Supreme Court to Consider the Fungibility of Lawyers
April 17, 2006
Any self-respecting lawyer has probably said it, or at least thought it:
"Nobody can represent my client better than I can."
On Tuesday the Supreme Court takes up a Missouri case that could
enshrine that conceit in constitutional law. The Court in United States
Gonzalez-Lopez will decide whether and to what extent a paying defendant
has an enforceable Sixth Amendment right to the lawyer of his
or her choice.
For a profession that often takes a beating, the briefs on the
defendant's side of the case are an elixir, lyrically praising the
special quality of
individual lawyers and insisting they are not fungible like eggs or
oranges. The briefs reach back in time to the famed 1735 trial of John
Zenger, who was denied his choice of lawyers by a biased judge.
But beyond the paean to the legal craft, the case could have important
courtroom consequences. Defense lawyers fear that if the Court uses
the case to weaken the right to counsel of choice, it will become easier
for prosecutors, with the cooperation of judges, to knock off expert
defense lawyers with national practices in favor of less aggressive
hometown adversaries who may fear antagonizing the judge.
In the drug prosecution before the Court, for example, the Missouri
federal trial judge was so intent on keeping a California specialist
representing the client that she consigned the lawyer to the audience
section and posted a U.S. marshal to stand between the lawyer and his
The Court in the past has recognized a general right to counsel of
choice in cases such as the famous 1932 Scottsboro Boys decision, Powell
v. Alabama. In that ruling the Court said, "A defendant should be
afforded a fair opportunity to secure counsel of his own choice." But
issue does not arise often, leaving the scope and potency of the right
The defense bar, encouraged by recent victories in other Sixth Amendment
cases, is hoping the Court will breathe new life into the right.
"When you are on trial, you are entitled not just to a competent job but
a competent job done by the lawyer you choose," says Quin Denvir,
the noted former federal public defender who wrote a brief in the case
for the National Association of Criminal Defense Lawyers. Denvir is
of counsel at Rothschild Wishek & Sands in Sacramento.
Davis Wright Tremaine partner Jeffrey Fisher, the lawyer who has won two
recent Sixth Amendment cases and will argue for the defendant
on Tuesday, also says: "It's not about the lawyer. It comes back to the
defendant's right to decide what kind of defense he or she wants."
Especially in a case in which the defendant does not testify, Fisher
adds, "In many ways, the lawyer is the defendant -- the defendant's
ego -- and the personality and the style and the hundreds of things a
lawyer does make a difference."
Fisher argues that when a judge improperly rejects a defendant's choice
of counsel, that refusal amounts to a structural defect that should
result in an automatic reversal of the conviction. That rule already
applies in five federal circuits. If, as the government urges, the
Court makes it harder for defendants to reverse a conviction in such a
case, Fisher worries that prosecutors will begin to routinely seek the
removal of opposing counsel in hopes of securing a less skilled
adversary as a replacement.
ACCEPT NO SUBSTITUTES
In the nasty dispute that is before the high court, it was the judge,
not the prosecutor, who wanted the client's preferred lawyer off the
Defendant Cuauhtemoc Gonzalez-Lopez was arrested by federal agents in
St. Louis in 2002 when a drug dealer who was cooperating with
the government lured him into what appeared to be a drug sale.
Gonzalez-Lopez had no drugs on him but had $10,000 in cash. He was
indicted for conspiring to distribute marijuana.
For reasons not clear from the record, Gonzalez-Lopez's family hired San
Antonio lawyer John Fahle to represent him. Fahle appeared at
Gonzalez-Lopez's arraignment but did not meet with him in jail or return
his phone calls, leaving his client "increasingly despondent" about
his defense, according to Fisher's brief.
Following up on a recommendation from a fellow inmate, Gonzalez-Lopez
decided to hire Joseph Low IV, a Long Beach, Calif., attorney
and former Marine who specializes in aggressive defense against drug
conspiracy charges and against "oppression by federal and state
government." On his Web site, www.aggressivecriminaldefenselawyers.com,
Low offers, "If you are unhappy with your current attorney
because they will not return your phone calls ... call Mr. Low and
receive some free advice."
