United States v. Gonzalez-Lopez

of Professional Conduct 4-4.2 (2003), which prohibits a lawyer “[i]n representing a client” from “communicat[ing] about the subject of the representation with a party . . . represented by another lawyer” without that lawyer’s consent. Low filed a motion to strike Fahle’s motion. The District Court granted Fahle’s motion to withdraw and granted a continuance so that respondent could find new representation. Respondent retained a local attorney, Karl Dickhaus, for the trial. The District Court then denied Low’s motion to strike and, for the first time, explained that it had denied Low’s motions for admission pro hoc vice primarily because, in a separate case before it, Low had violated Rule 4-4.2 by communicating with a represented party.

The case proceeded to trial, and Dickhaus represented respondent. Low again moved for admission and was again denied. The court also denied Dickhaus’s request to have Low at counsel table with him and ordered Low to sit in the audience and to have no contact with Dickhaus during the proceedings. To enforce the court’s order, a United States Marshal sat between Low and Dickhaus at trial. Respondent was unable to meet with Low throughout the trial, except for once on the last night. The jury found respondent guilty.

After trial, the District Court granted Fahle’s motion for sanctions against Low. It read Rule 4-4.2 to forbid Low’s contact with respondent without Fahle’s permission. It also reiterated that it had denied Low’s motions for admission on the ground that Low had violated the same Rule in a separate matter.

Respondent appealed, and the Eighth Circuit vacated the conviction. 399 F. 3d 924 (2005). The court first held that the District Court erred in interpreting Rule 4-4.2 to prohibit Low’s conduct both in this case and in the separate matter on which the District Court based its denials of his admission motions. The District Court’s denials of these motions were therefore erroneous and violated respondent’s

Sixth Amendment right to paid counsel of his choosing. See id., at 928-932 . The court then concluded that this Sixth Amendment violation was not subject to harmless-error review. See id., at 932-935 . We granted certiorari. 546 U. S. 1085 (2006).

The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence.” We have previously held that an element of this right is the right of a defendant who does not require appointed counsel to choose who will represent him. See Wheat v. United States, 486 U. S. 153 , 159 (1988). Cf. Powell v. Alabama, 287 U. S. 45 , 53 (1932) (“It is hardly necessary to say that, the right to counsel being conceded, a defendant should be afforded a fair opportunity to secure counsel of his own choice”). The Government here agrees, as it has previously, that “the Sixth Amendment guarantees a defendant the right to be represented by an otherwise qualified attorney whom that defendant can afford to hire, or who is willing to represent the defendant even though he is without funds.” Caplin & Drysdale, Chartered v. United States, 491 U. S. 617 , 624-625 (1989). To be sure, the right to counsel of choice “is circumscribed in several important respects.” Wheat, supra, at 159 . But the Government does not dispute the Eighth Circuit’s conclusion in this case that the District Court erroneously deprived respondent of his counsel of choice.

The Government contends, however, that the Sixth Amendment violation is not “complete” unless the defendant can show that substitute counsel was ineffective within the meaning of Strickland v. Washington, 466 U. S. 668 , 691-696 (1984)—i. e., that substitute counsel’s performance was deficient and the defendant was prejudiced by it. In the alternative, the Government contends that the defendant must at least demonstrate that his counsel of choice would have pursued a different strategy that would have created a “reason

meaning of the constitutional guarantee. See Wheat, 486 U. S., at 159 ; Andersen v. Treat, 172 U. S. 24 (1898). See generally W. Beaney, The Right to Counsel in American Courts 18-24, 27-33 (1955). Cf. Powell, supra, at 53 . Where the right to be assisted by counsel of one’s choice is wrongly denied, therefore, it is unnecessary to conduct an ineffectiveness or prejudice inquiry to establish a Sixth Amendment violation. Deprivation of the right is “complete” when the defendant is erroneously prevented from being represented by the lawyer he wants, regardless of the quality of the representation he received. To argue otherwise is to confuse the right to counsel of choice—which is the right to a particular lawyer regardless of comparative effectiveness—with the right to effective counsel—which imposes a baseline requirement of competence on whatever lawyer is chosen or appointed.

