Does the Right to Counsel require qualifications?

Question

In the U.S. the Constitution has been interpreted as requiring that anyone arrested be allowed, at their request, to consult with a lawyer before being questioned, and to have one present during questioning. (Actually, that may be too strong an assertion: as best I can tell these often-called Miranda rights appear only to apply when law enforcement wishes to ensure that statements from a subject in custody be admissible in a criminal trial against the subject.)

Recently the Supreme Court ruled in United States v. Gonzalez-Lopez that not being allowed counsel of one's choice was grounds for automatic reversal of a conviction. The Right to Counsel seems well-defined for trial, but not for arrest and investigation. Therefore:

Regarding the arrest and/or custodial interrogation stage: Are there any laws that govern who can serve as counsel, and how one must be allowed to contact them?

For example, if I am arrested and:

1. I want use a friend who has no legal training as "counsel," do the police have any legal recourse from allowing me to talk to him prior to interrogation? E.g., can they insist that my counsel be a member of the bar in the state where I have been arrested?
2. I want to consult a "team" of qualified counselors. Are there legal grounds or regulations to limit the number of individuals I consult prior to interrogation, and who I have present during interrogation?
3. Can my contact with counsel be proscribed in any way? E.g., can the police limit the duration or schedule of my contact with counsel? Can they impede or delay access to me by someone who claims to be my counsel?
4. What do police have to do to facilitate my access to my desired counsel(s)? E.g., how long can I be held after requesting an attorney without being allowed to attempt to contact one? What means must I be granted to find and contact the counsel of my choice?

(I'm hoping that there is settled law on these questions, though this report suggests that, practically, police can do whatever they want until a lawyer actually finds out a client has been arrested and manages to locate him!)

Answer 1

1. I want use a friend who has no legal training as my "counsel," do the police have any legal recourse from allowing me to talk to him prior to interrogation? E.g., can they insist that my counsel be a member of the bar in the state where I have been arrested?

Yes. If they don't want you to, you cannot talk to a friend, only a lawyer. If you got an OUI, and you're not being a jerk, they will probably let you talk to whomever you want (within reason – it's not social hour). However, they can keep you from speaking to anyone but a lawyer as that person could gain information from you that can corrupt their investigation. (E.g., they arrest you with 10 lbs. of methamphetamine. They know it's "fresh" and likely came from a local lab that they suspect you of running. You cannot be allowed to talk to just anyone, as they could help get the lab broke down, moved, destroyed). In TV shows you see attorneys doing this type of illicit thing, but in reality that is very rare. When you enter the police station to speak with a client, you must present your bar card (license to practice). Friends are not allowed in, even if you value their counsel – they are not counselors!

2. I want to consult a "team" of qualified counselors. Are there legal grounds or regulations to limit the number of individuals I consult prior to interrogation, and who I have present during interrogation?

No. You can have your entire legal team with you, while preparing for court, or while being questioned, within reason. They do not need to rent a conference room to fit your 30 person legal team, but if you want 3 or so lawyers in with you, and you can afford paying each $250-$500 per hour, then have at it. Most lawyers would counsel you against this, as it creates an undue impression of limitless (hence likely illegal) funds. (But if you're a hedge fund manager, and you can show your money is legally earned, it's really your choice.) I have had occasion to go in to meet a client with co-counsel numerous times (especially in early years of practice when there is a lead attorney and second chair, so to speak, even for interrogation (which means silence by the client).

They can "impede" access to some extent, though they typically don't. They can play games with your lawyer and make them wait and make you wait, but not while they are in with you, and only for so long. Once your lawyer arrives they should leave you alone. (Some courts say once you ask for counsel they need to leave you alone, but this only really matters if they get a confession from you (or any evidence) before you've (and this is what they're hoping for) recant your request for counsel and your right to remain silent.)

3. Can my contact with counsel be proscribed in any way? E.g., can the police limit the duration or schedule of contact with counsel? Can they impede or delay access to me by someone who claims to be my counsel?

Once you've called your lawyer, they need to to let him or her meet with you for a reasonable amount of time before questioning. This is typically a quick meeting, just long enough to make sure you will not say a word. Even completely innocent people should keep their mouth shut – innocent people do occasionally get arrested and convicted!

No matter what the police say, there is no benefit, ever, from talking to them. Some police, who know it's their last shot to get a confession and know once your lawyer gets there will never talk to you again (and they have enough to go forward without your confession in the event you just start blabbing "you did it" before they can get you to invoke your rights) will keep talking to you and tell you not to comment, just to listen, even while your lawyer sits outside. They can say you're being processed, or there's a security issue, any number of reasons for short delays if they need it. They will then go on and on about "how they can maybe help you out if you talk now, but once your lawyer arrives all bets are off." These are just tricks to get you to recant/revoke your rights and to obtain your confession. You will usually see your lawyer shortly after arrival.

