Can Misconduct Cause You to Lose Your Right to a Lawyer?

Beyond an express waiver, a defendant can also lose the right to a lawyer through forfeiture in certain circumstances. Forfeiture of counsel is a doctrine that applies when a defendant’s own serious misconduct effectively forfeits the right to an attorney. Unlike a waiver, which is a voluntary relinquishment of a known right, forfeiture does not require an informed choice by the defendant – it is a consequence of behavior that is incompatible with the continued services of counsel.

North Carolina appellate courts have made clear that forfeiture is reserved for severe situations and is not to be invoked lightly, given the fundamental nature of the right at stake. The North Carolina Supreme Court has emphasized that forfeiture of counsel should be found only in rare circumstances where the defendant’s actions (serious misconduct) frustrate the purpose of the right to counsel and prevent the trial from moving forward.

In other words, only when a defendant’s conduct is so egregious that it entirely undermines the fair and orderly administration of justice will a court deem the right to counsel forfeited. Examples might include assaulting one’s attorney or brazen obstruction of the proceedings.

Prior case law has identified general categories of behavior that may justify a forfeiture finding. As summarized in North Carolina v. Blakeney, 245 N.C. App. 452 (2016), and other cases, these categories include the following:

• Extended delay tactics: for instance, a defendant who repeatedly fires multiple attorneys in an effort to stall the proceedings or otherwise manipulates the system to avoid going to trial.

• Offensive or abusive conduct: such as threatening or physically attacking counsel, directing profane outbursts at the court, spitting on lawyers, or other behavior that makes it effectively impossible for any attorney to represent the defendant.

• Refusal to participate or recognize the court’s authority: for example, a defendant who will not respond to the court, insists on nonsensical legal claims, or refuses to proceed with any attorney out of a belief that the court has no jurisdiction.

At Powers Law Firm, our attorneys provide thoughtful, experienced guidance in criminal defense cases involving impaired driving, DWI, and serious felony charges. We assist clients in courtrooms throughout the Charlotte metro area, including Mecklenburg, Union, Iredell, Gaston, Rowan, and Lincoln Counties. If you’d like to discuss your legal situation and explore available options, please call 704-342-4357.

When Does Misconduct Justify Losing the Right to a Lawyer?

Even within these categories, the North Carolina Supreme Court has cautioned that not every frustrating or disruptive act warrants forfeiture. The misconduct must be truly extreme. In North Carolina v. Atwell, 383 N.C. 437 (2022), the Court reiterated that if the delays or difficulties caused by the defendant are not so egregious as to thwart the actual purposes of the right to counsel, then forfeiture likely is not constitutionally permissible.

Moreover, the trial judge should ideally make specific findings of fact about the defendant’s conduct to support a forfeiture decision – especially in cases of alleged delay tactics, the court should document why it believes the defendant was intentionally trying to delay or obstruct the proceedings.

In the recent North Carolina v. McGirt decision, the State argued that, given the defendant’s history of firing or pushing out five successive lawyers, the trial court’s action could be justified as an implicit finding of forfeiture. The record appears to indicate that the trial judge was frustrated with the pattern of attorney withdrawals and replacements. However, the Court of Appeals majority was not convinced that McGirt’s behavior rose to the level required for forfeiture of counsel under the stringent standards set by the appellate courts. The opinion carefully reviewed McGirt’s conduct and the reasons for each attorney’s departure:

• The first two attorneys left for reasons unrelated to any misbehavior by McGirt (institutional conflict of interest and an attorney career change). Those cannot count against the defendant.

• The third attorney’s withdrawal for “personal reasons” provided no indication that McGirt did anything wrong; there was no evidence that this was a delay tactic by the defendant.

