U.S. Supreme Court Protects Sixth Amendment Right to Counsel of One’s Choice

March.30.2016

In a widely-awaited decision concerning the Sixth Amendment right to counsel and the government’s pretrial seizure of a criminal defendant’s assets, the U.S. Supreme Court ruled today in the case of Luis v. United States (No. 14-419).

In an opinion by Justice Breyer, joined by Chief Justice Roberts and Justices Ginsburg and Sotomayor, the Court held that “the pretrial restraint of legitimate, untainted assets needed to retain counsel of choice violates the Sixth Amendment.” The plurality found that a defendant’s constitutional right to counsel of choice outweighed the government’s interest in restraining assets for possible future forfeiture that have no connection to the alleged criminal conduct. Justice Breyer stated: “To permit the Government to freeze Luis’ untainted assets would unleash a principle of constitutional law that would have no obvious stopping place.” Justice Thomas wrote a concurring opinion agreeing with the plurality that “a pretrial freeze of untainted assets violates a criminal defendant’s Sixth Amendment right to counsel of choice[,]” but he reached the result through an analysis focused on the Sixth Amendment’s original meaning, rather than the plurality’s “balancing approach.”

The plurality’s concern over the effects a contrary rule would have on the functioning of the criminal justice system was apparent. “[T]o accept the Government’s position,” Justice Breyer wrote, “could well erode the right to counsel” to an intolerable degree, as there would be little to prevent the government from seeking in many cases to restrain all the funds in a defendant’s possession prior to trial. Because the right to counsel of choice lies at “the heart of a fair, effective criminal justice system,” the plurality concluded that the Sixth Amendment required that defendants be allowed to use their legitimate assets to pay for a lawyer.

A cross practice team of Orrick attorneys from its White Collar & Corporate Investigations practice – partner Courtney Linn – and its Supreme Court & Appellate practice – Robert Loeb and Kevin Arlyck – co-authored a key amicus brief to the Supreme Court on behalf of the National Association of Criminal Defense Lawyers (NACDL), California Attorneys for Criminal Justice and the Florida Association of Criminal Defense Lawyers. In the brief, the organizations warned the Court of the dangers of allowing the government an unfettered ability to interfere with a criminal defendant’s choice of counsel, and explained why the government’s interest in restraining untainted assets could not trump the exercise of a defendant’s “fundamental” constitutional right.

In a press release, NACDL President E.G. “Gerry” Morris noted that the “importance of this decision cannot be overstated. In oral argument before the Supreme Court, in response to a question by Justice Kennedy, the government acknowledged that its position that untainted assets can be Constitutionally restrained prior to trial could be extended to all types of crimes, supporting Justice Kennedy’s concern that this ‘[would] prevent the private bar from – from practicing law unless it did so on a contingent basis.’ The majority of the court recognized the existential threat to the Sixth Amendment the right to counsel of choice posed by the government’s position and unequivocally held that the right to counsel must prevail. This decision is a reaffirmation of the importance of the Sixth Amendment guarantee and imposes a significant limitation on the government’s expanding efforts to seize the funds of an accused before there has been any determination of guilt.”

The NACDL press release also quoted Courtney Linn: “We are extremely pleased with the Court’s decision recognizing that a defendant’s constitutional right to be represented by her attorney of choice is fundamental to the proper working of our criminal justice system. A majority of the Justices—from across the ideological spectrum—affirmed that the Sixth Amendment places meaningful limits on the government’s ability to interfere with an accused’s defense against serious criminal charges.”

The Supreme Court’s opinion is available here.

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Robert Loeb Partner, Supreme Court & Appellate, Bankruptcy Litigation

Washington, D.C.

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Robert Loeb Partner

Washington, D.C.

The breadth and depth of Bob's appellate experience, and his consistent track record of success in high-stakes matters, are why clients, including top tech and energy companies, trust him with their most important cases.

The National Law Journal’s Litigator of the Week column recently recognized Bob’s appellate major wins in energy and product liability cases for Broadreach Power and Johnson & Johnson. Bob’s recent victories also include Fifth Circuit wins for energy clients Cheniere and Eni. In the Cheniere-Midship case, Bob obtained an emergency stay from the court of appeals of the regulating agency proceedings and, then after oral argument, achieved a full victory. And for Eni, Bob convinced the Fifth Circuit to vacate a $300M judgment against Eni in a dispute with another energy company. These types of big wins in the most challenging cases show why both Chambers and Legal 500 rank Bob among the Country’s top appellate advocates.

Bob has argued before the Supreme Court multiple times (including a 9-0 victory regarding application of the Fourth Amendment to rental cars), and has filed hundreds of briefs in the Supreme Court. He has also handled cases in highest state courts in California, New York, Maine, Kentucky and New Jersey.

Before joining Orrick, Bob served as one of the leaders of an elite appellate group at the Department of Justice. There, in addition to major national security, commercial, and administrative law, Bob supervised bankruptcy appeals. At Orrick, Bob has continued to handle big ticket bankruptcy matters, such as a billion-dollar dispute over whether DHL’s claim was discharged by United’s bankruptcy, appeals from the City of Stockton bankruptcy confirmation, and a Ninth Circuit matter involving the interplay of the Takings Clause and bankruptcy law.

Bob’s recent work includes matters for Johnson & Johnson, Avon, Microsoft, Eni, Cheniere Energy, Freeport LNG, Broadreach Power, LS Power, Exxon, Medidata, Renco, MSC Cruise Line, Golden 1 Credit Union, Credit Suisse, TravelCenters of America, Gannett, and the City of Stockton.

Kevin Arlyck Associated Law Professor, Supreme Court & Appellate

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Kevin Arlyck Associated Law Professor

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Kevin has experience in a wide range of subject areas, including class actions, securities, bankruptcy, and patents. He has co-authored numerous appellate briefs, including briefs to the Supreme Court of the United States at the certiorari and merits stages, on subjects including consumer protection, Indian law, criminal forfeiture, federal court jurisdiction, and foreign sovereign immunity. Kevin has also engaged in strategic planning and motions practice at the trial stage in both federal and state courts.

Prior to joining Orrick, Kevin clerked for Associate Justice Sonia Sotomayor of the Supreme Court of the United States and Circuit Judge Robert Katzmann of the United States Court of Appeals for the Second Circuit. He has a Ph.D. in history from NYU, where he concentrated on the history of the federal courts in the early national period.