Can they impede or delay access to me by someone who claims to be my counsel? Yes, if your lawyer doesn't have adequate ID or cannot verify he is licensed in that state, or in another state and with local counsel. The police do not have a duty to research your lawyer's credentials, and don't have to go online and look your attorney up in the bar directory to make it easier for him or her to get to you. However, if they know the attorney, and he or she forgot his bar card, they would probably lose the confession if you confessed while they make him go get it. Most lawyers carry their bar card in their wallet, so this is not a typical problem.

4. What do police have to do to facilitate my access to my desired counselor(s)? E.g., how long can I be held after requesting an attorney without being allowed to attempt to contact one?

You have a right to contact a lawyer. There is no explicit right to a phone call, although some form of contact is implied. Hence, you can usually be held 3 hours before they have to let you "contact" someone, and this is after processing. You can be held until your lawyer gets there or until your arraignment, whatever comes first. If your lawyer doesn't show up, you will be given another opportunity by the court to get your lawyer of choice there for arraignment. If you can't, and you don't want to go forward, a public defender will move to waive your right to a speedy trial and seek a continuance until you can get your counsel of choice there. If this happens, consider getting a new lawyer.

What means must I be granted to find and contact the counsel of my choice?

This actually differs depending on where you are and what you did. Again, you have a right to counsel but they can determine how you get this done. Sometimes there are local laws that say you get any number, or 3, or 1 completed phone call to reach your counsel of choice. If there is an overriding risk that you will call someone to communicate information that could put the investigation in jeopardy or would be adversely impact their evidentiary value in some way, even when these laws exist the police can refuse you direct contact with anyone and may implement a strict "they call" policy, where they will call the lawyer and tell them, or call your family to let them know, and they can call the lawyer. They cannot hold you for a protracted amount of time without giving you some way to get word to a lawyer; it must be reasonable. There is not a lot of law out there about what is not reasonable, because the police know, and for the most part accept, that once right to counsel has been invoked they are done. There is case law saying that 3 hours is reasonable. What is not reasonable? That is fact dependent.

Answer 2

I'll address each of your four questions separately.

1. A relevant case here is Brewer v. Williams, in which the majority opinion of the Supreme Court, by Justice Stewart, stated that

   Whatever else it may mean, the right to counsel granted by the Sixth and Fourteenth Amendments means at least that person is entitled to the help of a lawyer at or after the time that judicial proceedings have been initiated against him -- "whether by way of formal charge, preliminary hearing, indictment, information, or arraignment."

   This indicates that the defendant has the right to a lawyer. It does not explicitly say that the defendant does not have the right to receive counsel from someone who is not a member of the bar, but it interprets the Sixth and Fourteenth Amendments to mean that the referenced counsel is a lawyer. This does cover events before the trial; as a contrast, Gideon v. Wainwright does not cover this period, merely the events during the trial period. The distinction there is expressed in Escobedo v. Illinois, in which the Court stated of Gideon v. Wainright,

   In Gideon v. Wainwright, 372 U.S. 335, we held that every person accused of a crime, whether state or federal, is entitled to a lawyer at trial. The rule sought by the State here, however, would make the trial no more than an appeal from the interrogation, and the right to use counsel at the formal trial [would be] a very hollow thing [if], for all practical purposes, the conviction is already assured by pretrial examination.

   Curiously, the opinion of the Court mentions a statute that was repealed:

   The statute then in effect provided in pertinent part that:

   All public officers . . . having the custody of any person . . . restrained of his liberty for any alleged cause whatever, shall, except in cases of imminent danger of escape, admit any practicing attorney . . . whom such person . . . may desire to see or consult. . . .

   Ill.Rev.Stat. (1959), c. 38, § 477. Repealed as of Jan. 1, 1964, by Act approved Aug. 14, 1963, H.B. No. 851.

2. One definition says that counsel is

   The lawyer or lawyers representing a client.

   That clearly implies that "counsel" is not synonymous with a lawyer. If you want to nit-pick, you could argue that the use of the singular form of "lawyer" in Brewer v. Williams, but I doubt that anyone would consider that a serious interpretation.

   An interesting related case for the reverse - multiple defendants for one lawyer - is Cuyler v. Sullivan. It featured a case in which two lawyers represented three defendants, and focused mainly on the idea that if a defendant shows that his/her lawyers have a conflict of interest - in other words, if their actions may harm him/her because of an interest in helping the other defendants - then this is a violation of 6th Amendment rights. Cuyler v. Sullivan did not specifically address the use of multiple lawyers, but it said nothing about multiple lawyers being intrinsically illegal, and the majority opinion wrote,

   If a defendant's retained counsel does not provide the adequate legal assistance guaranteed by the Sixth Amendment, a serious risk of injustice infects the trial itself.