• The issues with the fourth attorney appeared to stem from disagreements over case strategy and lack of communication. McGirt’s complaints – that counsel was not meeting his objectives and had been absent – suggest he was dissatisfied with performance, not that he (the defendant) was refusing to work with any lawyer at all. Importantly, wanting a more attentive or aggressive attorney is not the same as refusing to participate in one’s defense. The Supreme Court’s decision in North Carolina v. Harvin, 382 N.C. 566 (2022), held that a defendant did not forfeit counsel when he sought to replace an appointed lawyer due to legitimate concerns about the preparation of his defense (as opposed to simply trying to delay). McGirt’s stance with his attorney fits that mold – frustration with counsel’s efforts, rather than an intent to derail the proceedings. There was also no finding by the trial court that McGirt’s conflict with counsel was aimed at postponing the trial.

• Regarding the fifth attorney, the record shows McGirt initially wanted him removed because the lawyer had not visited him for months. Only after McGirt filed a motion to fire his most recent appointed counsel did the attorney report that McGirt was refusing to cooperate. The timing suggests the attorney-client relationship had already broken down. Crucially, McGirt’s refusal to meet with the attorney came after months of perceived inaction by counsel. This isolated instance of non-cooperation is not on par with the kind of persistent, hostile misconduct seen in cases where forfeiture was found (for example, North Carolina v. Montgomery, 138 N.C. App. 521 (2000), where the defendant not only refused to cooperate but also physically assaulted his lawyer). McGirt never threatened or harmed his attorneys; he was, by all accounts, civil in court (if aggrieved), and he continued to engage with the judge and the process.

Furthermore, the appellate court pointed out that the trial court made no explicit findings that McGirt was intentionally using these attorney conflicts as a tool to delay his trial. The prosecution at the hearing did argue that McGirt had a history of conveniently causing problems with his lawyers whenever a trial date approached. However, the judge did not formally adopt this view on the record or find that McGirt was acting in bad faith.

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Absent such findings – and given contrary indications that McGirt’s complaints were tied to genuine dissatisfaction – the Court of Appeals was unwilling to infer a strategic motive of delay. A lack of specific findings about delay means an appellate court likely would not presume the defendant was trying to game the system.

In light of these considerations, the Court of Appeals held that McGirt’s conduct did not amount to serious misconduct and did not justify forfeiture of his right to counsel. The mere fact of having multiple lawyers is not, in and of itself, sufficient; the context and intent matter. Here, McGirt’s pattern was arguably as consistent with trying (in his way) to secure better representation as it was with trying to stall – and the evidence of deliberate stalling was not strong.

Therefore, treating the situation as a forfeiture would have been improper. The appellate court’s analysis aligns with a trend in North Carolina law over the past few years, where the appellate courts appear to apply the forfeiture doctrine to truly extreme cases.

Waiver by Conduct: How a Defendant Can Lose the Right to a Lawyer without Explicit Waiver

A “hybrid” theory known as waiver by conduct in an important consideration. This concept lies between pure waiver and pure forfeiture. Waiver by conduct occurs when a defendant’s actions, after being warned by the court, effectively constitute a waiver of counsel.

In a waiver by conduct scenario, the defendant may not explicitly state a wish to proceed pro se, but if they have been warned that further dilatory or improper behavior will be treated as a waiver, and then they continue with that behavior, the court can deem the right to counsel waived.

The critical element here is a prior warning to the defendant. The idea is that once a defendant is put on notice that “if you do X, you will lose your lawyer,” continuation of X may be treated as the defendant’s choice to represent themselves. This is somewhat less severe than forfeiture (because the defendant was warned and thus, in theory, knowingly brought the consequence on themself), but it still does not require the clear verbal waiver that a standard waiver does.

In McGirt’s case, the question was whether the trial court’s handling of the situation could be upheld as a waiver by conduct. For that to be valid, McGirt must have been warned that firing or refusing to work with another attorney would result in him having to proceed without counsel. No such warning ever appears in the record.

Unlike trial judges in other matters, who explicitly warn a defendant that dismissing counsel would mean no new lawyer and self-representation, the judge in McGirt’s case did not give a similar caution.

