never directly addressed what

rights defendants possess against the nonconsensual

termination of appointed counsel. The Court’s most

relevant statement comes in Gonzalez-Lopez, which

observed that “[n]othing we have said today casts any

doubt or places any qualification upon our previous

8

holdings that limit the right to counsel of choice,”

including two holdings that “the right to counsel of

choice does not extend to defendants who require

counsel to be appointed for them.” 548 U.S. at 151

(citing Wheat, 486 U.S. 153 and Caplin & Drysdale,

Chartered v. United States, 491 U.S. 617 (1989)). But

this comment, cited by the district court below, Order

at 13, ECF 173, does not resolve the dispute at hand:

it fails to distinguish between the right to have

counsel of choice appointed, which the Sixth

Amendment does not protect, and the right against

nonconsensual termination of already appointed

counsel, at issue in this case. Furthermore, the

Gonzalez-Lopez comment is dicta: it does not purport

to make new law, merely describing the holdings of

past cases, and Gonzalez-Lopez concerned only the

remedy for a Sixth Amendment violation, not the

scope of the right. Id. at 152.

In turn, neither of the holdings Gonzalez-Lopez

cites, Wheat and Caplin & Drysdale, governs the

present question. Although those opinions contain

ancillary discussion of appointed counsel, the cases

concerned retained counsel. See Caplin & Drysdale,

491 U.S. at 620; Brief for Petitioner at 9, Wheat, 486

U.S. 153. Furthermore, each addressed the retention

of new counsel, not the termination of already

appointed counsel. See Caplin & Drysdale, 491 U.S.

at 625 (rejecting petitioner’s argument concerning

“cases where the defendant will be unable to retain

the attorney of his choice”); Wheat, 486 U.S. at 155

(discussing “petitioner’s proposed substitution” of

counsel).

The present case provides this Court an

opportunity to clearly answer the question that its

past opinions have discussed only obliquely and

inconclusively. Doing so will clarify the inconsistent

9

and murky jurisprudence of the lower courts,

establish federal uniformity, and provide a rule on

which courts may rely to justly and efficiently conduct

future criminal trials.

II. Removing a Defendant’s Appointed Counsel,

Against that Defendant’s Wishes and Without

a Hearing, Violates the Sixth Amendment.

A. The Sixth Amendment Right to Counsel

Safeguards the Ability of All Defendants to

Trust and Have Confidence in Their

Attorneys.

“The right to select counsel of one’s choice . . .

[is] the root meaning of the [Sixth Amendment’s]

guarantee.” Gonzalez-Lopez, 548 U.S. at 147-48. Its

centrality speaks to “the necessarily close working

relationship between lawyer and client, the need for

confidence, and the critical importance of trust” in the

attorney-client relationship. Luis v. United States,

136 S. Ct. 1083, 1089 (2016) (citing Powell v.

Alabama, 287 U.S. 45, 53 (1932)). Of course, the right

“for the defendant to secure counsel of choice has

limits”: courts may properly require that counsel who

is incompetent or has a conflict of interest be removed.

Id. But Mrs. Montgomery’s claim implicates the core

of this right, not its exceptions.

Defendants with appointed counsel have an

equal right as those who hire counsel to “confidence”

and “trust” in their “close working relationship

between lawyer and client.” Id. “The right to counsel

of choice . . . not only ‘protects a criminal defendant’s

right to a fair opportunity to secure the counsel of his

choice’ initially, but also ‘implies the right to

continuous representation by the counsel of one’s

choice.’” Lane, 80 So. 3d at 294 (quoting Gearhart, 576

F.3d at 464). While an indigent defendant has no

10

right to initial choice of appointed attorney, Wheat,

486 U.S. at 159, with respect to a defendant’s interest

in “continued representation . . . there is no

distinction between indigent defendants and

nonindigent defendants.” Lane, 80 So. 3d at 295.

“Trust and good communication are crucial”

both “when a client has resources and privately

retains a lawyer” and “when a client is indigent and

obtains counsel appointed by the court.” State v.

McKinley, 860 N.W.2d 874, 880 (Iowa 2015). Because

“opportunities for establishing trust and effective

communication are generally enhanced over time

through interpersonal contact,” removing a

defendant’s appointed attorney against the

defendant’s wishes implicates the Sixth Amendment.

