RIGHT TO HIRE ATTORNEY
Why should I hire an attorney? That’s one of the most frequent questions I get from prospective clients. The short answer to this question in my opinion has two parts.
First, the consequences of a criminal conviction are extreme. That’s why every criminal defendant in America has the right to hire and “be represented by an otherwise qualified attorney whom that defendant can afford to hire.” This right is embedded in your Sixth Amendment Right to Effective Assistance of Counsel.
Apart from facing jail time, convicted defendants also face fines, loss of the right to purchase firearms, possible deportation if you are not a U.S. Citizen, and loss of certain government benefits–just to name a few of the collateral consequences of a criminal conviction.
Hiring an attorney gives criminal defendants the opportunity to use their resources to help establish their innocence and avoid and unjust conviction.
The second reason is trust. Trust is the most important element in any relationship. When you hire an attorney of your choice, you are taking control of your case and hiring a professional who not only has the skill, experience, and expertise to represent you in court, but also the temperament and personality to work with you to help resolve your case in a favorable manner.
If you are facing a felony or misdemeanor charge and are considering hiring an attorney—you should definitely read this opinion. Click here for a link to that case.
SILA LUIS v. UNITED STATES (Docket No. 14-419)
A federal grand jury indicted Sila Luis (hereinafter “Luis”) on charges of committing a $ 45 million dollar healthcare fraud. However, before Luis was charged with the crime, she spent the $45 million. After she was arrested and indicted, Luis had $2 million that was unrelated (and untainted) to the healthcare fraud. That is the $2 million dollars was from legitimate and legal income and therefore “innocent” property that she wanted to use to hire an attorney of her choice.
But the trial court, at the Government’s request, prohibited Luis from using the $ 2 million dollars to hire an attorney of her choice, which effectively barred her from hiring an attorney to defend her of the serious charges. The Eleventh Circuit Court of Appeals affirmed this ruling. Luis then appealed to the United States Supreme Court.
The issue on appeal was: whether the pretrial restraint of a criminal defendant’s legitimate, untainted assets (those not traceable to a criminal offense) needed to retain counsel of choice violate the Fifth and Sixth Amendments of the United States Constitution.
The Supreme Court reversed the trial and lower appellate court and ruled for Luis and allowed her to use the $ 2 million to hire an attorney of her choice. The Supreme Court cited Gideon v. Wainwright, 372 U.S. 335 (1963) which explained the important role defense counsel plays in the criminal justice system:
“The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel.
Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence.
Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one.
He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not … know how to establish his innocence.’” Id., at 344– 345 (quoting Powell v. Alabama, 287 U. S. 45, 68–69 (1932)) “
This is very powerful stuff. The idea that a criminal defendant needs a skilled lawyer to defend him or her in court is strongly embedded in our constitution and case law. (By the way—for the reasons stated above—this is also a good explanation of why it is almost always a bad idea to represent yourself (i.e., go pro se) if you are accused of a crime. This is also why the Gideon court held that a defendant has a right to a court-appointed attorney if he or she cannot afford to hire one)
The Court also noted the limitations of court-appointed counsel. They are at times overworked, underpaid, and lack the resources to adequately defend a defendant accused of a crime.
[IMPORTANT NOTE: The Supreme Court was not bashing or knocking the role of court-appointed counsel. It was only explaining why the right of a criminal defendant to hire counsel of his or her choice should be scrupulously guarded and defended. Further, this post is not intended as an attack on court-appointed counsel. They do important work and successfully defend criminal defendants every day.]
The Court also explained that the consequences of a criminal conviction can be severe—in addition to jail time—Luis also faced substantial fines, fees, and restitution. This was another reason that the Court found should favor her ability to use the $ 2 million dollars to hire an attorney of her choice.
In short, the Supreme Court held that a defendant accused of a crime has a Sixth Amendment Right to use “innocent” property to pay a reasonable fee for the assistance of counsel.
What does this case mean for me?
“[T]he Sixth Amendment guarantees a defendant the right to be represented by an otherwise qualified attorney whom that defendant can afford to hire.” Untainted assets can be used by a Defendant to hire counsel of his or her choice.
What if I cannot afford an attorney?
If you are charged with a crime and cannot afford to hire your own attorney—DO NOT PANIC! The law is clear on what happens in these situations: the right to counsel is “fundamental” and the Government is required to provide a criminal defendant an attorney in all but “the least serious of crimes.”
What if I can afford to hire an attorney?
If you are charged with a crime and are able to hire an attorney of your choice—I strongly urge you to consider this option for the reasons stated in Luis v. United States.
GENARO R. CORTEZ
CRIMINAL DEFENSE ATTORNEY