UNITED STATES v. GONZALEZ-LOPEZ

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140 OCTOBER TERM, 2005
Syllabus
UNITED STATES v. GONZALEZ-LOPEZ
certiorari to the united states court of appeals for
the eighth circuit
No. 05–352. Argued April 18, 2006—Decided June 26, 2006
Respondent hired attorney Low to represent him on a federal drug
charge. The District Court denied Low’s application for admission pro
hac vice on the ground that he had violated a professional conduct rule
and then, with one exception, prevented respondent from meeting or
consulting with Low throughout the trial. The jury found respondent
guilty. Reversing, the Eighth Circuit held that the District Court
erred in interpreting the disciplinary rule, that the court’s refusal to
admit Low therefore violated respondent’s Sixth Amendment right to
paid counsel of his choosing, and that this violation was not subject to
harmless-error review.
Held: A trial court’s erroneous deprivation of a criminal defendant’s choice
of counsel entitles him to reversal of his conviction. Pp. 144–152.
(a) In light of the Government’s concession of erroneous deprivation,
the trial court’s error violated respondent’s Sixth Amendment right to
counsel of choice. The Court rejects the Government’s contention that
the violation is not “complete” unless the defendant can show that sub
stitute counsel was ineffective within the meaning of Strickland v.
Washington, 466 U. S. 668, 691–696—i. e., that his performance was de
ficient and the defendant was prejudiced by it—or the defendant can
demonstrate that substitute counsel’s performance, while not deficient,
was not as good as what his counsel of choice would have provided,
creating a “reasonable probability that . . . the result . . . would have
been different,” id., at 694. To support these propositions, the Govern
ment emphasizes that the right to counsel is accorded to ensure that the
accused receive a fair trial, Mickens v. Taylor, 535 U. S. 162, 166, and
asserts that a trial is not unfair unless a defendant has been prejudiced.
The right to counsel of choice, however, commands not that a trial be
fair, but that a particular guarantee of fairness be provided—to wit,
that the accused be defended by the counsel he believes to be best.
Cf. Crawford v. Washington, 541 U. S. 36, 61. That right was violated
here; no additional showing of prejudice is required to make the viola
tion “complete.” Pp. 144–148.
(b) The Sixth Amendment violation is not subject to harmless-error
analysis. Erroneous deprivation of the right to counsel of choice, “with

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Syllabus
consequences that are necessarily unquantifiable and indeterminate, un
questionably qualifies as ‘structural error.’ ” Sullivan v. Louisiana,
508 U. S. 275, 282. It “def[ies] analysis by ‘harmless error’ standards”
because it “affec[ts] the framework within which the trial proceeds” and
is not “simply an error in the trial process itself.” Arizona v. Fulmi
nante, 499 U. S. 279, 309–310. Different attorneys will pursue different
strategies with regard to myriad trial matters, and the choice of attor
ney will affect whether and on what terms the defendant cooperates
with the prosecution, plea bargains, or decides to go to trial. It is im
possible 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. This inquiry is not comparable to that re
quired to show that a counsel’s deficient performance prejudiced a de
fendant. Pp. 148–151.
(c) Nothing in the Court’s opinion casts any doubt or places any quali
fication upon its previous holdings limiting the right to counsel of choice
and recognizing trial courts’ authority to establish criteria for admitting
lawyers to argue before them. However broad a trial court’s discretion
may be, this Court accepts the Government’s concession that the Dis
trict Court erred. Pp. 151–152.
399 F. 3d 924, affirmed and remanded.
Scalia, J., delivered the opinion of the Court, in which Stevens, Sou
ter, Ginsburg, and Breyer, JJ., joined. Alito, J., filed a dissenting
opinion, in which Roberts, C. J., and Kennedy and Thomas, JJ., joined,
post, p. 152.
Deputy Solicitor General Dreeben argued the cause for
the United States. With him on the brief were Solicitor
General Clement, Assistant Attorney General Fisher, Lisa
S. Blatt, and Daniel S. Goodman.
Jeffrey L. Fisher argued the cause for respondent. With
him on the brief were J. Richard McEachern, Pamela S.
Karlan, Joseph H. Low IV, Thomas C. Goldstein, Amy
Howe, and Kevin K. Russell.*
*Quin Denvir, Joshua L. Dratel, and David M. Porter filed a brief for
the National Association of Criminal Defense Lawyers as amicus curiae
urging affirmance.