Id.

Often, the outcome of a criminal trial

may hinge upon the extent to which the

defendant is able to communicate to his

attorney the most intimate and

embarrassing details of his personal life.

Complete candor in attorney-client

consultations may disclose defenses or

mitigating circumstances that defense

counsel would not otherwise have

uncovered.

McKinnon v. State, 526 P.2d 18, 22 (Alaska 1974).

“Once established, the interest in maintaining a

relationship of trust with counsel is of no less

importance to an indigent client than to one with

ample resources to hire counsel.” McKinley, 860 N.W.

at 880. Impecunity cannot “preclude recognition of an

indigent

defendant’s

interest

in

continued

representation by a particular attorney who has been

appointed to represent him” and “with whom he has

11

developed a relationship of trust and confidence.”

Morris v. Slappy, 461 U.S. 1, 22, 23 n.5 (1983)

(Brennan, J., concurring). Allowing defense counsel to

be nonconsensually terminated improperly infringes

on this interest. See Myers, 294 F.3d at 206.

B. The Law of Attorney-Client Relations

Further Demonstrates that Ms. Clarke’s

Termination

Violated

the

Sixth

Amendment

1.

The Court’s Interpretation of the Sixth

Amendment Should be Guided by the

Law of Attorney-Client Relations

The primary rules regulating the conduct of

attorneys and their relations with clients are the

rules of professional conduct that each state has

adopted, typically based on the ABA's Model Rules of

Professional Conduct. Because these rules constitute

a detailed body of law concerning the rights and

obligations of lawyers and clients, this Court’s Sixth

Amendment jurisprudence often turns to attorneyclient law to delineate the scope of the right to

counsel. For example, this Court has used attorneyclient law to evaluate claims of denial of effective

assistance of counsel, defining the effective assistance

required by the Sixth Amendment in terms of the

standards of professional conduct imposed upon

lawyers. See, e.g., McCoy, 138 S. Ct. at 1509 (citing

Model Rules of Prof’l Conduct r. 1.2(a)); Wheat, 486

U.S. at 160 (citing the Model Code and Model Rules of

Professional Conduct); Nix v. Whiteside, 475 U.S. 157,

166-170 (1986) (citing multiple provisions of the

Canons of Professional Ethics, Model Code of

Professional Conduct, and Model Rules of

Professional Conduct).

12

In addition to regulating the quality of a legal

representation, attorney-client law regulates when a

legal representation may end through withdrawal or

disqualification. See Model Rules of Prof’l Conduct r.

1.16; Restatement (Third) of the Law Governing

Lawyers § 6 cmt. i. Because withdrawal and

disqualification are litigated relatively frequently—

more frequently than the nonconsensual termination

of appointed counsel—they have given courts greater

opportunities to consider when clients’ rights to

continue employing counsel may be overridden by

court order. This jurisprudence, which reflects

sustained judicial reflection on the value of choice of

counsel and when it must yield in the interests of

justice, should guide how this Court understands the

contours of the right to counsel that the Constitution

protects. As with its use of the rules of professional

conduct in interpreting the effective assistance of

counsel, the Court’s determination of whether the

Sixth Amendment includes a right against

nonconsensual termination should look to how that

right is protected by the law governing lawyers.

2.

Attorney-Client Law Protects the Right

Against Nonconsensual Termination of

an Attorney-Client Relationship, Not

the Right to Counsel of Choice

In denying Mrs. Montgomery’s § 2255 motion,

the district court characterized her Sixth Amendment

argument as resting on a claim of entitlement to

“counsel of choice.” Order at 13, ECF 173 (quoting

Gonzalez-Lopez, 548 U.S. at 151). After quoting

Gonzalez-Lopez’s statement that the right to counsel

of choice does not extend to litigants requiring

appointed attorneys, the district court observed that

Mrs. Clarke was appointed, and concluded

straightaway that no Sixth Amendment violation

13

occurred. Id. This conclusion, however, elides the

distinction between the right to create an attorneyclient relationship and the right against the

nonconsensual termination of that relationship—a

distinction central to attorney-client law, which

stringently protects only the latter right. Mrs.

Montgomery does not claim the right to require

appointment of counsel of choice but rather the right

to continue being represented by an already

appointed lawyer. The Sixth Amendment protects

this latter right, one enshrined in attorney-client law.

