(1) (a) During the pendency of an appeal, withdrawal or substitution of court- appointed counsel is subject to ORAP 8.10(1).
(b) A court-appointed attorney shall have no obligation to move to withdraw or substitute counsel at the client’s request unless the attorney has a good faith basis for the motion.
(2) (a) If court-appointed counsel of record wishes to substitute another court- appointed attorney as counsel for a party, counsel of record first must consult with the Office of Public Defense Services regarding the need for a substitution and who should be substituted as new counsel. Thereafter, if counsel of record files a motion for substitution, in addition to satisfying the service requirements provided in ORAP 8.10(1), counsel of record shall serve a copy of the motion on the Office of Public Defense Services. Upon expiration of seven days after the date of filing the motion, unless it appears otherwise from the record, the court will presume that good and sufficient cause exists for substitution of counsel and the substitution shall be deemed to have been ordered by the court if:
(i) Counsel of record has signed the substitution;
(ii) The new attorney to be substituted as counsel for a party has been determined by the Office of Public Defense Services to be qualified for the type of case in which the motion for substitution is filed; and
(iii) No objection is filed to the proposed substitution.
(b) If, after consultation by counsel of record with the Office of Public Defense Services, the Office of Public Defense Services does not concur with the need for substitution of counsel or does not approve the attorney to be substituted into the case, counsel of record may file a motion for substitution of counsel. Any such motion must satisfy the service requirements of subsection (1) of ORAP 8.10, must include proof of service on the Office of Public Defense Services, and is subject to ORAP 7.05 and any other rule relating to motions generally.1
(3) (a) If the client of a court-appointed attorney moves to appoint new counsel based on the client’s dissatisfaction with professional services rendered by the attorney, the client shall file the motion in the appellate court and serve the motion on the court- appointed attorney.
(b) If a party has a statutory or constitutional right to be represented by court- appointed counsel, the filing of any motion that would result in the party proceeding on appeal or review without counsel constitutes an attempt to waive the right to counsel.2
(c) If the court declines to accept a party’s attempt to waive counsel, the court shall give the party an opportunity to file a supplemental pro se brief as provided in ORAP 5.92(2) and (3).3
(4) To the extent practicable, the provisions of this rule are applicable to a legal advisor appointed under ORS 135.045(1)(d).4
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1 See ORS 138.500(2)(d) regarding substitution of counsel pursuant to the policies and procedures of the Public Defense Services Commission; Public Defense Payment Policies and Procedure 1.7 (Substitution of Appointed Counsel).
2 See ORS 135.045(1)(c) regarding waiver of counsel in criminal cases generally and in death sentence cases. See ORS 138.504 regarding waiver of court-appointed counsel on appeal in criminal cases. See also Hendricks v. Zenon, 993 F2d 664, 668-71 (9th Cir 1993), regarding waiver of the right to counsel on appeal in criminal cases.
3 “Pro se” means “for oneself” or “on one’s own behalf.” A supplemental pro se brief is the product of the party himself or herself, and not of the attorney representing the party.
4 See ORS 135.045(1)(d) regarding appointment of a legal advisor for a defendant in a criminal case who waives the right to counsel.
