What Are Your Rights to Counsel?

Posted on April 19th, 2012 | No Comments

Most people are familiar with the line “if you cannot afford an attorney, one will be provided for  you.”  We’ve all heard this part of the Miranda rights in every “Law and Order” episode ever, as a suspected criminal is being arrested.  Some people are even familiar with the Amendment of the U.S. Constitution from which that line actually comes.  It’s in the Sixth Amendment of the Constitution, the Amendment that focuses primarily on criminal prosecutions and citizens’ rights during them.  In this portion of the Amendment it reads, “In all criminal prosecutions, the accused shall enjoy the right….to have the Assistance of Counsel for his defence.”

However, you might not know that there are five different, distinct rights that fall under the umbrella of “right to counsel.”  Specifically those are:

1. The right to counsel of choice: is pretty self-explanatory.  It clearly states that a person has the right to choose the type of counsel they want to represent them.  These decisions can be and usually are based entirely on the defendant’s own beliefs, feelings, and thoughts.
2. The right of appointed counsel: this right comes into play when a defendant doesn’t have financial or other means in which they need to retain counsel of their choice.  So the defendant is appointed counsel by the government, at the government’s expense.
3. The right to represent oneself (also known as Pro se representation): Many lawyers and legal scholars would agree that, though this right is very important to add into the “right to counsel” clause, it isn’t always the best form of defense.  Even if a lawyer is on trial themself, he or she most likely will retain counsel to represent them.  This could most likely be explained in part by the fact that the more legal experience you have working on your case, the better the arguments are going to be on your behalf, and the better off your chances are of a more positive outcome in the end.
4. The right to conflict-free counsel: means that any and every defendant has the right (whether or not the counsel is appointed) to being represented by someone without a conflict of interest.
5. The right to effective assistance counsel: was put in place to protect defendants from poor counsel.  It means that defendants have the right to change counsel if they feel that their current counsel’s performance is negatively affecting their case.

The reason these rights are so important, that they were included in an Amendment to the U.S. Constitution, is because before those rights were written into law they did not exist.  And so, people were brought to courts, often times not understanding the legalese, the proceedings, even the rights they did have, and were poorly represented, if represented at all.  The right to counsel is extremely important to the U.S. justice system.  It helps to ensure that each person gets a fair trial.