Just as the Sixth Amendment does not demand

that attorneys work for any client who wishes to hire

them, attorney-client law does not guarantee

individuals the right to be accepted as a client by the

lawyer of their choice. And just as clients have no

general obligation to employ a particular lawyer,

lawyers are generally free to accept or decline

employment as they wish. See Restatement (Third) of

the Law Governing Lawyers § 14 cmt. b (“Lawyers

generally are as free as other persons to decide with

whom to deal . . . . A lawyer, for example, may decline

to undertake a representation that the lawyer finds

inconvenient or repugnant.”). Thus, before an

attorney-client relationship begins, a client’s rights

are not violated if the client is unable to secure the

representation of a particular lawyer.

Once a representation begins, however,

attorney-client law grants the client a comprehensive

set of rights against the lawyer. In particular, because

a client may suffer substantial harm from desertion,

the law obligates the lawyer to continue the

representation. Restatement (Third) of the Law

Governing Lawyers § 32 cmt. c (“[A] lawyer who

undertakes a representation ordinarily should see it

through to the contemplated end of the lawyer’s

14

services when failure to do so would inflict burdens on

the client.”). While lawyers are not absolutely barred

from withdrawal, it is permitted only in a few

enumerated conditions. See Model Rules of Prof’l

Conduct r. 1.16(b); Restatement (Third) of the Law

Governing Lawyers § 32(3); id. cmt. c (“[T]he general

rule is that a lawyer must persist despite unforeseen

difficulties and carry through the representation to its

intended conclusion, with the limited exceptions

stated in Subsection (3).”). A client is always free to

terminate a representation, id. § 32(1), but so long as

the client wishes it to continue, attorney-client law

ordinarily protects the right against termination.

This right against nonconsensual termination

of a representation was at issue in Gonzalez-Lopez.

Mr. Gonzalez-Lopez hired Joseph Low to represent

him shortly after he was arraigned. United States v.

Gonzalez-Lopez, 399 F.3d 924, 926-27 (8th Cir. 2005).

Two months after this attorney-client relationship

began, the district court barred Mr. Low from

representing Mr. Gonzalez-Lopez at trial. Id. at 92728. Mr. Gonzalez-Lopez’s complaint did not concern

his right to retain his chosen attorney, and he did not

ask the court to compel Mr. Low to represent him.

Rather, the analysis turned on whether the district

court could terminate an already existing attorneyclient relationship. The choice denied Mr. GonzalezLopez was not the choice of which counsel to employ

but rather the choice to keep counsel already

employed.

Mrs. Montgomery’s complaint is analogous to

Mr. Gonzalez-Lopez’s. She, too, claims neither the

right to require a particular lawyer to represent her

nor the right to the court’s assistance in compelling

that representation. Rather, she objects that the

district court terminated an already existing

15

attorney-client relationship against her wishes. Ms.

Clarke could have declined to represent Mrs.

Montgomery, and the district court could have chosen

to appoint a different lawyer, but once Ms. Clarke’s

representation commenced Mrs. Montgomery gained

certain rights against its nonconsensual termination.

By terminating Ms. Clarke over Mrs. Montgomery’s

objections, the district court infringed upon her rights

in just the same way as the decision to terminate Mr.

Low as Mr. Gonzalez-Lopez’s lawyer did.

The Sixth Amendment gives defendants no

right to demand that the Court appoint a particular

lawyer as defense counsel. It is a mistake, however, to

conclude that a defendant therefore has no right

against the termination of counsel. As attorney-client

law demonstrates, the right against termination is

central to the attorney-client relationship in a way

that the right to retain a particular lawyer is not. Just

as attorney-client law grants all clients—even those

in ordinary civil litigation—the right to choose

whether their lawyer shall continue a representation,

so too must the Sixth Amendment grant clients facing

potential criminal punishment the same right.

3.

