By Anthony Geddes

The constitutional right to counsel in a criminal case is one of the foundations of a properly functioning criminal justice system. The fair administration of justice requires both the government and defense to have properly trained and equally skilled advocates who have the resources they need to ensure that our adversarial system functions properly.

Idaho can take pride in the fact that it recognized the right to counsel before it even became a state, and nearly a century before the United States Supreme Court recognized the Sixth Amendment right to counsel in Gideon v. Wainwright.[1]  Idaho’s 2^nd Territorial Legislature met in Lewiston in November of 1864, approximately 6 months after the end of the American Civil War and is likely more famous for the fight over whether Idaho’s Territorial capital should be Lewiston or Boise, rather than any recognition of the right to counsel. However, while they didn’t mandate that an accused be provided with an attorney at public expense, as Gideon later required, they did articulate the right to be represented by an attorney at trial.[2]

Later, in 1923, Idaho further enhanced this principle when Idaho’s Supreme Court stated, “It is the public policy of this state, disclosed by constitutional guaranties as well as by numerous provisions of the statutes, to accord to every person accused of crime, not only a fair and impartial trial, but every reasonable opportunity to prepare his defense and to vindicate his innocence upon a trial. In the case of indigent persons accused of crime the court must assign counsel to the defense at public expense and, upon proper showing, the mileage and fees of the defendant’s witnesses must be ordered paid by the county in all cases.”[3]

While Idaho has a rich history of articulating and protecting the right of the accused to counsel, and the State Public Defender (SPD) takes this right to counsel and the right to conflict-free counsel seriously, this right is not without limit.

The Sixth Amendment to the United States Constitution guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right to…have the Assistance of Counsel for his defence.”[4] The Idaho Constitution similarly guarantees that “[i]n all criminal prosecutions, the party accused shall have the right…to appear and defend in person and with counsel.”[5] The right to counsel in criminal cases prevents indigent individuals from being subjected to potential or actual incarceration by the government unless they receive or are offered—or knowingly and intelligently waive—appointed counsel.[6] The Sixth Amendment right to counsel within the U.S. Constitution is coextensive with the right to counsel guaranteed by section 13, article I of the Idaho Constitution.[7]

The SPD—which was established by the Idaho Legislature in 2023—manages all public defense across the state of Idaho. When the SPD is appointed to represent a client but has a conflict, the SPD sends the client’s case (or cases) to the Alternate Counsel Division (ACD). The ACD is managed by its own director, has its own staff, and is ethically walled off from the SPD. The ACD finds and assigns private attorneys to represent clients in cases where the SPD has a conflict. Once a case is assigned by the ACD, the assigned attorney takes over representation of the client.

The most common reason for an SPD conflict is when there are co-defendants charged with the same or similar criminal conduct in a case. Because the SPD can only represent one person who was charged, any remaining clients are sent to the ACD for the assignment of qualified counsel. Another common reason for a conflict is when the SPD currently represents a complaining witness. These two types of conflicts are the most obvious and common conflicts the SPD encounters, but others arise periodically. Evaluation of whether a conflict prevents the SPD from representing a client is statutorily vested with the SPD,[8] but because the right to counsel is also constitutionally guaranteed, trial courts may also have an independent obligation to assess potential conflicts.

Right to Conflict-Free Appointed Counsel, but not Counsel of Choice

In cases where there is a clear conflict of interest that prevents the SPD from representing a client, the SPD sends the case to the ACD to find and assign conflict-free counsel. The ACD is mindful of and evaluates potential conflicts much the same way as the SPD to ensure that counsel assigned to represent a client does not have a conflict of interest. In cases where the SPD or the ACD has evaluated a client’s case and determined there is not conflict with the assigned attorney, neither the SPD nor the ACD will assign substitute counsel. However, because the right to conflict-free counsel is constitutionally guaranteed, the trial court may still be asked to conduct its own conflict inquiry in situations where a client maintains a conflict exists.

