The trial court erred in failing to focus on the breakdown of the relationship between defendant and counsel when considering defendant’s motion to substitute counsel.  The defendant was left to “fend for himself.”  Even if counsel is competent, a serious breakdown in communications can result in an inadequate defense.[272]  The trial court’s suggestion that the defendant could raise the issue on appeal was “destructive of fundamental due process.  By incorrectly limiting the defendant’s arguments, the suggestion risks undermining the defendant’s rights on appeal and on retrial after an appeal.”[273]

 

          Under California law, the trial court must grant a motion to replace counsel "if the record clearly shows that the . . . appointed attorney is not providing adequate representation [citation] or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result [citations]."[274]  Relief will not be granted, however, where the defendant refused to cooperate with his attorney thereby creating the conflict in order to compel the court to remove the attorney.[275]

[272] United States v. Musa, 220 F.3d 1096, 1102  (9th Cir. 2000).

[273] United States v. Nguyen, 235 F.3d 1179, (9th Cir. 2001).

[274] People v. Crandell (1988) 46 Cal.3d 833, 854.

[275] People v. Michaels (2002) 28 Cal.4th 486.

APPEAL WAIVERS " POST CONVICTION RELIEF WAIVERS " DEFENSE COUNSEL HAS CONFLICT OF INTEREST COUNSELLING CLIENT CONCERNING WAIVER OF RIGHT TO HIS OR HER OWN EFFECTIVE ASSISTANCE
When federal plea agreements contain language that waives appeals and post-conviction challenges, defense counsel are put in a situation that could create a conflict of interest. Defense counsel would essentially need to advise defendants on a waiver of claims of ineffective assistance of counsel against themselves. Doing so would violate the Model Rules of Professional Conduct, as the defense counsel would likely not be able to provide competent representation regarding the effectiveness of their own representation. (ABA, Model Rules of Professional Conduct, Rule 4-1.7(b)(1)). Counsel in post-conviction proceedings can thus argue that the defendant was deprived of counsel with regard to that specific language of the plea agreement, thus invalidating only part of the plea agreement and preserving the rest. See Alan Ellis & Todd Bussert, Federal Sentencing: Stemming the Tide of Post-Conviction Waivers, http://www.alanellis.com/CM/Publications/Federal-Sentencing-Stemming-the-Tide-of-Post-Conviction-Waivers-ABA-Criminal-Justice.asp (2010).

Other

APPEAL WAIVERS " POST CONVICTION RELIEF WAIVERS " DEFENSE COUNSEL HAS CONFLICT OF INTEREST COUNSELLING CLIENT CONCERNING WAIVER OF RIGHT TO HIS OR HER OWN EFFECTIVE ASSISTANCE
When federal plea agreements contain language that waives appeals and post-conviction challenges, defense counsel are put in a situation that could create a conflict of interest. Defense counsel would essentially need to advise defendants on a waiver of claims of ineffective assistance of counsel against themselves. Doing so would violate the Model Rules of Professional Conduct, as the defense counsel would likely not be able to provide competent representation regarding the effectiveness of their own representation. (ABA, Model Rules of Professional Conduct, Rule 4-1.7(b)(1)). Counsel in post-conviction proceedings can thus argue that the defendant was deprived of counsel with regard to that specific language of the plea agreement, thus invalidating only part of the plea agreement and preserving the rest. See Alan Ellis & Todd Bussert, Federal Sentencing: Stemming the Tide of Post-Conviction Waivers, http://www.alanellis.com/CM/Publications/Federal-Sentencing-Stemming-the-Tide-of-Post-Conviction-Waivers-ABA-Criminal-Justice.asp (2010).