U.S. Supreme Court

ABA supports right to hearing when courts freeze assets needed to pay counsel

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The ABA is supporting the right to a pretrial hearing to challenge court orders freezing assets that a defendant needs to retain counsel.

The ABA filed an amicus brief in the Supreme Court case of pharmaceutical sales representative Kerri Kaley and her husband, Brian Kaley, who were accused of conspiring to sell stolen prescription medical devices on the black market. They want to use frozen funds to pay their lawyers and are seeking a pretrial hearing.

The ABA argues that the defendants should have the right to challenge the evidentiary support and underlying probable cause for court orders in such cases, according to a press release. The ABA’s brief is available here (PDF).

A pretrial hearing is needed to “protect the defendants’ Fifth Amendment due process rights and their Sixth Amendment right to retain their counsel of choice,” the ABA says in the brief.

“When prosecutors seek an ex parte pretrial restraining order freezing assets that a defendant needs to pay counsel of choice, the restraining order is a concern not only for the defendant, but for counsel, the courts and the criminal justice system,” the ABA brief says.

“If there is no pretrial adversarial hearing at which the defendant can contest the evidentiary support and probable cause determination for the restraining order, the defendant’s counsel must continue the representation pro bono or must withdraw, because the freezing of assets will have caused the attorney-client relationship to be converted into a contingency fee arrangement prohibited by the attorney ethical rules of every jurisdiction in the United States.”

The case is Kaley v. United States.

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