            It is important to remember that while the constitutional right to counsel includes the right to conflict-free counsel,[9] it does not entitle a client to counsel of their choosing or give the client the right to “fire” assigned counsel.[10] Though a client generally has the right to discharge or fire privately retained counsel at any time, a client does not have the same right with respect to appointed counsel.[11]

            When a trial court knows or reasonably should know that a potential conflict exists, it must inquire into the potential conflict and ensure a client receives conflict-free counsel.[12] Potential conflicts are usually brought to the court’s attention by the client, though sometimes they are raised by assigned counsel filing a motion to withdraw. The court engaging in a conflict inquiry can rely on counsel’s representations regarding the potential conflict but may also conduct its own inquiry to decide whether a conflict exists, relying on the standards contained in Idaho Rules of Professional Conduct (IRPC).[13]

            A conflict of interest that would preclude representation under the Sixth Amendment includes situations where: counsel’s representation of one client is directly adverse to another client; where counsel’s representation will be materially limited by counsel’s responsibility to a former client, third person(s), or counsel’s own personal interests; or where counsel’s conflict adversely affects his or her performance.[14]

It is not unusual for clients to confuse the right to counsel with the right to counsel of their choosing, believing dissatisfaction with assigned counsel is a conflict that entitles them to a different attorney. While the Sixth Amendment guarantees the right to conflict-free counsel, it does not “guarantee” a ‘meaningful relationship’ between an accused and his counsel.”[15] Sometimes clients refuse to cooperate with their assigned counsel for a variety of reasons unrelated to the attorney’s qualifications or competency. Idaho and federal courts have made it clear that a client cannot “manufacture good cause by abusive or uncooperative behavior.”[16] A client’s lack of confidence in an otherwise competent attorney is not grounds for a trial court to assign a new attorney unless extraordinary circumstances require a new attorney be assigned.[17]

            Prior to June 30, 2013, indigent clients in criminal cases had a statutory right to ask for substitute counsel under Idaho Code § 19-856. Under that provision, the court could, in its discretion, grant a defendant’s request for substitute counsel if the defendant could show good cause to support the request.[18] The court had to “afford a defendant a full and fair opportunity to present the facts and reasons in support of a motion for substitution of counsel after having been made aware of the problems involved.”[19] Good cause was a high burden to meet and included “an actual conflict of interest; a complete, irrevocable breakdown of communication; or an irreconcilable conflict which leads to an apparently unjust verdict.”[20]  When the alleged conflict involved a breakdown in communication, trial courts had to examine certain facts to determine if a client was entitled to substitute counsel.

            Factors to be used in examining constitutional implications of a total breakdown in communication included: (1) whether the defendant’s motion for new counsel was timely; (2) whether the trial court adequately inquired into defendant’s reasons for making the motion; (3) whether the defendant-attorney conflict was so great that it led to a total lack of communication precluding an adequate defense; and (4) whether the defendant substantially and unreasonably contributed to the communication breakdown.[21]

            Although the Idaho Legislature repealed Idaho Code § 19-856 in 2013, the Idaho Court of Appeals acknowledged just this year, that a client may still ask the trial court to appoint substitute counsel in a criminal case.[22] In Reeder, the Court of Appeals held that a trial court cannot grant a request for substitute counsel unless it finds good cause supports the request. The Reeder Court’s good cause analysis is the same as what was considered in Idaho Code § 19-856, and includes actual conflicts of interest, a complete and irrevocable breakdown of communication, or an irreconcilable conflict which leads to an apparently unjust verdict.[23] The Reeder court confirmed good cause could not be manufactured by a client’s engagement in abusive or noncooperative behavior, and a client’s lack of confidence in an otherwise competent attorney is not good cause to appoint new counsel absent extraordinary circumstances.[24] Even when a rift between counsel and the client is intense, if it does not result in lack of communication preventing an adequate defense, good cause to appoint substitute counsel does not exist.[25] The Reeder Court also recognizes that whether to grant or deny a client’s request for substitute counsel is a discretionary decision that must be supported by the record.[26]

            If a trial court conducts a conflict inquiry and decides a conflict exists that prevents the assigned attorney from representing the client, the trial court will issue an order removing prior counsel or permitting prior counsel to withdraw and order the appointment of counsel. The SPD and ACD follow the court’s orders even if they disagree with the court’s analysis or decision and assign new counsel to represent the client.

