United States District Court, S.D. Georgia, Savannah Division
CHRISTOPHER L. RAY UNITED STATES MAGISTRATE JUDGE.
Carlos Elder seeks to replace his court-appointed attorney,
Elizabeth Pavlis. Doc. 602. On June 25, 2019, the Court held
a hearing on his motion. For the reasons explained below, the
Court finds no good cause to replace Ms. Pavlis. See,
e.g., Thomas v. Wainright, 767 F.2d 738, 742 (11th Cir.
1985) (“An indigent criminal defendant has an absolute
right to be represented by counsel, but he does not have a
right to have a particular lawyer represent him, nor to
demand a different lawyer except for good cause.”
(cites omitted)). Elder's motion raises several concerns
about the quality of the representation he is receiving.
Although the Court is confident, after appropriate inquiry,
that he is receiving adequate representation, some discussion
of the principles involved is warranted.
is concerned about counsel's accessibility. Defendant and
counsel agree that Ms. Pavlis has visited the jail several
times. The Government also represented that it had been in
contact with Ms. Pavlis concerning the ongoing litigation as
well as negotiation of a possible plea. Communication is no
doubt an important aspect of the attorney-client
relationship, but both Elder and Pavlis agree that there has
been communication. As several courts have explained, good
cause for substitution of counsel generally involves a
“complete breakdown” in communication. See,
e.g., United States v. Melillo, 631 Fed.Appx. 761,
770-71 (11th Cir. 2015) (“Good cause for substitution
of counsel exists where there is a fundamental problem, such
as a conflict of interest, a complete breakdown in
communication or an irreconcilable conflict. . . .”
(quotes and cite omitted)). There is no evidence of a
“complete breakdown” here.
is also concerned that Ms. Pavlis has refused to file motions
that he believes are warranted, particularly a motion to
suppress and a renewed motion for pretrial release. At the
hearing, the Court briefly explained to Elder that Pavlis, in
addition to her obligations to provide effective
representation, has an obligation to the Court not to pursue
motions that she deems meritless. As this Court has
An attorney does not serve as a mere mouthpiece or alter ego
for his client, obligated to urge any motion or argument that
his client wishes him to file. Thomas v. Tenneco
Packaging Co., 293 F.3d 1306, 1337 (11th Cir. 2002)
(“An attorney should not be an unreflecting conduit
through which the opinions and desires of a client or witness
are permitted to flow unchecked.”). Rather, an attorney
has a duty to exercise his independent professional judgment
and to file only those motions or raise only those claims
that have potential merit. Id.; Welch v.
Artus, 2007 WL 949652, at * 17 (W.D.N.Y. March 29,
2007). Further, an attorney must adhere to the ethical
standards of the profession, which preclude an attorney from
making “a false statement of material fact or
law” to a Court or other tribunal, Rule 3.3, Georgia
Rules of Professional Conduct, or from advancing an
unwarranted claim or defense. Georgia Rule 3.1. Thus, if a
client insists that an attorney file a motion or take a
position that the attorney does not personally believe to
have any factual or legal merit, “the attorney must
stand his . . . ground and refuse to act in a manner that
flies in the face of the relevant ethical rules.”
Thomas, 293 F.3d at 1327-28. “Given this duty,
it follows that an attorney cannot ‘file first and
think later,' . . . thereby neglecting to employ his or
her independent professional judgment to consider the
plausibility and the appropriateness of what is asserted in
the filed document.” Thomas, 293 F.3d 1327
United States v. Scott, 2007 WL 1101241 at * 1 (S.D.
Ga. April 11, 2007). In response to the Court's inquiry,
Ms. Pavlis explained that she had considered the issues Elder
raised and, after legal research and in light of her
considerable experience, determined that the requested
motions lacked merit.
final issue that Elder raised is his dissatisfaction with the
presentation of the Government's plea offer. Both he and
counsel agreed that counsel disclosed the plea and its terms.
The difficulty involved an anticipatory determination of
Elder's criminal history, under the United States
Sentencing Guidelines. Pavlis indicated that she had
researched the issue, discussed her questions with both the
Government and the United States Probation Office seeking
guidance on the ambiguity, and finally conveyed to Elder the
full range of possible sentences, under the Guidelines. At
the hearing, she represented her considered belief that the
difference would remain within the sentencing judge's
discretion. Ms. Pavlis' inability to definitively
anticipate exercises of judicial discretion does not even
approach “good cause” for replacing her.
Pavlis is an experienced criminal litigator and her
performance in this case, based upon the Government's
assessment, and her performance in the hearing, provide not a
scintilla of doubt of the adequacy of her representation.
Elder's concerns are understandable, given the gravity of
his situation, but they do not rise to the level of
“good cause” for replacing Pavlis as his
appointed counsel. Accordingly, his motion is
DENIED. Doc. 602.