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142 UNITED STATES v. GONZALEZ-LOPEZ
Opinion of the Court
Justice Scalia delivered the opinion of the Court.
We must decide whether a trial court’s erroneous depriva
tion of a criminal defendant’s choice of counsel entitles him
to a reversal of his conviction.
I
Respondent Cuauhtemoc Gonzalez-Lopez was charged in
the Eastern District of Missouri with conspiracy to distrib
ute more than 100 kilograms of marijuana. His family hired
attorney John Fahle to represent him. After the arraign
ment, respondent called a California attorney, Joseph Low,
to discuss whether Low would represent him, either in addi
tion to or instead of Fahle. Low flew from California to
meet with respondent, who hired him.
Some time later, Low and Fahle represented respondent
at an evidentiary hearing before a Magistrate Judge. The
Magistrate Judge accepted Low’s provisional entry of ap
pearance and permitted Low to participate in the hearing on
the condition that he immediately file a motion for admission
pro hac vice. During the hearing, however, the Magistrate
Judge revoked the provisional acceptance on the ground
that, by passing notes to Fahle, Low had violated a court
rule restricting the cross-examination of a witness to one
counsel.
The following week, respondent informed Fahle that he
wanted Low to be his only attorney. Low then filed an ap
plication for admission pro hac vice. The District Court de
nied his application without comment. A month later, Low
filed a second application, which the District Court again de
nied without explanation. Low’s appeal, in the form of an
application for a writ of mandamus, was dismissed by the
United States Court of Appeals for the Eighth Circuit.
Fahle filed a motion to withdraw as counsel and for a
show-cause hearing to consider sanctions against Low.
Fahle asserted that, by contacting respondent while re
spondent was represented by Fahle, Low violated Mo. Rule

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of Professional Conduct 4–4.2 (2003), which prohibits a law
yer “[i]n representing a client” from “communicat[ing] about
the subject of the representation with a party . . . repre
sented 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 representa
tion. 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 hac 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 re
spondent. 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. Respond
ent was unable to meet with Low throughout the trial, ex
cept 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 pro
hibit 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

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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).
II
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 pre
viously 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 Gov
ernment here agrees, as it has previously, that “the Sixth
Amendment guarantees a defendant the right to be repre
sented by an otherwise qualified attorney whom that defend
ant 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 circum
scribed in several important respects.” Wheat, supra, at
159. But the Government does not dispute the Eighth Cir
cuit’s conclusion in this case that the District Court errone
ously 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 defi
cient and the defendant was prejudiced by it. In the alter
native, the Government contends that the defendant must at
least demonstrate that his counsel of choice would have pur
sued a different strategy that would have created a “reason

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able probability that . . . the result of the proceedings would
have been different,” id., at 694—in other words, that he was
prejudiced within the meaning of Strickland by the denial
of his counsel of choice even if substitute counsel’s perform
ance was not constitutionally deficient.1 To support these
propositions, the Government points to our prior cases,
which note that the right to counsel “has been accorded . . .
not for its own sake, but because of the effect it has on the
ability of the accused to receive a fair trial.” Mickens v.
Taylor, 535 U. S. 162, 166 (2002) (internal quotation marks
omitted). A trial is not unfair and thus the Sixth Amend
ment is not violated, the Government reasons, unless a de
fendant has been prejudiced.
Stated as broadly as this, the Government’s argument in
effect reads the Sixth Amendment as a more detailed version
of the Due Process Clause—and then proceeds to give no
effect to the details. It is true enough that the purpose of
the rights set forth in that Amendment is to ensure a fair
trial; but it does not follow that the rights can be disregarded
so long as the trial is, on the whole, fair. What the Govern
ment urges upon us here is what was urged upon us (success
fully, at one time, see Ohio v. Roberts, 448 U. S. 56 (1980))
with regard to the Sixth Amendment’s right of confronta
tion—a line of reasoning that “abstracts from the right to
its purposes, and then eliminates the right.” Maryland
v. Craig, 497 U. S. 836, 862 (1990) (Scalia, J., dissenting).
1 The dissent proposes yet a third standard—viz., that the defendant
must show “ ‘an identifiable difference in the quality of representation be
tween the disqualified counsel and the attorney who represents the de
fendant at trial.’ ” Post, at 156 (opinion of Alito, J.). That proposal suf
fers from the same infirmities (outlined later in text) that beset the
Government’s positions. In addition, however, it greatly impairs the clar
ity of the law. How is a lower-court judge to know what an “identifiable
difference” consists of? Whereas the Government at least appeals to
Strickland and the case law under it, the most the dissent can claim by
way of precedential support for its rule is that it is “consistent with” cases
that never discussed the issue of prejudice. Post, at 156.