Allocation of Decision-Making Authority in Criminal Cases

In addition to misunderstandings about the right to choose counsel, clients sometimes do not understand the decisions an attorney makes in a criminal case and the decisions that are reserved for the client. Often, clients believe they are not being zealously represented if their attorney declines to pursue the client’s preferred defense, call certain witnesses to testify, or consult with or retain certain experts. The IRPC explain the allocation of decision-making authority between a client and counsel in a criminal case. While the client decides the objectives or goals of representation (i.e., whether to go to trial, and to testify, or seek a plea agreement, etc.[27]), the client does not control the means—or how—those goals or objectives are achieved.[28] Instead, strategy decisions about how the goals of representation are achieved are made by counsel.

            Unfortunately, the only way a client can control the strategy and means of achieving his or her objectives in a criminal case is through self-representation. Neither the SPD nor the ACD believe a client should opt for self-representation over representation by counsel. However, if a client insists on pursuing their chosen strategies and rejecting the advice of counsel, the client runs the risk that self-representation may be the only option.

Hybrid Representation/Waiver or Forfeiture of Counsel

Sometimes a client’s wishes regarding representation are unclear. Late last year, the Idaho Supreme Court found itself addressing this very circumstance where the trial court was faced with a client whose desire for appointed counsel or self-representation varied depending on the hearing. In State v. Knight,[29] the defendant was charged with three counts of unlawful possession of a firearm. He repeatedly told the trial court that he could not afford to hire counsel, he did not want to be represented by a lawyer but wanted the assistance of counsel. At the same time, the defendant rejected the trial court’s characterization that he was representing himself. The defendant was unrepresented throughout the pretrial stages of the case, but right before trial, the court appointed a public defender to act as “shadow counsel” to assist the defendant during jury selection and at trial. At trial the public defender’s involvement was limited to explaining some of the court’s statements to the defendant, showing the defendant the State’s exhibits on his laptop, clarifying the defendant’s concerns about jury instruction, clarifying the scope of the defendant’s witness’s testimony, and orally moving to dismiss at the close of the State’s case-in-chief.

            The defendant was convicted of all three counts of unlawful possession of a firearm and argued on appeal that the trial court violated his Sixth Amendment right to counsel by failing to address whether he knowingly, intelligently, and voluntarily waived his right to counsel. The Idaho Supreme Court agreed that while a defendant has a constitutional right to counsel and a constitutional right to proceed pro se, the defendant can only proceed pro se if he does so knowingly, voluntarily, and intelligently, with awareness of the risks and problems inherent in self-representation.[30] To that end, a trial judge must engage a defendant in a colloquy ensuring the defendant understands what self-representation means, applying the standards for waiver of the Sixth Amendment right to counsel established by the United States Supreme Court in Faretta v. California, 422 U.S. 806 (1975).

            The Court also clarified that the Sixth Amendment right to representation by counsel “means representation by an attorney” but not “a right to ‘shadow counsel’ who does as little or as much as the defendant wishes.”[31] The Court reduced a defendant’s Sixth Amendment right to a binary choice; a defendant may either “apply for a public defender and be appointed an attorney who would mange his defense, or he could represent himself.”[32] A client does “not have a right to the services of an attorney who would do ‘as little or as much’ as [the client] want[s]. That is not how attorneys represent clients.”[33] Essentially, a client is “not entitled to invoke a right to counsel and yet call the shots at trial.”[34] The Court also acknowledged that in certain circumstances, a waiver of counsel is not required because a defendant, by his or her conduct, has either impliedly waived or forfeited the right to counsel.[35]