   Notice the use of "adequate legal counsel". If, for some odd reason, one lawyer is not adequate, two lawyers might be necessary. I can't think of any circumstances under which that would be true, but the interpretation of the Sixth Amendment as meaning not just counsel but adequate counsel is important, though perhaps something nitpicky.

   This is also mentioned in Massiah v. United States, quoting Spano v. New York.

3. I mentioned Escobedo v. Illinois earlier (addressing the first point), though I only used it as an interpretation of Gideon v, Wainright. The importance of Escobedo v. Illinois was that it involved police refusing the defendant contact with a lawyer he had previously retained, going so far as to say that the lawyer "didn't want to see" him.

   The Court held,

   We hold, therefore, that where, as here, the investigation is no longer a general inquiry into an unsolved crime, but has begun to focus on a particular suspect, the suspect has been taken into police custody, the police carry out a process of interrogations that lends itself to eliciting incriminating statements, the suspect has requested and been denied an opportunity to consult with his lawyer, and the police have not effectively warned him of his absolute constitutional right to remain silent, the accused has been denied "the Assistance of Counsel" in violation of the Sixth Amendment to the Constitution as "made obligatory upon the States by the Fourteenth Amendment," Gideon v. Wainwright, 372 U.S. at 342, and that no statement elicited by the police during the interrogation may be used against him at a criminal trial.

   If you ask to consult your lawyer and wish to deliberate with him/her, the authorities can do nothing to obstruct that request.

4. I have no idea yet how to answer this one. I haven't yet found a relevant case.

Answer 3

(Applies to the United States)

The Sixth Ammendment to the Constitution guarantees "Counsel" to the accused brought to trial. If no accusation is brought against you, in other words, you are not arraigned, you have no right to Counsel. You only gain the right to Counsel once you are accused in a court of law.

Because of this, criminal defendants are only assigned a defender when they are arraigned. You will not be assigned a defender if you are merely arrested.

To answer your questions specifically:

1. I want use a friend who has no legal training as my "counsel," do the police have any legal recourse from allowing me to talk to him prior to interrogation? E.g., can they insist that my counsel be a member of the bar in the state where I have been arrested?

The police do not (and usually will not) allow someone else to advise you during an interrogation, unless you are a witness. If you are suspect, or have been arrested, they can hold you incommunicado until the arraignment (unless they are served with a court order, a writ of habeus corpus). Under no circumstances should you ever say anything to the police if you have been arrested, except maybe "I need to go to the bathroom". If it was me, I would say absolutely nothing and just piss on the floor if nature called.

2. I want to consult a "team" of qualified counselors. Are there legal grounds or regulations to limit the number of individuals I consult prior to interrogation, and who I have present during interrogation?

As above, you have no rights to talk to anybody before arraignment. The traditional "phone call" is purely a courtesy by the police, not a legal requirement. Normally, there is no such thing as a lawyer in an interrogation. If a lawyer shows up and demands to see you, they have to allow it. He will then tell you exactly what I just told you: say absolutely nothing to the police or to your cell mates. Any attorney that would let you be "interrogated" by the police is either a policeman pretending to be attorney or is insane and probably will be disbarred shortly.

3. Can my contact with counsel be proscribed in any way? E.g., can the police limit the duration or schedule of contact with counsel? Can they impede or delay access to me by someone who claims to be my counsel?

No. Once somebody shows up, normally the police will let them talk to you as much as they want. The reason for this is that if they do not, the person (does not have to be an attorney) can go to a judge and get a writ of habeus corpus, which would remove you from the jail entirely, which the cops obviously do not want. So, rather than force this action, they graciously allow you to have visitors.

4. What do police have to do to facilitate my access to my desired counselor(s)? E.g., how long can I be held after requesting an attorney without being allowed to attempt to contact one? What means must I be granted to find and contact the counsel of my choice?

In most jurisdictions, if you are arrested, you must be brought to court (arraigned) the next day that the court is open, which means that if it is Friday night (the worst case scenario) you might be in a holding cell until Monday morning. The police may allow you to call a lawyer over a weekend, but have no legal requirement to do so. Sometimes police will try to delay an arraignment to try to squeeze a confession out of somebody, but they are playing with fire if they do this, because it might result in the whole case being thrown out. Usually what they do is try to trick you into signing an "arraignment waiver" where you "voluntarily" agree to be held over for questioning. Obviously, a defendant would have to be a complete idiot to sign such an agreement.