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Suppose a jurisdiction in the United States wanted to pass a law limiting the amount of money that a defendant could spend on counsel, to try to prevent a very wealthy person from assembling a dream team of the best lawyers in the world and getting much better representation than the average person, or making a joke of the whole proceeding, as we've seen in some high profile cases.

I suspect this would not be constitutional, but why not, specifically?

  • Would that not ultimately depend on the constitution or other governing law in the jurisdiction? Seems unlikely that a general any-jurisdiction answer could exist. – DavidSupportsMonica Jul 23 at 18:30
  • I meant the constitution in the United States, but let me update the question to clarify that. – Joshua Frank Jul 23 at 20:08
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    @sharur In the US, class action suits are frequently criticized for returning little to the claimants on a per-person basis, while providing large returns to the lawyers. – DavidSupportsMonica Jul 23 at 20:41
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    @sharur: The OJ Simpson trial is widely viewed as having been a media circus, in which Simpson had 11 lawyers, for whom he was paying $50,000 per day (en.wikipedia.org/wiki/Dream_Team_(law)) and they were able to pick apart and overwhelm the prosecution. – Joshua Frank Jul 23 at 21:37
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    For criminal cases, the Sixth Amendment guarantees the right to assistance of counsel. Forbidding someone from having the counsel of their choice, even when they can pay for it, would probably be seen as infringing this. – Nate Eldredge Jul 23 at 22:22
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No.

The Sixth Amendment to the United States Constitution protects a criminal defendant's right "to have the assistance of counsel for his defense."

The U.S. Supreme Court interprets this to mean that the government cannot interfere with "the individual's right to spend his own money to obtain the advice and assistance of ... counsel.” Caplin & Drysdale, Chartered v. United States, 491 U.S. 617, 626 (1989).

For instance, 18 U.S.C. § 1345(a)(2) allowed the federal government to freeze assets of "equivalent value" to that which a person is accused of obtaining through health-care or bank fraud.

When the government tried to use that law to stop a defendant from using the money to hire an attorney, the Supreme Court said it was unconstitutional, holding that "The constitutional right at issue here is fundamental: 'The Sixth Amendment guarantees a defendant the right to be represented by an otherwise qualified attorney whom that defendant can afford to hire.'" Luis v. United States, 136 S. Ct. 1083, 1089 (2016).

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  • Aren't occasional limits on how much lawyers can charge per hour? This effectively puts some limits on the amount they can spend on their defense. – grovkin Jul 24 at 1:50
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    @grovkin I don't understand. If I have $100 to spend, telling my lawyer he can only charge me $50/hour doesn't mean I can't spend all $100. It just means I get more hours of representation. – bdb484 Jul 24 at 2:50
  • if you cap legal fees at $300/hour, that means you can only spend 300*16*(number of associates the law firm representing you has). this isn't about denying representation to a pickpocket. i remember it being discussed in the context of capping the fees that lawyers could charge for y2k cases. i don't remember the exact amount which was proposed, or maybe even passed, but it was based on some hourly wage. – grovkin Jul 24 at 7:23
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    You can always pay your attorneys to work more hours or hire more attorneys. I guess you could draw up an example of someone so rich they could afford to exclusively retain every lawyer on the planet, but I don't think it would be particularly helpful. – bdb484 Jul 24 at 15:46
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    I'd love to hear what led to that downvote. – bdb484 Jul 24 at 22:19
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I don't think we know for sure. There's a lot of strong evidence that such a law would be held to be unconstitutional as violating the First Amendment. See Citizens United v. FEC and the various cases cited there.

The logic is very much the same. In Citizens United, the money was spent to influence an election. Here, the money would be spent to influence a lawsuit. The rationale of the law is pretty much the same, preventing undue influence, preventing the appearance of corruption, and so on.

Here's what the Supreme Court said about expenditure limits for campaigns in Buckley v. Valeo, "The First Amendment requires the invalidation of the Act's independent expenditure ceiling, its limitation on a candidate's expenditures from his own personal funds, and its ceilings on over-all campaign expenditures, since those provisions place substantial and direct restrictions on the ability of candidates, citizens, and associations to engage in protected political expression, restrictions that the First Amendment cannot tolerate."

It would be quite surprising if this were not extended to expenditures for private counsel. But, of course, that doesn't mean it's a sure thing.

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