In fact, when the fourth appointed attorney was allowed to withdraw, the court simply appointed a new attorney rather than warning McGirt of self-representation. Therafter, at the hearing concerning the fifth lawyer appointed as counsel of record, the court’s announcement that it would not appoint another lawyer came after allowing that lawyer to withdraw, not before.

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McGirt was not told in advance, “If I let this lawyer withdraw, you will have no lawyer going forward.” He was essentially confronted with a fait accompli that he now had to represent himself. Under the Blakeney framework, this does not qualify as a waiver by conduct because the essential predicate – a clear warning and opportunity to conform his behavior – was missing.

The Court of Appeals noted that nothing in the transcript shows the trial court ever warned McGirt that his conduct was viewed as dilatory or that it would result in loss of counsel. Absent such warning, the court ruled that McGirt did not impliedly waive his right to counsel by conduct.

The appellate court in North Carolina v. McGirt (in the majority opinion) rejected the arguments that the defendant had relinquished his right to counsel. He did not voluntarily waive it, he did not forfeit it through misconduct, and he did not waive it by conduct after a warning. The remedy for this violation was to vacate McGirt’s convictions and remand the case for a new trial, this time with the benefit of counsel (unless at that point the defendant validly waives counsel under the proper procedure). A dissenting judge (Judge Tyson) opined that McGirt’s actions were sufficient to constitute a waiver or forfeiture, but the majority opinion is the controlling law from this case.

Practical Implications for Trial Courts and Defense Counsel

The McGirt decision carries interesting lessons for trial judges and defense attorneys navigating the difficult situations where a defendant is dissatisfied with counsel or is engaging in problematic behavior. The ruling reflects a few practical points:

1. Trial courts must rigorously follow the waiver inquiry requirements. If a defendant even hints at proceeding without a lawyer, the trial judge should conduct the full N.C.G.S. § 15A-1242 colloquy on the record. Judges cannot shortcut this process. In McGirt, the lack of specific questions and advisements to the defendant appears to have been a key factor in the reversal. Going forward, judges should ask the defendant directly if he wishes to represent himself and ensure that the defendant understands the choice being made. Every element – the right to counsel, the consequences of waiver, and the nature of the charges and punishment – should be clearly explained. If the defendant does not unequivocally state a desire to proceed pro se, the judge should not find a waiver. It is better to err on the side of caution and assume the defendant has not waived counsel if there is ambiguity.

2. Requesting substitute counsel is not the same as waiving counsel. Defendants sometimes complain about their appointed lawyers or ask for a different lawyer. Such a request, by itself, does not mean the defendant wants no lawyer at all. McGirt is a good example: his persistent refrain was essentially “I want a better lawyer,” not “I will represent myself.” Trial courts should recognize this distinction. When confronted with a motion for substitute counsel (for example, due to alleged inadequate representation or personal conflict), the appropriate response is to evaluate whether there is good cause to replace counsel – not to treat the request as an automatic waiver of the right to any counsel. If good cause for new counsel is lacking, the court can deny the change, but it should also advise the defendant that the choice is to continue with current counsel or proceed pro se. The defendant should be given a clear opportunity to stick with counsel. Only if the defendant then clearly opts to discharge counsel knowing the consequences, or engages in extreme misconduct, should the result be no counsel. In short, judges should not transform a desire for different representation into a forfeiture of all representation unless the legal standards for forfeiture are truly met.

3. Use warnings to prevent accidental forfeiture or waiver by conduct. When a defendant’s behavior is heading toward a point where the court is considering removing counsel (for instance, repeated last-minute firings or obstinate lack of cooperation), a best practice is for the judge to issue a clear warning on the record. The warning should outline what conduct is unacceptable and explicitly state that continuing down that path will leave the defendant to proceed on his own. This sets the stage for a possible “waiver by conduct” finding that can withstand appellate review. In McGirt, no such warning was given, which was fatal to the State’s argument of implied waiver. A carefully delivered warning serves two purposes: it gives the defendant one last chance to correct course (thus protecting the right to counsel), and it creates a record that the defendant was informed of the stakes. If the defendant persists in the misconduct after the warning, an appellate court is much more likely to uphold a subsequent decision to require the defendant to go to trial pro se. A simple admonition like, “If you fire your next attorney, the court will not appoint another and you will have to represent yourself,” can make all the difference in handling a recalcitrant defendant.

