Concept
Limits on the Right
Counsel of choice
Limits on the Right
The right to choose a lawyer is a right to choose among lawyers who can properly serve the defendant, so a court's refusal of the preferred lawyer is sometimes correct. A correct refusal ends the analysis, because only an erroneous deprivation triggers the Gonzalez-Lopez remedy taught in the later sections. Some limits are routine. A trial court may insist that counsel "be qualified to practice law," and it may impose scheduling requirements to keep its docket orderly.1 Powell v. Alabama treated a reasonable delay to hire counsel as a necessary corollary of the right, yet in Ungar v. Sarafite the Court rejected a challenge to the denial of a continuance, relying on the defendant's late request, the ample preparation time the court had already allowed, and the deference owed to the trial judge.2
Three other limits have rules and reasons of their own, and each rests on a different ground: who pays for the lawyer, what the lawyer owes to other clients, and whose money funds the fee. The subsections below state each limit, explain why it exists, and then show a situation in which the limit does not apply and the choice right stays intact.
Indigent Defendants
The guarantee of choice belongs to the defendant who can retain a lawyer. An indigent defendant, meaning one too poor to hire counsel, is entitled to competent counsel, but the Constitution apparently does not give that defendant the right to pick which lawyer the court appoints.3 The limit follows from what Gideon promised. The government supplies a lawyer because the defendant cannot, and what the Sixth Amendment requires it to supply is a competent advocate.
Two reasons support the limit. The first is cost: appointed counsel is paid from public funds, so a right to choose would let each defendant commit public money to a personal preference, and appointment systems that assign lawyers according to availability could not function. The second concerns what a court is able to deliver. A court can see that a lawyer is competent, but it cannot manufacture a particular lawyer-client relationship, and a constitutional right that depends on one would be a right the court could never be sure it had honored.
In Morris v. Slappy the public defender first assigned to the defendant was hospitalized, and a different public defender was assigned in his place. The trial judge denied the defendant's request for a continuance so that the first lawyer could return, and the case went to trial with the replacement. The court of appeals reversed the conviction on the ground that the denial had cost the defendant a meaningful attorney-client relationship, and the Supreme Court reversed that decision, stating that no court could possibly guarantee the kind of rapport with a lawyer, whether privately retained or provided by the public, that the court of appeals had read into the Sixth Amendment.4 The defendant's attachment to the first appointed lawyer gave rise to no constitutional claim.
The only fact that changed between the two defendants is the ability to retain, and that fact decides whether any right of choice exists. The indigent defendant's guarantee is competence, so a complaint about an appointed lawyer is a complaint about quality and not about selection. Students lose points here when they treat a preference for a particular appointed lawyer as if it were the retained-counsel right.
Conflicts of Interest
A defendant has no right to a lawyer who has a conflict of interest, even if the defendant would rather accept the risks of divided loyalties than hire someone else.6 In Wheat v. United States the Court allowed a trial court to refuse a lawyer whose joint representation of codefendants presented a potential conflict of interest.7 The word potential matters, because the court may act before the conflict has actually damaged the defense.
The reason comes from the purpose of the right. The right to select counsel is part of the general right to counsel, which exists to guarantee an effective advocate in an adversary system, and the choice can therefore be limited in ways consistent with that system's basic tenets.8 A lawyer who owes duties to two codefendants shows how the problem arises. The best course for one codefendant may be to bargain with the prosecution and testify against the other, and the lawyer cannot recommend that step to one client without harming the other. The defendant who insists on that lawyer would then hold a chosen lawyer who cannot fully advocate for the defendant's interests, which defeats the purpose that makes the choice valuable.
The defendant's willingness to accept the risk does not cure it, for two reasons. The decision is made before trial, when the conflict may be invisible or still hypothetical, and its costs surface only later, after the defense has been shaped around it. The court also has its own stake in a trial whose result will hold up, because a conviction obtained with a conflicted lawyer invites attack afterward, and a defendant cannot waive away that interest.
