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Ely
Ely, Counselor at Law
Category: Criminal Law
Satisfied Customers: 3123
Experience:  Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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I have gone to Alternative Council for my Appeal and over

Customer Question

I have gone to Alternative Council for my Appeal and over and over in have been told - I have to have current lawyers ( Public Defender ) permission to replace them. What do I do now?
Submitted: 8 months ago.
Category: Criminal Law
Expert:  Colleen Grady replied 8 months ago.

Hello. I will help you today. I have been an attorney for 27 years. I am reviewing your question and will be back to you shortly.

Expert:  Colleen Grady replied 8 months ago.

What county and what court is this in Colorado? I have to look at the rules and need to know this.

Customer: replied 8 months ago.
Jefferson County, Colorado. I sent this to you because we have spoken on this subject before
Expert:  Colleen Grady replied 8 months ago.

I remember speaking with you but I can't find my prior response to you.

Expert:  Colleen Grady replied 8 months ago.

When did we communicate last?

Expert:  Colleen Grady replied 8 months ago.

I know I referred you to the office of Alternative Counsel

Expert:  Colleen Grady replied 8 months ago.

Does you appeal involve an issue of ineffective assistance of counsel by the public defender?

Expert:  Colleen Grady replied 8 months ago.

To replace a public defender with an attorney from the Alternative Council office, your public defender would have to make a motion to withdraw from your case because there is a conflict of interest in representing you. If you are filing a claim that there was "ineffective assistance of counsel" then there would be a conflict in having your current public defender represent you on appeal. The public defender would have to state this for the reason in the motion. Basically, the public defender would have a conflict of interest in stating that he or she did a bad job defending you. Therefore, you need a new "conflict free" attorney who could bring a claim of ineffective assistance of the public defender in your criminal defense.

Here is the law:

21-2-103. Representation of indigent persons.

(1) On and after January 1, 1997, the office of alternate defense counsel shall provide legal representation in the following circumstances:

(a) Cases involving conflicts of interest for the state public defender as determined pursuant to subsection (1.5) of this section.

(b) (Deleted by amendment, L. 2000, p. 1479, § 2, effective August 2, 2000.) (1.5)

(a) To request withdrawal from a case due to a conflict of interest, the state public defender shall submit to the court having jurisdiction over the case a motion specifically describing the nature of the conflict of interest. If the state public defender determines that ethical obligations prevent a specific description of the nature of the conflict of interest, the state public defender shall cite any applicable legal authority for the determination, and the portion of the motion that specifically describes the nature of the conflict shall be sealed. In the event an issue arises later concerning whether an actual conflict existed, the sealed portion of the motion may be opened and examined by the original judge or by another judge if necessary to prevent the violation of an ethical obligation.

(b) Upon review of the motion, the court shall determine whether a conflict of interest exists that would require withdrawal of the state public defender and appointment of the alternate defense counsel.

(c) For purposes of this article, a "conflict of interest" may include, but need not be limited to, circumstances in which the state public defender represents a codefendant or a person who is a witness in the case or other circumstances identified in the Colorado rules of professional conduct or other rules of civil procedure as creating a conflict of interest. Case overload, lack of resources, and other similar circumstances shall not constitute a "conflict of interest".

(d) If the court allows withdrawal of the state public defender and appoints the alternate defense counsel and it is later determined that no genuine conflict of interest existed, the office of the state public defender shall reimburse the office of the alternate defense counsel for the cost of the representation.