            Chief Justice Bevan addressed waiver and forfeiture of counsel, recognizing that a defendant who is given clear warnings about the consequences of failing to cooperate with counsel, or the consequences of engaging in obstructive or dilatory conduct and refusal to cooperate with counsel, may impliedly or functionally waive the right to counsel.[36] Before reaching that conclusion, however, “the trial court must take an active role in clarifying expectations when a defendant persistently refuses to give a straight answer about the right to be represented by counsel. In my view, trial courts can and should pause the proceeding, clarify the binary choice between representation and self-representation, and document on the record that the defendant understands that no third option exists.”[37]

Conclusion

Trial judges should evaluate any requests for the withdrawal of counsel or for substitute counsel by applying the good cause standard, and advise indigent clients that they are not entitled to a choice of counsel, to “fire” assigned counsel, or demand the withdrawal of assigned counsel. Judges should also explain the allocation of decision-making authority in criminal cases and advise clients seeking new counsel that the alternative to their assigned counsel’s representation may be self-representation, not the appointment of new counsel.

            The creation of Idaho’s State Public Defender and its Alternate Counsel Division has centralized the delivery of indigent defense while providing a structured mechanism for addressing genuine conflicts of interest. That system, however, depends upon courts carefully applying the constitutional and ethical standards governing substitution of counsel. Allowing defendants to demand the withdrawal of their conflict counsel without finding good cause places significant strain on the limited pool of qualified private attorneys willing to accept conflict appointments, increases costs to the State Public Defender, delays criminal proceedings, burdens the court and consumes scarce resources. Ultimately, unnecessary substitutions can undermine the very interests the Sixth Amendment seeks to protect by delaying the prompt and effective resolution of criminal cases.

            Courts should also advise defendants that appointed counsel cannot be discharged at will and that, absent good cause for substitution, the practical alternative may be continued representation by exiting counsel, or if the constitutional requirements are satisfied, self-representation. By consistently applying these principles, Idaho court can safeguard the constitutional right to conflict-free counsel while preserving the integrity, efficiency, and sustainability of the system.

Anthony Geddes is the District Public Defender for the Fourth Judicial District for the State Public Defender’s Office. Tony is a trial attorney with three decades of experience in public defense. He joined the Ada County Public Defender’s Office in 1995 as an investigator. He became an attorney with the office in 1997 and became Ada’s Chief Public Defender in 2016. Tony was appointed to his current position in the fall of 2024. Tony received his Bachelor of Science from Andrews University and later earned a Juris Doctor from Vermont Law School. Tony is qualified as lead counsel in Death Penalty cases and has been lead counsel or co-counsel in numerous high profile criminal trials, including 19 homicide cases.

[1] Gideon v. Wainwright,372 U.S. 335 (1963).

[2] Idaho Terr. Stat. 1887. Tit. VI. Ch. 1. § 7721.

[3] State v. Montroy, 37 Idaho 684, 690 (1923).

[4] U.S. CONST. amend. VI.

[5] IDAHO CONST. art. I, § 13.

[6] Alabama v. Shelton, 535 U.S. 654, 657 (2002) (holding the right to counsel attaches where an indigent defendant in a criminal case faces a potential jail or prison sentence, even if not initially imposed); see also Iowa v. Tovar, 541 U.S. 77. 78 (2004) (recognizing that an indigent defendant who faces incarceration is entitled to counsel under the Sixth Amendment at all critical stages of the criminal process); Gideon,372 U.S. 335.

[7] Creech v. State, 543 P.3d 494, 500 (2024) (“[T]his Court has never varied from equating the rights preserved under the Idaho Constitution with the rights guaranteed under the Sixth Amendment.”)

[8] Idaho Code § 19-6020

[9] Wood v. Georgia, 450 U.S. 261, 271 (1981); State v. Severson, 147 Idaho 694, 703 (2009).

