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


​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.