Ill

Having concluded, in light of the Government’s concession of erroneous deprivation, that the trial court violated respondent’s Sixth Amendment right to counsel of choice, we must consider whether this error is subject to review for harmlessness. In Arizona v. Fulminante, 499 U. S. 279 (1991), we divided constitutional errors into two classes. The first we called “trial error,” because the errors “occurred during presentation of the case to the jury” and their effect may “be quantitatively assessed in the context of other evidence presented in order to determine whether [they were] harmless beyond a reasonable doubt.” Id., at 307-308 (internal quotation marks omitted). These include “most constitutional errors.” Id., at 306 . The second class of constitutional error we called “structural defects.” These “defy analysis by ‘harmless-error’ standards” because they “affee[t] the framework within which the trial proceeds,” and are not “simply an error in the trial process itself.” Id., at

We have little trouble concluding that erroneous deprivation of the right to counsel of choice, “with consequences that are necessarily unquantifiable and indeterminate, unquestionably qualifies as ‘structural error.’ ” Id., at 282 . Different attorneys will pursue different strategies with regard to investigation and discovery, development of the theory of defense, selection of the jury, presentation of the witnesses, and style of witness examination and jury argument. And the choice of attorney will affect whether and on what terms the defendant cooperates with the prosecution, plea bargains, or decides instead to go to trial. In light of these myriad aspects of representation, the erroneous denial of counsel bears directly on the “framework within which the trial proceeds,” Fulminante, supra, at 310—or indeed on whether it proceeds at all. It is impossible to know what different choices the rejected counsel would have made, and then to quantify the impact of those different choices on the outcome of the proceedings. Many counseled decisions, including those involving plea bargains and cooperation with the government, do not even concern the conduct of the trial at all. Harmless-error analysis in such a context would be a speculative inquiry into what might have occurred in an alternate universe.

The Government acknowledges that the deprivation of choice of counsel pervades the entire trial, but points out that counsel’s ineffectiveness may also do so and yet we do not allow reversal of a conviction for that reason without a showing of prejudice. But the requirement of showing prejudice in ineffectiveness "claims stems from the very definition of the right at issue; it is not a matter of showing that the violation was harmless, but of showing that a violation of the right to effective representation occurred. A choice-of-counsel violation occurs whenever the defendant’s choice is wrongfully denied. Moreover, if and when counsel’s ineffectiveness “pervades” a trial, it does so (to the extent we can detect it) through identifiable mistakes. We can assess how

may a defendant insist on representation by a person who is not a member of the bar, or demand that a court honor his waiver of conflict-free representation. See Wheat, 486 U. S., at 159-160 . We have recognized a trial court’s wide latitude in balancing the right to counsel of choice against the needs of fairness, id., at 163-164 , and against the demands of its calendar, Morris v. Slappy, 461 U. S. 1 , 11-12 (1983). The court has, moreover, an “independent interest in ensuring that criminal trials are conducted within the ethical standards of the profession and that legal proceedings appear fair to all who observe them.” Wheat, supra, at 160 . None of these limitations on the right to choose one’s counsel is relevant here. This is not a case about a court’s power to enforce rules or adhere to practices that determine which attorneys may appear before it, or to make scheduling and other decisions that effectively exclude a defendant’s first choice of counsel. However broad a court’s discretion may be, the Government has conceded that the District Court here erred when it denied respondent his choice of counsel. Accepting that premise, we hold that the error violated respondent’s Sixth Amendment right to counsel of choice and that this violation is not subject to harmless-error analysis.

* * *

The judgment of the Court of Appeals is affirmed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

Justice Alito, with whom The Chief Justice, Justice Kennedy, and Justice Thomas join, dissenting.

I disagree with the Court’s conclusion that a criminal conviction must .automatically be reversed whenever a trial court errs in applying its rules regarding pro hac vice admissions and as a result prevents a defendant from being represented at trial by the defendant’s first-choice attorney. In

to be represented by counsel of choice. See Wheat, supra, at 159 .

The right to counsel of choice is also limited by conflict-of-interest rules. Even if a defendant is aware that his or her attorney of choice has a conflict, and even if the defendant is eager to waive any objection, the defendant has no constitutional right to be represented by that attorney. See 486 U. S., at 159-160 .

Similarly, the right to be represented by counsel of choice can be limited by mundane case-management considerations. If a trial judge schedules a trial to begin on a particular date and defendant’s counsel of choice is already committed for other trials until some time thereafter, the trial judge has discretion under appropriate circumstances to refuse to postpone the trial date and thereby, in effect, to force the defendant to forgo counsel of choice. See, e. g., Slappy, supra; United States v. Hughey, 147 F. 3d 423 , 428-431 (CA5 1998).