[10] See, e.g., Wheat v. United States, 486 U.S. 153, 159 (1988) (“[A] defendant may not insist on representation by an attorney he cannot afford or who for other reasons declines to represent the defendant.”); State v. Clayton, 100 Idaho 896, 897 (1980)(“The right to counsel includes the right to effective assistance of counsel. It does not necessarily include the right to counsel of one’s own choosing.” (citations omitted)); State v. Peck 130 Idaho 711, 712-13 (Ct. App. 1997) (“The right to counsel does not necessarily mean a right to the attorney of one’s choice.”).

[11] See Idaho Rule of Professional Conduct 1.16 cmt. 3 (When a lawyer has been appointed to represent a client, withdrawal ordinarily requires approval of the appointing authority.”) I.R.P.C. 1.16 cmt. 5 (“Whether a client can discharge appointed counsel may depend on applicable law. A client seeking to do so should be given a full explanation of the consequences. These consequences may include a decision by the appointing authority that appointment of successor counsel is unjustified, thus requiring self-representation by the client.”).

[12] State v. Severson, 147 Idaho 694, 703-04 (2009).

[13] Id. at 704.

[14] Burger v. Kemp, 483 U.S. 776, 783 (1987); Holloway v. Arkansas, 435 U.S. 475, 484-83 (1978); see also I.R.P.C. 1.7(a).

[15] Morris v. Slappy, 461 U.S. 1, 22 (1983).

[16] State v. Lippert, 152 Idaho at 887 (2012); United States v. Moore, 159 F.3d 1154, 1158 (9th Cir. 1995) (“Although a [malpractice] lawsuit between defendant and counsel can potentially create an actual conflict of interest…find an actual conflict from a mere threat would allow defendants to manufacture a conflict in any case.”).

[17] State v. McCabe, 101 Idaho 727, 729 (1980); Peck, 130 Idaho at 713.

[18] State v. Nath, 137 Idaho 712, 715 (2002).

[19] Id.

[20] Lippert, 152 Idaho at 887 (citations omitted); Idaho Criminal Rule 44.1(a) contains a similar right and provides that an attorney may move to withdraw from representation in a criminal case if counsel claims—and the court finds—good cause for the withdrawal.

[21] Id. (citations omitted).

[22] State v. Reeder, Docket No. 52288 (Idaho Ct. App. May 28, 2026) (Slip opinion).

[23] Id. at 5.

[24] Id. at 2, 5; Lippert, 152 Idaho at 887.

[25] Lippert, 152 Idaho at 887-88.

[26] Reeder, Docket No. 52288, slip op. at 2.

[27] I.R.P.C. 1.2 (1).

[28] See I.R.P.C. 1.2 (a); IRPC 1.4 (a).

[29] State v. Knight, No. 52929, 2025 Ida. LEXIS 132 (Idaho Supreme

Court Nov. 25, 2025).

[30] Id. At *26-*27.

[31] Id. at *29.

[32] Id. at *32-*33.

[33] Id.

[34] Id. at *33.

[35] Id. at *35, *44-45 (Bevan, C.J., specially concurring); see also United States v. Kronick, 2024 U.S. Dist. LEXIS 113737 *15-18 (D. Ct. J.J. June 27, 2024) (finding defendant waived his right to counsel by his conduct, or alternatively, forfeited his Sixth Amendment right to counsel by confronting and threatening counsel with physical violence, refusing to share discovery with him, directing him not to contact witnesses, verbally abusing him, obstructing him at hearings, intentionally or recklessly failing to communicate with him, threatening to file complaints against him, and routinely representing he would replace him with private counsel, which was the same conduct the defendant engaged in with prior counsel).

[36] Knight, 2025 Ida. LEXIS 132, *40-*46 (Bevan, C.J., specially concurring).

[37] Id. at *45-*46 (emphasis in original); see also, Carolyn T. A. Hartwick, Losing the Right to Counsel:

Exploring and Reforming Waiver by Conduct and Forfeiture in State Courts, 172 UNIV. OF PENN. L. REV. 1401

(2024).