A Client’s Interest in Continuing a

Representation May Be Overridden

Only When Serious Lawyer Misconduct

Has Occurred

The Sixth Amendment grants no absolute right

against the nonconsensual termination of appointed

counsel. Sufficiently weighty countervailing interests

may overcome a client’s interest in maintaining an

attorney-client relationship: courts may terminate or

disqualify retained counsel over the objections of both

client and lawyer. See, e.g., United States v. Dolan,

570 F.2d 1177, 1179 (3d Cir. 1978); Restatement

16

(Third) of the Law Governing Lawyers § 6(8). Courts

exercise such powers, however, only when a lawyer

has engaged in unethical conduct that threatens the

integrity of trial. This Court should adopt a similar

standard to govern when the Sixth Amendment

permits nonconsensual termination of appointed

counsel—a standard that Ms. Clarke’s conduct did not

meet.

The law of disqualification represents a

thorough judicial determination of when the interests

of fair and efficient justice outweigh a client’s interest

in maintaining an attorney-client relationship.

Because “[t]he costs imposed on the client . . . can be

substantial,” id. cmt. i, when a lawyer is removed

nonconsensually, disqualification is a disfavored

remedy “appropriate only when less-intrusive

remedies are not reasonably available,” id. State and

federal courts thus disqualify only when no other

remedy is adequate. See, e.g., Freeman, 689 F.2d at

721 (“[D]isqualification . . . is a drastic measure which

courts should hesitate to impose except when

absolutely necessary.”); In re Estate of Myers, 130

P.3d 1023, 1025 (Colo. 2006) (“[D]isqualification is a

severe remedy that should be avoided whenever

possible. . . . [A] court is therefore obliged to impose

less severe sanctions whenever they would be

adequate for that purpose.” (citations omitted)).2

2 Courts do, of course, have greater powers to remove lawyers

when clients do not object. In justifying its termination of Ms.

Clarke, the district court relied primarily on United States v.

Orleans-Lindsey, 572 F. Supp. 2d 144 (D.D.C. 2008). See Order

at 11-13, ECF 173. As the opinion in Orleans-Lindsey stressed,

however, Mr. Orleans-Lindsey did not object to the termination

of the representation either at the time or the plea hearing, when

explicitly asked. Orleans-Lindsey, 572 F. Supp. 2d at 174. The

fact that a court may terminate a defendant’s legal

17

Since disqualification is so disfavored, it is

typically employed only when a lawyer has engaged

in serious ethical misconduct that threatens the

integrity of court proceedings or the rights of a client.

The rules of professional conduct guide courts’

determinations of when such misconduct has

occurred. See In re Dressler Industries, Inc., 972 F.2d

540, 543 (5th Cir. 1992) (“Our source for the

standards of the profession has been the canons of

ethics developed by the American Bar Association.”);

In re Users Systems Services, Inc., 22 S.W.3d 331, 334

(Tex. 1999) (holding that the rules “do not determine

whether counsel is disqualified in litigation, but they

do provide guidelines and suggest the relevant

considerations”). Restatement (Third) of the Law

Governing Lawyers § 6 cmt. i (describing

disqualification as the standard remedy if a lawyer is

conflicted or might disclose confidential client

information). Although the precise verbal formulae

courts employ differ, they broadly agree that

disqualification is inappropriate absent misconduct of

this sort.3

representation with his approval clearly does not undermine

Mrs. Montgomery’s claim that the district court erred in

terminating her legal representation over her objections.

3 The Second Circuit instructs that disqualification “should

ordinarily be granted only when a violation of the Canons of the

Code of Professional Responsibility poses a significant risk of

trial taint.” Glueck v. Jonathan Logan, Inc., 653 F.2d 746, 748

(2d Cir. 1981) (citation omitted). The Fifth Circuit has required

“‘a reasonable possibility that some specifically identifiable

impropriety’ actually occurred,” United States v. Kitchin, 592

F.2d 900, 903 (5th Cir. 1979) (quoting Woods v. Covington

County Bank, 537 F.2d 804, 813 (5th Cir. 1976)). Delaware

permits trial courts to disqualify only when “the challenged

conduct prejudices the fairness of the proceedings, such that it

adversely affects the fair and efficient administration of justice.”

In re Appeal of Infotechnology, Inc., 582 A.2d 215, 216 (Del.

1990).

18

This restriction, notably, applies even in civil

cases, where the Sixth Amendment does not apply,

and where the consequences of disqualification are far

less grave than in criminal matters. See supra note 3.

