The Right to Retained Counsel

The Right to Retained Counsel

A defendant who can hire a lawyer, and so does not require appointed counsel, has a Sixth Amendment right to decide who that lawyer will be.¹ The preceding section showed why counsel is a necessity in an adversary system. This one asks whose hands the defense is placed in when the defendant can supply a lawyer personally, and the answer is that the choice belongs to the defendant, in state and federal courts alike. In Powell v. Alabama, a state prosecution decided under the Fourteenth Amendment's Due Process Clause, the Court said that a defendant should be afforded "a fair opportunity to secure counsel of his own choice."² The Powell defendants were nonresidents whose trials began six days after indictment, which left almost no time to reach the families and friends who might have arranged a lawyer, and able counsel appeared soon after the convictions.³ Powell therefore protected the opportunity to find a lawyer, while the modern right protects the lawyer once the defendant has found one.

The modern right takes its shape from United States v. Gonzalez-Lopez, and the facts are worth following in order. The defendant was charged in the Eastern District of Missouri with conspiracy to distribute more than 100 kilograms of marijuana, and his family first hired a lawyer named John Fahle.⁴ Gonzalez-Lopez then contacted Joseph Low, a California lawyer, who flew to Missouri and was hired. Low and Fahle appeared together at an evidentiary hearing before a magistrate judge, who allowed Low to participate provisionally and then revoked that permission after Low passed notes to Fahle. Low next filed two applications for admission pro hac vice, the procedure by which a court permits a lawyer licensed elsewhere to appear in a single case, and the district court denied both without initial explanation.

Fahle then withdrew, the court gave Gonzalez-Lopez time to find new representation, and he retained a local lawyer, Karl Dickhaus, for trial. At trial the court again refused Low's admission, forbade Low to sit at counsel table or to communicate with Dickhaus, and stationed a marshal between the two lawyers. The jury convicted, and the Eighth Circuit vacated the conviction because the district court had erred in refusing to admit Low.⁵ The government conceded that the refusal was a mistake, so the Supreme Court did not have to decide whether the denial was justified. It asked what the Sixth Amendment consequence of an erroneous denial is, and it held that erroneously depriving a defendant of the retained lawyer he selected violates the Sixth Amendment.⁶

The right protects the particular lawyer the defendant picks. The Court described the guarantee as one that the accused be "defended by the counsel he believes to be best."⁷ A defendant who ends up with some other competent lawyer has therefore still lost what the Amendment secures. The Court treated the choice of lawyer as the root meaning of the counsel guarantee, a component that is not derived from the Amendment's purpose of ensuring a fair trial, and the remedy sections below develop what follows from that.⁸

The reason the right follows a person and not merely a level of competence comes from what a lawyer does. Lawyers differ in how they investigate, which theory of defense they build, whom they accept on a jury, how they question witnesses, and what they say in argument, and the defendant is the one who lives with the result. A defendant who retains a lawyer also hands that lawyer authority over many strategic decisions, and that handover is justified only by the defendant's own consent, at the outset, to accept the lawyer as a representative.⁹ That consent is what makes the lawyer's choices the defendant's own, so the Amendment gives the defendant a stake in who receives the authority. A court's view that another lawyer would have done just as well cannot answer a claim about who was chosen.

The lawyer the defendant may choose is almost anyone qualified. The person must be licensed to practice law and free of a conflict of interest that would make the trial unfair, but the Constitution sets no minimum level of experience or expertise, with a possible exception for death penalty cases.¹⁰ A lawyer admitted only elsewhere must also be admitted to practice in the forum. That is why pro hac vice admission carried so much weight in Gonzalez-Lopez: an erroneous refusal to admit an out-of-state lawyer is a denial of the chosen lawyer, and it is not cured by pointing to the adequacy of the local lawyer who replaced the first.¹¹

The two situations differ in one fact, the presence or absence of a valid ground for refusing the lawyer, and that fact decides whether the refusal is erroneous. The Court itself described the right to counsel of choice as circumscribed in several important respects,¹² so the first question on any fact pattern is whether the denial was erroneous, and the question of remedy comes only after that. The next section develops the limits that make a refusal proper: the indigent defendant who is promised competent counsel but not a preference, the lawyer whose conflict of interest threatens the trial, and the government's power to seize tainted funds that would otherwise pay the fee.

The right also has a financial side, because a chosen lawyer has to be paid. The Sixth Amendment protects a defendant's ability "to use one's own funds to mount the defense that one wishes to present."¹³ In Luis v. United States the Court held the right violated when the government froze assets that were not tainted by the charged crime, only to secure payment of possible fines if the defendant were convicted.¹⁴ A similar problem arose in United States v. Stein, where the Second Circuit upheld dismissal of the indictments of 13 tax professionals after the government took over their employer and a Deputy Attorney General's memo strongly discouraged the employer from paying the promised legal fees.¹⁵ These cases show that prosecutors can violate the right as well as judges.