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Since, it was argued, the purpose of the Confrontation
Clause was to ensure the reliability of evidence, so long as
the testimonial hearsay bore “indicia of reliability,” the Con
frontation Clause was not violated. See Roberts, supra, at
65–66. We rejected that argument (and our prior cases that
had accepted it) in Crawford v. Washington, 541 U. S. 36
(2004), saying that the Confrontation Clause “commands, not
that evidence be reliable, but that reliability be assessed in
a particular manner: by testing in the crucible of cross
examination.” Id., at 61.
So also with the Sixth Amendment right to counsel of
choice. It commands, not that a trial be fair, but that a par
ticular guarantee of fairness be provided—to wit, that the
accused be defended by the counsel he believes to be best.
“The Constitution guarantees a fair trial through the Due
Process Clauses, but it defines the basic elements of a fair
trial largely through the several provisions of the Sixth
Amendment, including the Counsel Clause.” Strickland,
supra, at 684–685. In sum, the right at stake here is the
right to counsel of choice, not the right to a fair trial; and
that right was violated because the deprivation of counsel
was erroneous. No additional showing of prejudice is re
quired to make the violation “complete.” 2
The cases the Government relies on involve the right to
the effective assistance of counsel, the violation of which gen
erally requires a defendant to establish prejudice. See, e. g.,
2 The dissent resists giving effect to our cases’ recognition, and the Gov
ernment’s concession, that a defendant has a right to be defended by coun
sel of his choosing. It argues that because the Sixth Amendment guaran
tees the right to the “assistance of counsel,” it is not violated unless “the
erroneous disqualification of a defendant’s counsel of choice . . . impair[s]
the assistance that a defendant receives at trial.” Post, at 153. But if
our cases (and the Government’s concession) mean anything, it is that the
Sixth Amendment is violated when the erroneous disqualification of coun
sel “impair[s] the assistance that a defendant receives at trial [from the
counsel that he chose].”

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Strickland, 466 U. S., at 694; Mickens, supra, at 166; United
States v. Cronic, 466 U. S. 648 (1984). The earliest case gen
erally cited for the proposition that “the right to counsel is
the right to the effective assistance of counsel,” McMann v.
Richardson, 397 U. S. 759, 771, n. 14 (1970), was based on the
Due Process Clause rather than on the Sixth Amendment,
see Powell, 287 U. S., at 57 (cited in, e. g., McMann, supra,
at 771, n. 14). And even our recognition of the right to effec
tive counsel within the Sixth Amendment was a consequence
of our perception that representation by counsel “is critical
to the ability of the adversarial system to produce just re
sults.” Strickland, supra, at 685. Having derived the
right to effective representation from the purpose of ensur
ing a fair trial, we have, logically enough, also derived the
limits of that right from that same purpose. See Mickens,
supra, at 166. The requirement that a defendant show prej
udice in effective representation cases arises from the very
nature of the specific element of the right to counsel at issue
there—effective (not mistake-free) representation. Counsel
cannot be “ineffective” unless his mistakes have harmed the
defense (or, at least, unless it is reasonably likely that they
have). Thus, a violation of the Sixth Amendment right to
effective representation is not “complete” until the defendant
is prejudiced. See Strickland, supra, at 685.
The right to select counsel of one’s choice, by contrast, has
never been derived from the Sixth Amendment’s purpose of
ensuring a fair trial.3 It has been regarded as the root
3 In Wheat v. United States, 486 U. S. 153 (1988), where we formulated
the right to counsel of choice and discussed some of the limitations upon
it, we took note of the overarching purpose of fair trial in holding that the
trial court has discretion to disallow a first choice of counsel that would
create serious risk of conflict of interest. Id., at 159. It is one thing to
conclude that the right to counsel of choice may be limited by the need for
fair trial, but quite another to say that the right does not exist unless its
denial renders the trial unfair.