4. Reserve forfeiture of counsel for truly extreme cases. The Court of Appeals in McGirt affirms that forfeiting a defendant’s right to counsel should serve as a last resort. Short of violent attacks, threats, or utterly obstructionist conduct, courts should be hesitant to declare a forfeiture. This will require judges to exercise patience and consider lesser measures first. If a defendant is simply unhappy with counsel or even if they are uncooperative to a degree, the court can address those issues without immediately stripping the defendant of representation. Alternatives include: denying baseless requests for new counsel (while keeping the current counsel in place), holding the defendant in contempt for any outbursts rather than removing counsel, or as mentioned, warning the defendant. Only if the defendant makes it impossible for any lawyer to represent him (for example, by making physical threats or by firing multiple lawyers with the specific intent to disrupt the process) should forfeiture be declared. The practical implication is that it’s a good idea to create a detailed record of the defendant’s conduct and their responses to it. If a case does end up on appeal, a well-documented record will be helpful in determining whether the line of forfeiture was appropriately crossed. The McGirt opinion signals that appellate courts will look for evidence that the defendant deliberately sabotaged the attorney-client relationship to delay the trial or engaged in serious misconduct, before approving a forfeiture outcome.

5. For defense counsel, protect the record and advise your client. Defense attorneys who find themselves in contentious relationships with their clients have a role to play in avoiding waiver/forfeiture pitfalls. If you are appointed counsel and your client is persistently dissatisfied, you may want to consider asking the court for a hearing to address the issue on the record. This gives the court an opportunity to conduct the necessary colloquy or give warnings. It also ensures there is clarity about the client’s wishes. From the perspective of an appellate record, it is far better to have an explicit exchange in which the client either reaffirms the desire for counsel or knowingly opts to proceed alone. Additionally, counsel should explain to the client (privately, and perhaps on the record if appropriate) the dangers of dismissing counsel. Sometimes, a defendant mistakenly believes that “firing my lawyer” will simply force the court to appoint a new one indefinitely. As McGirt illustrates, that strategy can backfire and result in the defendant having to represent himself, which is rarely in the defendant’s best interest on serious felony charges. If, despite advice, a client insists on firing counsel, the attorney should try to document any refusal by the client to work with them. This documentation can be important if a forfeiture determination is later reviewed. Finally, if an attorney is appointed as standby counsel after withdrawal, they should remain prepared to step in or assist if the defendant changes their mind or if the court reappoints them. In McGirt, standby counsel ended up participating in witness examination. Such hybrid roles can be awkward, but the primary goal should be to safeguard the defendant’s rights and the integrity of the trial to the extent possible.

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Why Forfeiture of the Right to a Lawyer Requires Careful Scrutiny

The appellate decision in North Carolina v. McGirt highlights how rare and fact-specific the forfeiture of counsel doctrine should be in North Carolina. Frustration with criminal defense attorneys, even repeated requests for substitution, does not automatically translate into forfeiture. Nor should courts assume a defendant has waived the right to counsel through conduct unless the record includes a clear warning and opportunity to correct course.

The right to a lawyer is foundational in a criminal case. Whether the issue is delay, disruption, or dissatisfaction with counsel, courts are encouraged to proceed with caution before removing that right. As McGirt shows, context and intent matter. Without evidence of serious misconduct and/or a clear procedural warning, the courts are generally reluctant to treat attorney changes as forfeiture—or as waiver by conduct.

At Powers Law Firm, we provide practical, experienced counsel to people facing criminal charges such as DWI, impaired driving, and serious felony offenses. We serve clients across the Charlotte metro region, including Union, Iredell, Mecklenburg, Gaston, Rowan, and Lincoln Counties. To speak with us about your situation and find out how we might assist, call 704-342-4357.