Furthermore, when criminal courts decide on

disqualification, they understand the balance struck

between the interests of the client and the interests of

justice to follow from the value the Sixth Amendment

places on the client’s interest in the continuation of an

already existing attorney-client relationship. See, e.g.,

Kitchin, 592 F.2d at 903. That is, throughout

American law, courts view the attorney-client

relationship as sufficiently important that an ongoing

representation must yield—over the objections of

client and lawyer—only to seriously unethical lawyer

misconduct; in criminal matters, when the Sixth

Amendment is implicated, courts understand that

this requirement follows from the constitutional right

to counsel. This Court should not exempt the

termination of appointed counsel from this otherwise

universal requirement. It would be highly

incongruous were the Constitution to afford weaker

protection to the attorney-client relationships of

indigent criminal defendants under threat of

punishment than ordinary civil litigants are afforded

by the law governing lawyers. Indigent criminal

defendants’ interest in continuing attorney-client

relationships is no weaker, and the state’s interest in

the administration of justice is no stronger, than in

the other circumstances where termination requires

unethical conduct. The right to counsel generally

includes a right against nonconsensual termination,

including in criminal cases; the Sixth Amendment

protects the right to counsel in those cases, and it

should therefore be understood to encompass the

right against nonconsensual termination as well.

19

Furthermore, although the courts that have

considered termination of appointed counsel have

differed in their reasoning, see supra part I.A, the

actual holdings of these cases support the standard

proposed here: appointed counsel has been

terminated only when the counsel’s conduct violated

ethical rules in a manner undermining the integrity

of the trial. The Fourth Circuit has terminated

appointed counsel who may have been called to testify

at trial. Basham, 561 F.3d at 322-23; cf. Model Rules

of Prof’l Conduct r. 3.7(a). The Sixth Circuit has

terminated appointed counsel who failed to file basic

motions,

including

a

motion

to

suppress

incriminating evidence, that any competent lawyer

would have pursued. Daniels, 501 F.3d at 738; cf.

Model Rules of Prof’l Conduct r. 1.1. The Second

Circuit has terminated appointed counsel whose

adversarial proceeding against the district court

created a conflict of interest. Parker, 469 F.3d at 59;

cf. Model Rules of Prof’l Conduct r. 1.7. Though these

courts sometimes employed broader language, none

has held that counsel could be nonconsensually

terminated for conduct falling short of an ethical

violation.

Ms. Clarke’s conduct fell short of this level. The

district court did not claim that Ms. Clarke violated

any ethical prohibition, much less one threatening the

fairness of trial. Order at 4, ECF 173. Instead, Ms.

Clarke communicated poorly with co-counsel. Id. That

failure is insufficiently serious to override a client’s

right against the nonconsensual termination of a

legal representation.

20

III.Removing a Defendant’s Appointed Counsel,

Against That Defendant’s Wishes and Without

a Hearing, Violates the Fifth and Fourteenth

Amendments.

A. Construing Protections Against Removal of

Counsel to Apply Only to Those with the

Means to Hire Attorneys Would Raise

Grave Constitutional Concerns.

“[T]he Sixth Amendment guarantees a

defendant the right to be represented by an otherwise

qualified attorney whom that defendant can afford to

hire.” Luis, 136 S. Ct. at 1089 (alteration in original)

(quoting Caplin & Drysdale, 491 U.S. at 624). Had

Mrs. Montgomery hired counsel, the Sixth

Amendment would protect her choice of attorney

against arbitrary removal. See Gonzalez-Lopez, 548

U.S. at 144. Failure to extend the same treatment to

those without the means to hire counsel would

impermissibly bifurcate the treatment of criminal

defendants on the basis of wealth. “Both equal

protection and due process emphasize the central aim

of our entire judicial system—all people charged with

crime must, so far as the law is concerned, ‘stand on

an equality before the bar of justice in every American

court.’” Griffin, 351 U.S. at 17 (quoting Chambers, 309

U. S. at 241). “Nothing about indigent defendants

makes their relationships with their attorneys less

important, or less deserving of protection, than those

of wealthy defendants.” Slappy, 461 U.S. at 22 (1983)

(Brennan, J., concurring).

The rules of professional conduct state that a

lawyer’s ethical obligations are to the client,

regardless of who pays for the lawyer’s services. See

Model Rules of Prof’l Conduct r. 1.8(f); Weaver v.