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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 “com
plete” 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 other
wise 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 im
poses a baseline requirement of competence on whatever
lawyer is chosen or appointed.
III
Having concluded, in light of the Government’s concession
of erroneous deprivation, that the trial court violated re
spondent’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 “oc
curred 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 con
stitutional error we called “structural defects.” These
“defy analysis by ‘harmless-error’ standards” because they
“affec[t] the framework within which the trial proceeds,” and
are not “simply an error in the trial process itself.” Id., at

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309–310.4 See also Neder v. United States, 527 U. S. 1, 7–9
(1999). Such errors include the denial of counsel, see Gideon
v. Wainwright, 372 U. S. 335 (1963), the denial of the right of
self-representation, see McKaskle v. Wiggins, 465 U. S. 168,
177–178, n. 8 (1984), the denial of the right to public trial, see
Waller v. Georgia, 467 U. S. 39, 49, n. 9 (1984), and the denial
of the right to trial by jury by the giving of a defective
reasonable-doubt instruction, see Sullivan v. Louisiana, 508
U. S. 275 (1993).
4 The dissent criticizes us for our trial error/structural defect dichotomy,
asserting that Fulminante never said 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 are structural,” post, at
159 (internal quotation marks and citation omitted). Although it is hard
to read that case as doing anything other than dividing constitutional error
into two comprehensive categories, our ensuing analysis in fact relies nei
ther upon such comprehensiveness nor upon trial error as the touchstone
for the availability of harmless-error review. Rather, here, as we have
done in the past, we rest our conclusion of structural error upon the diffi
culty of assessing the effect of the error. See Waller v. Georgia, 467 U. S.
39, 49, n. 9 (1984) (violation of the public-trial guarantee is not subject to
harmlessness review because “the benefits of a public trial are frequently
intangible, difficult to prove, or a matter of chance”); Vasquez v. Hillery,
474 U. S. 254, 263 (1986) (“[W]hen a petit jury has been selected upon
improper criteria or has been exposed to prejudicial publicity, we have
required reversal of the conviction because the effect of the violation can
not be ascertained”). The dissent would use “fundamental unfairness” as
the sole criterion of structural error, and cites a case in which that was
the determining factor, see Neder v. United States, 527 U. S. 1, 9 (1999)
(quoted by the dissent, post, at 158). But this has not been the only crite
rion we have used. In addition to the above cases using difficulty of as
sessment as the test, we have also relied on the irrelevance of harmless
ness, see McKaskle v. Wiggins, 465 U. S. 168, 177, n. 8 (1984) (“Since the
right to self-representation is a right that when exercised usually in
creases the likelihood of a trial outcome unfavorable to the defendant, its
denial is not amenable to ‘harmless error’ analysis”). Thus, it is the dis
sent that creates a single, inflexible criterion, inconsistent with the reason
ing of our precedents, when it asserts that only those errors that always
or necessarily render a trial fundamentally unfair and unreliable are
structural, post, at 159.

