CHICAGO, July 23, 2013 — When the government acts on a pretrial ex parte court order and freezes assets that the defendant needs to retain counsel, the defendant should have the right to challenge the evidentiary support and underlying probable cause for the order, argues the American Bar Association in an amicus brief filed with the U.S. Supreme Court in Kaley v. United States. 

Guaranteeing an adversarial pretrial hearing to review such challenges “is essential to protect the defendants’ Fifth Amendment Due Process rights and their Sixth Amendment right to retain their counsel of choice,” the brief states. 

In addition to constitutional concerns, the ABA points to the ethical issues of representing a defendant whose assets needed to pay the lawyer have been frozen. Citing the ABA Model Rules of Professional Conduct, such situations create a conflict of interest by converting the lawyer’s representation to a contingency fee matter, in which payment is dependent on whether the defendant is found not guilty at trial or the frozen assets are otherwise returned to the defendant. 

The brief, available online here, urges the Supreme Court to reverse the 11th Circuit’s judgment in the case, which will be heard during the court’s upcoming term. 

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