The variable is whether the lawyer's duties to someone else threaten the lawyer's ability to advocate for this defendant. Where they do, the refusal is within the court's authority. Where nothing of the kind exists and the lawyer is otherwise qualified, the defendant's selection stands, and an erroneous refusal is the situation Gonzalez-Lopez addresses.
Forfeiture of Fee Assets
The government may use forfeiture statutes to confiscate assets tied to a crime, even when those assets are the only money the defendant could use to hire a private lawyer.10 In Caplin & Drysdale, Chartered v. United States the Court upheld a pretrial freeze of assets allegedly subject to forfeiture as the proceeds of a continuing criminal enterprise.11 The Court analyzed the freeze on the assumption that the defendant would have no other assets and so would be unable to retain the lawyer of his choice, or any retained lawyer at all, and it still found no Sixth Amendment violation.
The reason turns on ownership. The Sixth Amendment protects a defendant's ability to spend his own money on a defense, but it does not protect money the government is entitled to take. The Court reasoned that the defendant had no right to use funds that did not truly belong to him, and that the government was entitled to "separate a criminal from his ill gotten gains" and so strip the criminal enterprise of its undeserved economic power, which includes the ability to command high-priced legal talent.12 The freeze therefore limits the defendant's choice of lawyer only as a side effect of taking property the defendant had no right to keep, and a right to choose one's lawyer does not include a right to a lawyer paid for with assets lawfully claimed by the government.13
The reasoning supplies its own boundary, and Luis v. United States marks it. There the government froze assets that were not tainted by the charged crime, doing so only to ensure payment of possible fines if the defendant were convicted, and the Court held that the freeze violated the Sixth Amendment right to retain counsel.14 The assets in Caplin & Drysdale were the alleged fruits of the crime, which the government could claim as its own. The assets in Luis were the defendant's own lawfully held property, so the government had no claim to them yet and was merely seeking to preserve them against a possible later fine. The fact that moved the answer is whether the frozen money is traceable to the alleged offense.
On an exam stem, then, the first question is whether the restrained funds are tainted by the charged crime. If they are, the defendant's inability to pay a chosen lawyer is not a deprivation of counsel of choice. If they are untainted funds held only to secure a possible fine, the freeze burdens the defendant's own money and the right to retain counsel is violated. A refusal or restraint that falls within one of the limits in this section is proper, so the remedy questions that come next arise only when the deprivation was erroneous.
Indigent Defendants
The right to choose a lawyer belongs to the defendant who can hire one. A defendant too poor to retain counsel is entitled to a competent appointed lawyer, but the Constitution apparently does not let that defendant pick which lawyer the court appoints.16 The appointed lawyer ordinarily comes from a public defender office or, when that office has a conflict or does not exist locally, from the local bar, and the defendant generally must accept the court's selection.17 After appointment the lawyer owes the same loyalty, confidentiality, and zealous representation that a retained lawyer would owe, so the only difference lies in how the lawyer was chosen.18
Two features of appointment explain the limit. Appointed counsel is paid from public funds and drawn from a finite pool of lawyers, so a right to choose would let each defendant commit public resources to a personal preference and would make assignment by availability unworkable. The second feature concerns what a court can actually deliver. A court can verify that a lawyer is competent, but it cannot guarantee that a defendant and a lawyer will form a good working relationship, and a constitutional right that depended on that rapport would be one no court could ever be sure it had honored.
In Morris v. Slappy the public defender first assigned to the defendant was hospitalized, and a second public defender took over the case. The trial judge refused a continuance that would have let the first lawyer return, and the case went to trial with the replacement. The court of appeals reversed the conviction on the theory that the refusal cost the defendant a meaningful attorney-client relationship, and the Supreme Court reversed that decision, stating that "[n]o court could possibly guarantee the kind of rapport with his attorney—privately retained or provided by the public—that the Court of Appeals thought part of the Sixth Amendment guarantee of counsel."19 The guarantee ran to competent counsel, and nothing in it attached to the first lawyer in particular.
