§ 28.06 THE RIGHT TO REPRESENTATION BY ONE'S PREFERRED ATTORNEY

• Jurisdiction: United States

§ 28.06. The Right to Representation by One's Preferred Attorney¹⁴¹

[A] In General

The Sixth Amendment comprehends the right of a nonindigent defendant "to select and be represented by one's preferred attorney."¹⁴² Indeed, the Court has described the right to select counsel of choice as the "root meaning"¹⁴³ of the Sixth Amendment's counsel provision. The provision "commands . . . that the accused be defended by the counsel he believes to be best."¹⁴⁴

This right of a defendant to be represented by the attorney of his choice is, however, subject to significant limitations that, taken together, constitute a substantial litany. First, and perhaps most important, the Court has stated that "the right to counsel of choice does not extend to defendants who require counsel to be appointed for them;"¹⁴⁵ in short, the Sixth Amendment does not grant indigents a right to choose their appointed counsel.

Second, although defense counsel "should seek to establish a relationship of trust and confidence with the accused,"¹⁴⁶ the Supreme Court has declared that a defendant has no Sixth Amendment right to a "meaningful attorney-client relationship."¹⁴⁷ Third, a defendant is not permitted to be represented by a non-attorney, except himself.¹⁴⁸ Fourth, a defendant is not entitled to be represented by an attorney who has a conflict of interest, even if the defendant is willing to accept the risks inherent in such representation.¹⁴⁹

Fifth, a defendant "may not insist on representation by an attorney he cannot afford."¹⁵⁰ This limitation is of particular significance in view of the enactment of statutes that permit the government to seize assets, including money that would pay for an attorney, that allegedly were obtained illegally. This issue is discussed in the next subsection. Finally, the Court has "recognized a trial court's wide latitude in balancing the right to counsel of choice against the needs of fairness, . . . the demands of its calendar," and the need to ensure that trials are conducted "within the ethical standards of the profession."¹⁵¹

Notwithstanding these limitations, however, when the right to counsel of choice is improperly denied, the Sixth Amendment violation means that a resulting conviction is subject to automatic reversal without any showing of prejudice or other form of harmless-error analysis.¹⁵²

[B] Special Problem: Seizing Lawyers' Fees

Certain statutes allow the government to seize a defendant's assets prior to trial if the assets were related to illegal activity¹⁵³ or in order to ensure the defendant will have the necessary funds to pay fines or restitution if convicted of the crime.¹⁵⁴ Defendants have challenged these seizures under the Sixth Amendment, arguing that if their assets are frozen, they will not be able to hire lawyers to defend themselves. In a series of cases, the Supreme Court has set out a clear dividing line: the government may legally seize any assets that are "tainted;" such as contraband, property obtained as a result of the crime, or property that is somehow traceable to the crime.¹⁵⁵ However, the government may not seize "untainted" assets that are not connected to criminal activity, because that would undermine the defendant's "Sixth Amendment right to be represented by a . . . qualified attorney whom that defendant can afford to hire."¹⁵⁶

In two cases, Caplin & Drysdale v. United States¹⁵⁷ and United States v. Monsanto,¹⁵⁸ the Supreme Court held that the right to counsel is not violated if a court, pursuant to statute,¹⁵⁹ grants an ex parte motion by the government to freeze the defendant's assets, including assets that would be used to pay for legal representation, on the ground that they were obtained as a result of illegal drug activities. Nor is the Sixth Amendment violated by an order that any monies paid to defense counsel be recaptured if the client is convicted of such drug activities.

The Court reasoned that forfeiture statutes of the sort involved in these two cases do not impinge on a defendant's constitutional right to counsel of choice because they do not prevent the defendant from hiring any attorney whom he can afford or who is willing to represent him without assurances that he will have adequate funds. Furthermore, even if such statutes prevent him from hiring an attorney, the right to the attorney of one's choice...