When Gonzalez-Lopez called, Low promptly flew to Missouri to meet with
him and was hired soon after. Both Low and Fahle appeared
before a magistrate at a suppression hearing in Gonzalez-Lopez's case in
March 2003. The magistrate at first accepted Low's entry into the
case but rescinded it after Low passed notes to Fahle during the hearing
-- allegedly a violation of a local rule restricting the
cross-examination of witnesses to only one lawyer.
In an interview last week, Low said he was frustrated at the 2003
hearing because Fahle was not questioning a witness probingly enough. "I
had done a lot of homework, so during the hearing I'm going nuts," Low
said. "Sure, I passed him notes." But he said common practice does
not violate any court's rules that he knows of. Fahle could not be
reached for comment.
After the hearing, Gonzalez-Lopez informed Fahle he wanted Low to be his
sole lawyer. But when Low sought admission pro hac vice,
Judge Jean Hamilton of the Eastern District of Missouri refused without
explanation -- not once but twice. An appeal by Low also failed.
Why did the door keep shutting in Low's face? Low is reluctant to guess,
but he said that among defense lawyers with a national practice, the
phrase "home cooking" has a special meaning: a judge's preference for
local lawyers over outsiders. "Is that what happened here? I don't
know," Low said cautiously.
Meanwhile, fellow counsel Fahle was getting annoyed with Low's continued
involvement in the case. Even as Fahle filed notice that he,
himself, was withdrawing from the case, he asked the court to sanction
Low for violating the rule against talking to someone else's client
Hamilton agreed to sanction Low and in the process revealed why she had
refused to allow him to represent Gonzalez-Lopez. Low, she said,
had engaged in similar conduct -- talking with someone else's client --
in another case before her. The judge ordered the trial to proceed with
new and local counsel. Gonzalez-Lopez hired Karl Dickhaus, a St. Louis
lawyer best known for representing plaintiffs in "junk fax" litigation.
He had never tried a federal criminal case.
Dickhaus asked the judge if Low could sit with him at trial, but the
judge consigned Low to the audience section of the courtroom and said
he could have no contact at all with Dickhaus or Gonzalez-Lopez during
the trial -- even going so far as to order a U.S. marshal to stand
between Low and the defendant.
Dickhaus called only one witness, and Gonzalez-Lopez was found guilty on
the drug conspiracy charge. On appeal, the 8th U.S. Circuit
Court of Appeals vacated the sanctions against Low and reversed the
Finding that the judge had no justification for refusing to allow Low to
represent Gonzalez-Lopez, the 8th Circuit panel said the defendant's
Sixth Amendment rights had been violated. Moreover, the panel held that
the violation amounted to a "structural error" in the trial process
so serious that it warranted automatic reversal of the conviction. Less
serious violations are subject to "harmless error" analysis, in which
defendant must show that the defect actually prejudiced the trial's
outcome. But the 8th Circuit said no such showing was needed.
TESTING THE LIMITS
In his appeal to the Supreme Court, Solicitor General Paul Clement said
reversal should not be so easy. The right to counsel of one's choice is
limited, Clement asserted, and "lies at the periphery of the Sixth
Amendment, not at its core." As a result, a defendant must show
resulted from the removal of the first-choice lawyer before winning
reversal. "There is no basis for saying that a trial is inherently
unfair if a
defendant is deprived of his counsel of first choice, and thus no basis
for presuming prejudice," Clement told the Court in the government's
But the hurdle of proving prejudice -- akin to proving ineffective
assistance of counsel -- is too high, says Fisher, and will encourage
prosecutors to make baseless motions to disqualify defense lawyers they
would rather not face. So long as the replacement lawyer is
minimally competent, Fisher says, such a move would withstand challenge
under the solicitor general's proposed rule.
For Fisher, this week's high court appearance marks the fourth Sixth
Amendment case he has argued before the Court in his brief legal
career. Fisher, who clerked for Justice John Paul Stevens from 1998 to
1999, made a name for himself two terms ago by winning two major
Sixth Amendment cases -- one, Blakely v. Washington, on sentencing
guidelines and the right to a jury trial, and the second, Crawford v.
Washington, on the confrontation clause. He argued Davis v. Washington,
another confrontation clause case, last month; the decision is
"I can't seem to get away from them," Fisher says, laughing, though he
adds that in the fall he will argue a telecommunications case. He is
also leaving Davis Wright Tremaine and accepting a teaching position at
Stanford Law School. Stanford's Supreme Court litigation clinic
assisted Fisher in the Gonzalez-Lopez case.