These limitations on the right to counsel of choice are tolerable because the focus of the right is the quality of the representation that the defendant receives, not the identity of the attorney who provides the representation. Limiting a defendant to those attorneys who are willing, available, and eligible to represent the defendant still leaves a defendant with a pool of attorneys to choose from—and, in most jurisdictions today, a large and diverse pool. Thus, these restrictions generally have no adverse effect on a defendant’s ability to secure the best assistance that the defendant’s circumstances permit.

Because the Sixth Amendment focuses on the quality of the assistance that counsel of choice would have provided, I would hold that the erroneous disqualification of counsel does not violate the Sixth Amendment unless the ruling diminishes the quality of assistance that the defendant would have otherwise received. This would not require a defendant to show that the second-choice attorney was constitutionally ineffective within the meaning of Strickland v. Washing

But even accepting, as the majority holds, that the erroneous disqualification of counsel of choice always violates the Sixth Amendment, it still would not follow that reversal is required in all cases. The Constitution, by its terms, does not mandate any particular remedy for violations of its own provisions. Instead, we are bound in this case by Federal Rule of Criminal Procedure 52(a), which instructs federal courts to “disregar[d]” “[a]ny error ... which does not affect substantial rights.” See also 28 U. S. C. §2111 ; Chapman v. California, 386 U. S. 18 , 22 (1967). The only exceptions we have recognized to this rule have been for “a limited class of fundamental constitutional errors that ‘defy analysis by “harmless error” standards.’ ” Neder v. United States, 527 U. S. 1 , 7 (1999) (quoting Arizona v. Fulminante, 499 U. S. 279 , 309 (1991)); see also Chapman, supra, at 23 . “Such errors . . . ‘necessarily render a trial fundamentally unfair’ [and] deprive defendants of ‘basic protections’ without which ‘a criminal trial cannot reliably serve its function as a vehicle

for determination of guilt or innocence . . . and no criminal punishment may be regarded as fundamentally fair.’” Neder, supra, at 8-9 (quoting Rose v. Clark, 478 U. S. 570 , 577-578 (1986); second omission in original); see also ante, at 149 (listing such errors).

Thus, in Neder, we rejected the argument that the omission of an element of a crime in a jury instruction “necessarily render[s] a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence.” 527 U. S., at 9 . In fact, in that case, “quite the opposite [was] true: Neder was tried before an impartial judge, under the correct standard of proof and with the assistance of counsel; a fairly selected, impartial jury was instructed to consider all of the evidence and argument in respect to Neder’s defense . . . .” Ibid.

Neder’s situation—with an impartial judge, the correct standard of proof, assistance of counsel, and a fair jury—is much like respondent’s. Fundamental unfairness does not inexorably follow from the denial of first-choice counsel. The “decision to retain a particular lawyer” is “often uninformed,” Cuyler v. Sullivan, 446 U. S. 335 , 344 (1980); a defendant’s second-choice lawyer may thus turn out to be better than the defendant’s first-choice lawyer. More often, a defendant’s first- and second-choice lawyers may be simply indistinguishable. These possibilities would not justify violating the right to choice of counsel, but they do make me hard put to characterize the violation as “always rendering] a trial unfair,” Neder, supra, at 9. Fairness may not limit the right, see ante, at 145, but it does inform the remedy.

Nor is it always or nearly always impossible to determine whether the first choice would have provided better representation than the second choice. There are undoubtedly cases in which the prosecution would have little difficulty showing that the second-choice attorney was better qualified than or at least as qualified as the defendant’s initial choice,

and there are other cases in which it will be evident to the trial judge that any difference in ability or strategy could not have possibly affected the outcome of the trial.

Requiring a defendant to fall back on a second-choice attorney is not comparable to denying a defendant the right to be represented by counsel at all. Refusing to permit a defendant to receive the assistance of any counsel is the epitome of fundamental unfairness, and as far as the effect on the outcome is concerned, it is much more difficult to assess the effect of a complete denial of counsel than it is to assess the effect of merely preventing representation by the defendant’s first-choice attorney. To be sure, when the effect of an erroneous disqualification is hard to gauge, the prosecution will be unable to meet its burden of showing that the error was harmless beyond a reasonable doubt. But that does not justify eliminating the possibility of showing harmless error in all cases.

