Hands Off! Supreme Court Rules Defendants May Use Innocent Assets to Hire Lawyers

| Justin R. Cochran

Every defendant is presumed innocent until proven guilty in a court of law. And the Sixth Amendment to the Constitution provides a defendant has the right to counsel of his or her own choosing. These rights are foundational to our criminal justice system.

However, prior to the Supreme Court’s decision yesterday in Luis v. United States, the government was able to undermine these basic rights. In cases involving conspiracy, healthcare fraud, and banking fraud, federal statutes allowed the government to seek a pretrial restraining order preventing defendants from using their innocently obtained assets to retain counsel.

As a result, executives faced with large-scale government investigations and complex criminal indictments in these heavily-regulated industries could not rely on their legitimate assets to hire their own lawyers. Instead, these defendants, now rendered indigent, would have to rely on publicly-paid counsel, including overburdened and underpaid public defenders.

But defendants involved in a criminal matter can now breathe easier, because in Luis, the Court ruled that innocent assets are out of the government’s reach prior to trial, because pretrial restraint interferes with a defendant’s Sixth Amendment right to counsel.

In the Luis case, a federal grand jury in the Southern District of Florida had indicted Sila Luis for her role in an alleged Medicare fraud scheme that included kickbacks to patients who enrolled with her home healthcare companies.

The government brought a civil action to restrain Luis’s assets prior to her criminal trial. In essence, the government sought an order preserving Luis’s innocent assets so that they would be available to cover the costs of forfeiture and restitution if she was convicted.

But as the Supreme Court questioned, if the right to counsel includes, as it does, the right to be represented by a qualified attorney one can afford, how are defendants supposed to pay for an attorney when their innocent assets are frozen?

In making a distinction between “what is yours and what is mine,” the Court took significance in that the government had no right to innocent, as opposed to allegedly “tainted,” assets. And although the distinction between the two may be difficult to ascertain, the law has certain rules in place to distinguish them.

Many officers, directors, executives and senior management have indemnification and advancement rights or insurance coverage to help alleviate the significant cost associated with a competent criminal defense during an investigation, and if it comes to it, trial. But if those resources are unavailable, defendants can now comfortably utilize innocent assets in retaining an attorney of their choice.

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