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We have little trouble concluding that erroneous depriva
tion of the right to counsel of choice, “with consequences that
are necessarily unquantifiable and indeterminate, unques
tionably qualifies as ‘structural error.’ ” Id., at 282. Differ
ent 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 bar
gains, 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, in
cluding 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 prej
udice 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 ineffec
tiveness “pervades” a trial, it does so (to the extent we can
detect it) through identifiable mistakes. We can assess how

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those mistakes affected the outcome. To determine the ef
fect of wrongful denial of choice of counsel, however, we
would not be looking for mistakes committed by the actual
counsel, but for differences in the defense that would have
been made by the rejected counsel—in matters ranging from
questions asked on voir dire and cross-examination to such
intangibles as argument style and relationship with the
prosecutors. We would have to speculate upon what mat
ters the rejected counsel would have handled differently—
or indeed, would have handled the same but with the benefit
of a more jury-pleasing courtroom style or a longstanding
relationship of trust with the prosecutors. And then we
would have to speculate upon what effect those different
choices or different intangibles might have had. The diffi
culties of conducting the two assessments of prejudice are
not remotely comparable.5
IV
Nothing we have said today casts any doubt or places any
qualification upon our previous holdings that limit the right
to counsel of choice and recognize the authority of trial
courts to establish criteria for admitting lawyers to argue
before them. As the dissent too discusses, post, at 154, the
right to counsel of choice does not extend to defendants who
require counsel to be appointed for them. See Wheat, 486
U. S., at 159; Caplin & Drysdale, 491 U. S., at 624, 626. Nor
5 In its discussion of the analysis that would be required to conduct
harmless-error review, the dissent focuses on which counsel was “better.”
See post, at 158–159. This focus has the effect of making the analysis
look achievable, but it is fundamentally inconsistent with the principle
(which the dissent purports to accept for the sake of argument) that the
Sixth Amendment can be violated without a showing of harm to the qual
ity of representation. Cf. McKaskle, supra, at 177, n. 8. By framing its
inquiry in these terms and expressing indignation at the thought that a
defendant may receive a new trial when his actual counsel was at least as
effective as the one he wanted, the dissent betrays its misunderstanding
of the nature of the right to counsel of choice and its confusion of this right
with the right to effective assistance of counsel.

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152 UNITED STATES v. GONZALEZ-LOPEZ
Alito, J., dissenting
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 stand
ards 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 rele
vant here. This is not a case about a court’s power to en
force rules or adhere to practices that determine which at
torneys 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 re
spondent’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 con
viction must automatically be reversed whenever a trial
court errs in applying its rules regarding pro hac vice admis
sions and as a result prevents a defendant from being repre
sented at trial by the defendant’s first-choice attorney. In

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Alito, J., dissenting
stead, a defendant should be required to make at least some
showing that the trial court’s erroneous ruling adversely
affected the quality of assistance that the defendant re
ceived. In my view, the majority’s contrary holding is based
on an incorrect interpretation of the Sixth Amendment and
a misapplication of harmless-error principles. I respect
fully dissent.
I
The majority makes a subtle but important mistake at the
outset in its characterization of what the Sixth Amendment
guarantees. The majority states that the Sixth Amendment
protects “the right of a defendant who does not require ap
pointed counsel to choose who will represent him.” Ante,
at 144. What the Sixth Amendment actually protects, how
ever, is the right to have the assistance that the defendant’s
counsel of choice is able to provide. It follows that if the
erroneous disqualification of a defendant’s counsel of choice
does not impair the assistance that a defendant receives at
trial, there is no violation of the Sixth Amendment.1
The language of the Sixth Amendment supports this inter
pretation. The Assistance of Counsel Clause focuses on
what a defendant is entitled to receive (“Assistance”), rather
than on the identity of the provider. The background of the
adoption of the Sixth Amendment points in the same direc
tion. The specific evil against which the Assistance of Coun
sel Clause was aimed was the English common-law rule
severely limiting a felony defendant’s ability to be assisted
by counsel. United States v. Ash, 413 U. S. 300, 306 (1973).
“[T]he core purpose of the counsel guarantee was to assure
‘Assistance’ at trial,” id., at 309, and thereby “to assure fair
ness in the adversary criminal process,” United States v.
1 This view is consistent with the Government’s concession that “[t]he
Sixth Amendment . . . encompasses a non-indigent defendant’s right to
select counsel who will represent him in a criminal prosecution,” Brief for
United States 11, though this right is “circumscribed in several important
respects,” id., at 12 (internal quotation marks omitted).