The indigent defendant does keep one decision that is personal: whether to have a lawyer at all. In Faretta v. California the trial judge appointed the public defender over the defendant's request to represent himself, and the Court held that the State may not force a lawyer on a defendant who knowingly and intelligently chooses to proceed alone, because the right to defend is personal to the accused.20 That holding addresses whether a lawyer is imposed on the defendant, and it gives an indigent defendant no power to select among the lawyers the State is willing to appoint.
The retained-counsel right described earlier shows how much turns on the source of the lawyer. In United States v. Gonzalez-Lopez the trial court erroneously refused to admit the out-of-state lawyer the defendant had hired, and that refusal was a structural error requiring automatic reversal even though the replacement lawyer was adequate.21
The one fact that moved the answer is whether the defendant retained the lawyer. Students go wrong by treating a complaint about an appointed lawyer as a retained-counsel claim, so the first question on any stem is whether the lawyer was retained or appointed. Only if the defendant retained the lawyer does the choice right exist, and only then do the later questions about erroneous refusal and remedy arise.
Conflicts of Interest
The indigent-defendant limit turns on who may choose a lawyer at all. A second limit reaches the defendant who can hire anyone: even a paying defendant has no right to a lawyer whose representation would conflict with duties the lawyer owes another client. That remains true when the defendant would rather accept the risk of divided loyalties than look for someone else.23 In Wheat v. United States the Court allowed a trial court to refuse a lawyer whose joint representation of codefendants presented a potential conflict of interest.24 The word potential matters, because the court may act before the divided loyalty has damaged the defense and need not wait for the harm to show itself.
The reason starts with what the right is for. The right to choose a lawyer is part of the general right to counsel, which exists to secure an effective advocate in an adversary system, so the choice can be limited in ways that fit that system's basic tenets.25 A lawyer pulled in two directions cannot be the advocate the right is meant to deliver. The ineffective-assistance cases show why courts take that problem seriously. In Strickland v. Washington the Court described the rule of Cuyler v. Sullivan, under which prejudice is presumed when counsel is burdened by an actual conflict of interest. It gave two reasons: the conflicted lawyer breaches the duty of loyalty, among the most basic duties counsel owes, and the effect of that corruption on the defense is hard to measure afterward.26 The Court added that trial courts can inquire early into situations likely to produce conflicts, and it pointed to Federal Rule of Criminal Procedure 44(c) as an example.27
Those observations add up to a case for acting at the outset. Once a trial is over, nobody can reliably say what a conflicted lawyer left undone, such as a plea negotiation never opened or a witness never confronted. Even the later presumption of prejudice is limited to defendants who show that counsel actively represented conflicting interests and that an actual conflict adversely affected counsel's performance.28 Refusing the lawyer before trial costs the defendant a choice, but it spares everyone a record that cannot be reconstructed. That is also why Wheat permits action on a potential conflict: the purpose of acting early is to prevent the actual one.
A defendant's offer to waive the conflict does not change the answer, and two separate reasons explain why. The first concerns timing and information. The waiver is offered before trial, when the conflict may still be hypothetical, so the defendant is accepting a risk that neither client nor lawyer can yet measure. A lawyer who represents two codefendants shows the problem. The best course for one codefendant may be to bargain with the prosecution and testify against the other, and the lawyer cannot recommend that step to one client without harming the other. The defendant who insists on that lawyer then holds a chosen lawyer who cannot fully advocate for that defendant, which defeats the reason the choice is valuable. The second reason is the court's own interest. A conviction obtained through a conflicted lawyer invites attack afterward, so the court has a stake in a trial whose result will hold, and a defendant's preference cannot waive away an interest that belongs to the court.