The majority’s focus on the “trial error’’/“structural defect” dichotomy is misleading. In Fulminante, we used these terms to denote two poles of constitutional error that had appeared in prior cases; trial errors always lead to harmless-error review, while structural defects always lead to automatic reversal. See 499 U. S., at 306-310 . We did not suggest that trial errors are the only sorts of errors amenable to harmless-error review, or that all errors “affecting the framework within which the trial proceeds,” id., at 310 , are structural. The touchstone of structural error is fundamental unfairness and unreliability. Automatic reversal is strong medicine that should be reserved for constitutional errors that “always” or “necessarily,” Neder, supra, at 9 (emphasis in original), produce such unfairness.

Ill

Either of the two courses outlined above—requiring at least some showing of prejudice, or engaging in harmless-

error review—would avoid the anomalous and unjustifiable consequences that follow from the majority’s two-part rule of error without prejudice followed by automatic reversal.

Under the majority’s holding, a defendant who is erroneously required to go to trial with a second-choice attorney is automatically entitled to a new trial even if this attorney performed brilliantly. By contrast, a defendant whose attorney was ineffective in the constitutional sense (i. e., “made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed ... by the Sixth Amendment,” Strickland, 466 U. S., at 687) cannot obtain relief without showing prejudice.

Under the majority’s holding, a trial court may adopt rules severely restricting pro hoc vice admissions, cf. Leis v. Flynt, 439 U. S. 438 , 443 (1979) (per curiam), but if it adopts a generous rule and then errs in interpreting or applying it, the error automatically requires reversal of any conviction, regardless of whether the erroneous ruling had any effect on the defendant.

Under the majority’s holding, some defendants will be awarded new trials even though it is clear that the erroneous disqualification of their first-choice counsel did not prejudice them in the least. Suppose, for example, that a defendant is initially represented by an attorney who previously represented the defendant in civil matters and who has little criminal experience. Suppose that this attorney is erroneously disqualified and that the defendant is then able to secure the services of a nationally acclaimed and highly experienced criminal defense attorney who secures a surprisingly favorable result at trial—for instance, acquittal on most but not all counts. Under the majority’s holding, the trial court’s erroneous ruling automatically means that the Sixth Amendment was violated—even if the defendant makes no attempt to argue that the disqualified attorney would have done a better job. In fact, the defendant would still be entitled to

a new trial on the counts of conviction even if the defendant publicly proclaimed after the verdict that the second attorney had provided better representation than any other attorney in the country could have possibly done.

Cases as stark as the above hypothetical are unlikely, but there are certainly cases in which the erroneous disqualification of a defendant’s first-choice counsel neither seriously upsets the defendant’s preferences nor impairs the defendant’s representation at trial. As noted above, a defendant’s second-choice lawyer may sometimes be better than the defendant’s first-choice lawyer. Defendants who retain counsel are frequently forced to choose among attorneys whom they do not know and about whom they have limited information, and thus a defendant may not have a strong preference for any one of the candidates. In addition, if all of the attorneys considered charge roughly comparable fees, they may also be roughly comparable in experience and ability. Under these circumstances, the erroneous disqualification of a defendant’s first-choice attorney may simply mean that the defendant will be represented by an attorney whom the defendant very nearly chose initially and who is able to provide representation that is just as good as that which would have been furnished by the disqualified attorney. In light of these realities, mandating reversal without even a minimal showing of prejudice on the part of the defendant is unwarranted.

The consequences of the majority’s holding are particularly severe in the federal system and in other court systems that do not allow a defendant to take an interlocutory appeal when counsel is disqualified. See Flanagan v. United States, 465 U. S. 259 , 260 (1984). Under such systems, appellate review typically occurs after the defendant has been tried and convicted. At that point, if an appellate court concludes that the trial judge made a marginally incorrect ruling in applying its own pro hac vice rules, the appellate court

has no alternative but to order a new trial—even if there is not even any claim of prejudice. The Sixth Amendment does not require such results.

Because I believe that some showing of prejudice is required to establish a violation of the Sixth Amendment, I would vacate and remand to let the Court of Appeals determine whether there was prejudice. However, assuming for the sake of argument that no prejudice is required, I believe that such a violation, like most constitutional violations, is amenable to harmless-error review. Our statutes demand it, and our precedents do not bar it. I would then vacate and remand to let the Court of Appeals determine whether the error was harmless in this case.