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Morrison, 449 U. S. 361, 364 (1981). It was not “the essen
tial aim of the Amendment . . . to ensure that a defendant
will inexorably be represented by the lawyer whom he pre
fers.” Wheat v. United States, 486 U. S. 153, 159 (1988);
cf. Morris v. Slappy, 461 U. S. 1, 14 (1983) (“[W]e reject the
claim that the Sixth Amendment guarantees a ‘meaningful
relationship’ between an accused and his counsel”).
There is no doubt, of course, that the right “to have the
Assistance of Counsel” carries with it a limited right to be
represented by counsel of choice. At the time of the adop
tion of the Bill of Rights, when the availability of appointed
counsel was generally limited,2 that is how the right inevita
bly played out: A defendant’s right to have the assistance of
counsel necessarily meant the right to have the assistance
of whatever counsel the defendant was able to secure. But
from the beginning, the right to counsel of choice has been
circumscribed.
For one thing, a defendant’s choice of counsel has always
been restricted by the rules governing admission to practice
before the court in question. The Judiciary Act of 1789
made this clear, providing that parties “in all the courts of
the United States” had the right to “the assistance of such
counsel or attorneys at law as by the rules of the said courts
respectively shall be permitted to manage and conduct
causes therein.” Ch. 20, § 35, 1 Stat. 92. Therefore, if a
defendant’s first-choice attorney was not eligible to appear
under the rules of a particular court, the defendant had no
right to be represented by that attorney. Indeed, if a de
fendant’s top 10 or top 25 choices were all attorneys who
were not eligible to appear in the court in question, the de
fendant had no right to be represented by any of them.
Today, rules governing admission to practice before particu
lar courts continue to limit the ability of a criminal defendant
2 See Act of Apr. 30, 1790, ch. 9, § 29, 1 Stat. 118 (providing for appoint
ment of counsel in capital cases); Betts v. Brady, 316 U. S. 455, 467, n. 20
(1942) (surveying state statutes).

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155 Cite as: 548 U. S. 140 (2006)
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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 defend
ant 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 post
pone the trial date and thereby, in effect, to force the defend
ant 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 tol
erable 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 defend
ant 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 cir
cumstances 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 di
minishes the quality of assistance that the defendant would
have otherwise received. This would not require a defend
ant to show that the second-choice attorney was constitution
ally ineffective within the meaning of Strickland v. Washing

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156 UNITED STATES v. GONZALEZ-LOPEZ
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ton, 466 U. S. 668 (1984). Rather, the defendant would be
entitled to a new trial if the defendant could show “an identi
fiable difference in the quality of representation between the
disqualified counsel and the attorney who represents the de
fendant at trial.” Rodriguez v. Chandler, 382 F. 3d 670, 675
(CA7 2004), cert. denied, 543 U. S. 1156 (2005).
This approach is fully consistent with our prior decisions.
We have never held that the erroneous disqualification of
counsel violates the Sixth Amendment when there is no prej
udice, and while we have stated in several cases that the
Sixth Amendment protects a defendant’s right to counsel of
choice, see Caplin & Drysdale, Chartered v. United States,
491 U. S. 617, 624–625 (1989); Wheat, supra, at 159; Powell
v. Alabama, 287 U. S. 45, 53 (1932), we had no occasion in
those cases to consider whether a violation of this right can
be shown where there is no prejudice. Nor do our opinions
in those cases refer to that question. It is therefore unrea
sonable to read our general statements regarding counsel of
choice as addressing the issue of prejudice.3
3 Powell is the case generally cited as first noting a defendant’s right to
counsel of choice. Powell involved an infamous trial in which the defend
ants were prevented from obtaining any counsel of their choice and were
instead constrained to proceed with court-appointed counsel of dubious
effectiveness. We held that this denied them due process and that “a fair
opportunity to secure counsel of [one’s] own choice” is a necessary concomi
tant of the right to counsel. 287 U. S., at 53; cf. id., at 71 (“[T]he failure
of the trial court to give [petitioners] reasonable time and opportunity to
secure counsel was a clear denial of due process”). It is clear from the
facts of the case that we were referring to the denial of the opportunity
to choose any counsel, and we certainly said nothing to suggest that a
violation of the right to counsel of choice could be established without any
showing of prejudice.
In Wheat, we held that the trial judge had not erred in declining the
defendant’s waiver of his right to conflict-free counsel, and therefore we
had no need to consider whether an incorrect ruling would have required
reversal of the defendant’s conviction in the absence of a showing of preju
dice. We noted that “the right to select and be represented by one’s pre
ferred attorney is comprehended by the Sixth Amendment,” 486 U. S., at

