U.S. vs. Rivera-Corona, No. 08-30286 (8-18-10) (Berzon with Tashima; concurrence by Fisher). Defendant has retained counsel. The retainer is depleted, and now the defendant wishes to change counsel -- and asks the court to appoint counsel. What is the standard? This issue is a recurring one, and yet there is sparse precedent on it. That changes with this opinion. Here, the defendant retained counsel on a firearms charge. He pled guilty, but as sentencing approached, told the court that he wanted an appointed lawyer. He complained that the retained counsel demanded $5,000 more to go to trial, and that the defendant had pled guilty because of the counsel's pressure. The district court did not inquire into the defendant's financial state and denied the request. The court reasoned that it was at a late stage, and the defendant had said that he was satisfied with counsel at the change of plea. On appeal, the 9th identified two Constitutional rights under the Sixth Amendment: the right to have counsel and the right to effective counsel. The right to retain counsel is close to absolute (counsel must be a lawyer and timing). Did the request for appointed counsel constitute such an election? The 9th thought so, rejecting a "good cause" requirement. The court should only inquire into the financial status of the defendant, whether he qualifies for appointed counsel, and timeliness. There is no need to inquire into whether there was such conflict between counsel and defendant that effective representation required new appointed counsel. The 9th reasoned that forcing an unpaid lawyer, who did not want to be on the case, could lead to conscious or subconscious resentment and undermine representation. This standard is reached by the 9th looking at the two decisions dealing with this issue, Bland and Schell, although in the context of habeas. The 9th parsed Schell's en banc overruling of Bland as going to the standard of review on habeas for substitution of counsel, leaving in force Bland's holding that the choice to go from retained to appointed was not under a "good cause" standard. The 9th vacated and remanded for inquiry into qualification for appointed counsel and for fact-finding if the defendant moved to withdraw from the plea. Concurring, Fisher argued that the 9th was not writing on a clean slate, but rather was bound by Schell, and its holding for a finding of "good cause." It was a Schell game to distinguish Bland. Schell went en banc to overturn Bland, and it could not be limited to "only in habeas." Fisher concurs because the district court failed to fully inquire into the need for new counsel and the conflict.

This is a significant case for retained counsel and CJA appointments. Retained counsel sometimes deplete the retainer, and the whole issue of whether CJA can and should be appointed is raised. This opinion seems to make clear that the court only should inquire into the financial status of the defendant, whether the status qualifies for appointed counsel, and the timeliness. The court cannot require a conflict or issues with representation.