4.6Substitution or Withdrawal of Counsel

An attorney who has entered an appearance in a criminal case “may withdraw from the action or be substituted for only on order of the court.” MCR 2.117(C)(2).¹ “In appointed cases, substituted counsel shall file an appearance with the court after receiving the assignment from the appointing authority.” MCR 2.117(C)(3).

“[A] trial court may only sua sponte remove and substitute appointed counsel for gross incompetence, physical incapacity, or contumacious conduct.” People v Bailey, 330 Mich App 41, 54 (2019) (quotation marks and citations omitted) (questioning this rule in the context of cases involving appointed counsel, not retained counsel, but indicating that because “this distinction is neither recognized nor addressed” in the cases that have made this holding, the rule of stare decisis bound the Court of Appeals to their holdings).

MRPC 1.16 outlines situations when an attorney must or may move to withdraw as counsel. However, “[w]hen ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation.” MRPC 1.16(c).

“‘A defendant is only entitled to a substitution of appointed counsel when discharge of the first attorney is for “good cause” and does not disrupt the judicial process.’ People v O’Brien, 89 Mich App 704, 708 (1979) (quotation marks and citation omitted). The circumstances that would justify good cause rest on the individual facts in each case.” People v Buie (On Remand) (Buie IV), 298 Mich App 50, 67 (2012).

While an indigent defendant is entitled to have counsel appointed at public expense, he or she is not entitled to choose the lawyer. People v Ginther, 390 Mich 436, 441 (1973). “When a defendant asserts that his assigned lawyer is not adequate or diligent or asserts[] . . . that [the] lawyer is disinterested, the judge should hear [the defendant’s] claim and, if there is a factual dispute, take testimony and state [its] findings and conclusion.” Id.

“The replacement of court-appointed counsel might violate a defendant’s Sixth Amendment right to adequate representation or his Fourteenth Amendment right to due process if the replacement prejudices the defendant–e.g., if a court replaced a defendant’s lawyer hours before trial or arbitrarily removed a skilled lawyer and replaced him with an unskilled one.” Bailey, 330 Mich App at 57 (quotation marks and citation omitted) (“the trial court erroneously substituted [appointed] counsel” where “no evidence was presented to the trial court supporting the notion that defense counsel erroneously urged [the defendant] to plead guilty or that any actual conflict existed,” therefore, “appointed counsel’s conduct did not rise to the level of gross incompetence”; however, the defendant was not entitled to relief because he “was never without representation,” and “the trial court’s substitution of counsel did not amount to plain error affecting [the defendant’s] substantial rights”).

A defendant does not have an absolute right to be represented at sentencing by the same attorney who represented him or her at trial. People v Evans, 156 Mich App 68, 70 (1986). But see MCL 780.991(2)(d), requiring representation by “[t]he same [appointed] defense counsel . . . at every court appearance throughout the pendency of the case,” with the permissible exception of “ministerial, nonsubstantive tasks, and hearings.”²

A.Good Cause

What constitutes good cause for substitution of counsel depends on the facts and circumstances of each case. Buie IV, 298 Mich App at 67.

Case finding good cause:

•People v Jones (Edward), 168 Mich App 191, 194 (1988), superseded by statute on other grounds (a valid and reasonable disagreement between counsel and the defendant regarding a fundamental trial tactic (such as whether to call alibi witnesses) satisfies the good cause requirement), citing People v Williams (Charles), 386 Mich 565, 578 (1972).

Cases finding no good cause:

•Buie IV, 298 Mich App at 66-70 (although the defendant and defense counsel did not have a “completely amicable relationship,” the trial court did not abuse its discretion “when it did not either appoint substitute counsel or hold an evidentiary hearing when [the] defendant sought substitute counsel” because “the record [did] not show that [defense counsel] was in fact inattentive to [the defendant’s] responsibilities, inadequate, or disinterested” (internal quotations and citations omitted)).

•People v Strickland, 293 Mich App 393, 397-399 (2011) (“[a] mere allegation that a defendant lacks confidence in his or her attorney, unsupported by a substantial reason,” or “a defendant’s general unhappiness with counsel’s representation is insufficient” to establish good cause, and the defendant did not establish good cause where counsel’s testimony refuted the defendant’s “lack-of-contact claim” and where the defendant’s “remaining complaints lacked specificity and did not involve a difference of opinion with regard to a fundamental trial tactic[]”).

•People v Traylor, 245 Mich App 460, 463 (2001) (good cause was not established where the defendant claimed (1) no contact by the attorney but refused to take advantage of alternative arrangements to make contact easier, (2) the attorney did not file certain pretrial motions that were ultimately deemed frivolous, and (3) that filing a grievance automatically created good cause for substitution of counsel without providing legal authority to support the claim).

B.Procedure

A trial court is obligated to take testimony and make findings of fact when a factual dispute exists with regard to a defendant’s assertion that his or her assigned attorney “is not adequate or diligent or . . . is disinterested[.]” Ginther, 390 Mich at 441-442. However, “[a] judge’s failure to explore a defendant’s claim that his [or her] assigned lawyer should be replaced does not necessarily require that a conviction following such error be set aside.” Id. at 442 (holding that such failure did not require the setting aside of the defendant’s conviction where “the record [did] not show that the lawyer assigned to represent [the defendant] was in fact inattentive to his responsibilities[]”). Although “the trial court must elicit testimony from the attorney and the defendant in order to assess any issues of fact[,]” a full adversarial proceeding is not required. People v Ceteways, 156 Mich App 108, 119 (1986).

C.Standard of Review

The trial court’s decision on a request for substitution of counsel is reviewed for an abuse of discretion. Traylor, 245 Mich App at 462.

The trial court’s decision on a motion for a continuance to retain new counsel is reviewed for an abuse of discretion. Akins, 259 Mich App at 556.