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II
But even accepting, as the majority holds, that the errone
ous 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
l59, but we went on to stress that this right “is circumscribed in several
important respects,” ibid., including by the requirement of bar member
ship and rules against conflicts of interest. Wheat did not suggest that a
violation of the limited Sixth Amendment right to counsel of choice can be
established without showing prejudice, and our statements about the
Sixth Amendment’s “purpose” and “essential aim”—providing effective
advocacy and a fair trial, ibid.—suggest the opposite.
Finally, in Caplin & Drysdale, we held that the challenged action of
the trial judge—entering an order forfeiting funds that the defendant had
earmarked for use in paying his attorneys—had been proper, and, accord
ingly, we had no occasion to address the issue of prejudice. We recog
nized 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,” 491 U. S., at 624–625, but we added that “[w]hatever
the full extent of the Sixth Amendment’s protection of one’s right to retain
counsel of his choosing, that protection does not go beyond ‘the individual’s
right to spend his own money to obtain the advice and assistance of . . .
counsel,’ ” id., at 626 (omission in original).

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158 UNITED STATES v. GONZALEZ-LOPEZ
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for determination of guilt or innocence . . . and no crimi
nal 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 omis
sion of an element of a crime in a jury instruction “necessar
ily render[s] a criminal trial fundamentally unfair or an unre
liable 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 unin
formed,” Cuyler v. Sullivan, 446 U. S. 335, 344 (1980); a de
fendant’s second-choice lawyer may thus turn out to be bet
ter 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 vio
lating the right to choice of counsel, but they do make me
hard put to characterize the violation as “always render[ing]
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 repre
sentation 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,

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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 at
torney 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 epit
ome 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 de
fendant’s first-choice attorney. To be sure, when the effect
of an erroneous disqualification is hard to gauge, the prosecu
tion 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 harm
less error in all cases.
The majority’s focus on the “trial error”/“structural de
fect” 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 ame
nable 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 funda
mental 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.
III
Either of the two courses outlined above—requiring at
least some showing of prejudice, or engaging in harmless

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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 errone
ously 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 at
torney 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,” Strick
land, 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 hac vice admissions, cf. Leis v. Flynt,
439 U. S. 438, 443 (1979) (per curiam), but if it adopts a gen
erous rule and then errs in interpreting or applying it, the
error automatically requires reversal of any conviction, re
gardless 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 repre
sented the defendant in civil matters and who has little crim
inal 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 favor
able 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 Amend
ment 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

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a new trial on the counts of conviction even if the defendant
publicly proclaimed after the verdict that the second attor
ney had provided better representation than any other attor
ney 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 disqualifi
cation of a defendant’s first-choice counsel neither seriously
upsets the defendant’s preferences nor impairs the defend
ant’s representation at trial. As noted above, a defendant’s
second-choice lawyer may sometimes be better than the de
fendant’s first-choice lawyer. Defendants who retain coun
sel are frequently forced to choose among attorneys whom
they do not know and about whom they have limited infor
mation, and thus a defendant may not have a strong prefer
ence 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 de
fendant very nearly chose initially and who is able to pro
vide 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 mini
mal showing of prejudice on the part of the defendant is
unwarranted.
The consequences of the majority’s holding are particu
larly 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, appel
late review typically occurs after the defendant has been
tried and convicted. At that point, if an appellate court con
cludes that the trial judge made a marginally incorrect rul
ing in applying its own pro hac vice rules, the appellate court

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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 re
quired to establish a violation of the Sixth Amendment,
I would vacate and remand to let the Court of Appeals deter
mine 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.