The fact that moved the answer is whether the lawyer's duties to someone else threaten the lawyer's ability to advocate for this defendant. Where they do, the refusal is within the court's authority, and the codefendants' waivers do not take that authority away. Where they do not and the lawyer is otherwise qualified, the conflict limit is unavailable to the court, and an unjustified refusal is the situation the remedy rules below address. Students lose points here when they treat an offer to waive the conflict as if it bound the court, or when they invoke the conflict limit against a lawyer who has no competing loyalties.
Forfeiture of Fee Assets
The limits covered so far, such as conflicts of interest, concern whether a judge may keep a particular lawyer out of the case. Forfeiture works at a different point, which is payment. The government may use forfeiture statutes to seize assets tied to a drug offense or other crime even when those assets are the only money the defendant could have used to hire a private lawyer, and the seizure does not violate the Sixth Amendment.30 No lawyer is barred from the courtroom. What changes is whether the defendant has the means to pay the lawyer the defendant wants, and the right to choose counsel does not reach a lawyer paid for from assets the government is lawfully entitled to take.
The right remains real for money that belongs to the defendant. In Caplin & Drysdale, Chartered v. United States the Court upheld a pretrial freeze of assets allegedly subject to forfeiture as the proceeds of a continuing criminal enterprise.31 The Court evaluated the freeze on the assumption that the defendant had no other assets and so could not hire the lawyer of choice, or any private lawyer, and it still found no Sixth Amendment violation. The guarantee protects a defendant's ability "to use one's own funds to mount the defense that one wishes to present."32 The word "own" in that description carries the limit.
Two ideas sit behind the result, and each does separate work. The first is ownership: the defendant had no right to spend money that did not truly belong to the defendant, because the government was entitled to "separate a criminal from his ill gotten gains."33 The second is the purpose of forfeiture itself. Stripping a criminal enterprise of its undeserved economic power includes stripping its ability to hire expensive legal talent, and that purpose would fail if the proceeds could be paid out as fees before the government claimed them. The pretrial timing follows from the same logic, since a freeze keeps the assets in place until forfeiture is decided, while a rule that let the defendant spend them in the meantime would leave nothing to forfeit. The freeze therefore narrows the defendant's choice of lawyer only as a side effect of holding property the defendant has no right to keep.
The reasoning marks its own boundary, and Luis v. United States shows where it falls. There the government froze assets that it did not claim were tainted by the charged crime, doing so only to ensure that money would be available to pay possible fines if the defendant were convicted, and the Court held that the freeze violated the Sixth Amendment right to retain counsel.34 The assets in Caplin & Drysdale were the alleged fruits of the offense, so the government's claim ran to the money itself. The assets in Luis were lawfully held property of the defendant, and the government had only a hope of a later fine. The fact that moved the answer is whether the restrained money is traceable to the alleged crime.
A related situation arose in United States v. Stein, where the government's conduct affected who would pay the fees. Thirteen tax professionals were accused of creating and marketing fraudulent tax shelters, and their employer had promised to pay for their defense. The government had taken over the employer company, and a Deputy Attorney General's memo strongly discouraged the employer from paying the promised legal fees. The district court dismissed the indictments, finding that the government had unconstitutionally interfered with the right to counsel, and the Second Circuit agreed.35 That outcome rested on the unique circumstances of the government's involvement, and it should not be read as a general limit on forfeiture. It does show that the government's power over assets is a power over tainted property, and it carries no license to pressure others into withholding money that would otherwise pay for the defense.
This limit also never authorizes a court to exclude a lawyer. Forfeiture only restrains payment, so it supplies no ground for a judge to bar a qualified lawyer whose fees come from untainted money.
The two situations differ in one respect: where the money came from and whether a court acted against the lawyer. On an exam stem the analysis can be run in three moves.
If the restraint was erroneous, the remedy rules discussed next come into play. A proper forfeiture freeze of tainted assets is not an erroneous deprivation at all, so those rules never arise.