State, 894 So. 2d at 188-9 (“[T]he attorney-client

21

relationship is independent of the source of

compensation because an attorney’s responsibility is

to the person he represents rather than the individual

or entity paying for his services.”). Thus,

once counsel is appointed to represent

an indigent defendant, whether it be the

public defender or a volunteer private

attorney, the parties enter into an

attorney-client relationship which is no

less inviolable than if counsel had been

retained. To hold otherwise would be to

subject that relationship to an

unwarranted

and

invidious

discrimination arising merely from the

poverty of the accused.

Smith, 440 P.2d at 74. “To allow trial courts to remove

an indigent defendant’s court-appointed counsel with

greater ease than a non-indigent defendant’s retained

counsel would stratify attorney-client relationships

based on defendants’ economic backgrounds.” Weaver,

894 So. 2d at 189.

B. Arbitrary Removal of Counsel Unlawfully

Interferes with Lawyers’ Obligations to

Effectively Advocate for their Clients.

Lawyers must act with “commitment and

dedication to the interests of the client and with zeal

in advocacy upon the client’s behalf.” Model Rules of

Prof’l Conduct r. 1.3 cmt. 1. This rule has

constitutional foundations. A lawyer’s conflict of

interest, for example, can run afoul of a defendant’s

right to due process and to counsel. Wood v. Georgia,

450 U.S. 261, 271 (1981). Removal of defense counsel

similarly implicates these two constitutional

protections:

22

if the advocate must labor under the

threat that, at any moment, if his

argument or advocacy should incur the

displeasure or lack of immediate

comprehension by the trial judge, he

may be summarily relieved as counsel on

a subjective charge of incompetency by

the very trial judge he is attempting to

convince, his advocacy must of necessity

be most guarded and lose much of its

force and effect.

Smith, 440 P.2d at 74 (quotation omitted). As a result,

the threat of arbitrary removal of appointed counsel

not only undermines indigent defendants’ trust in

their appointed counsel, but also impermissibly

interferes with appointed counsels’ ability to serve as

zealous and effective advocates for their clients.

IV.The District Court was Required to Conduct an

Evidentiary Hearing Before Terminating Ms.

Clarke

The district court improperly terminated Ms.

Clarke’s representation by failing to afford her an

evidentiary hearing. In “all critical stages of the

criminal proceedings” the “Sixth Amendment

guarantees a defendant the right to have counsel

present.” Montejo, 556 U.S. at 786. Whenever the

removal of a lawyer turns on disputed facts, trial

courts must hear evidence and make factual findings

before issuing a ruling. See, e.g., In re Estate of Myers,

130 P.3d at 1027 (“While we have never imposed a

mechanical hearing requirement on motions to

disqualify, justification for this extreme remedy will

often require particularized factual findings.”).

Because the district court terminated Ms. Clarke on

the basis of her co-counsel’s allegations without

23

informing her of their substance, Order at 4-5, ECF

173, the district court could not have known whether

those allegations were disputed or true. In these

circumstances a hearing is needed to ensure that such

an extreme remedy is not employed on an unsound

basis.

Beyond being necessary “to assure a

meaningful ‘defence’” Wade, 388 U.S. at 225, a

hearing with counsel is also necessary to “provid[e] a

record for appellate review” and thereby to ensure

fairness and adequacy at trial. Chandler, 449 U.S. at

577. There is a pressing need for this Court to clarify

that the Constitution generally requires a hearing

with the defendant’s counsel present before that

counsel can be removed against his or her own wishes

and those of the counsel’s client. Notice and an

opportunity to be heard are always at the core of what

due process requires. Eldridge, 424 U.S. 319. But

these rights are especially important in capital cases,

where there must be “heightened concern for fairness

and accuracy” in “review of the process requisite to

the taking of a human life.” Ford v. Wainwright, 477

U.S. 399, 414 (1986).

Conclusion

For these reasons, the petition for writ of

certiorari should be granted.

24

Respectfully Submitted,

/s/ Lawrence J. Fox

Lawrence J. Fox

Counsel of Record

George W. and Sadella D. Crawford

Visiting Lecturer in Law Yale Law School

127 Wall Street

New Haven, Connecticut 06511

(203) 432-9358

lawrence.fox@yale.edu