Friday, February 3, 2017

Freezing Funds In Vermont

The Vermont Supreme Court affirmed an attachment brought against a criminal defendant by the estates of two men (an ex-boyfriend and his son) suing her for wrongful death

This interlocutory appeal presents the question of whether the Sixth Amendment right to assistance of counsel is violated when the plaintiff in a civil wrongful death action attaches funds the defendant intends to use for her legal defense to homicide charges stemming from the death at issue in the civil case. Defendant appeals a trial court decision permitting such an attachment. We affirm.

The relevant facts are as follows. Defendant is charged with aggravated murder and two counts of murder in the second degree in the deaths of two men. Her trial is pending and a private law firm represents her in that matter. Plaintiff is the estate of one of the deceased men, which pursuant to 14 V.S.A. § 1492 has brought a wrongful death action on behalf of the next of kin. In its filing, plaintiff obtained an attachment freezing defendant’s assets, including the retainer she provided for her criminal defense.

In response, defendant filed a motion arguing that a recent U.S. Supreme Court case, Luis v. United States, __ U.S. __, 136 S. Ct. 1083 (2016), held that the Sixth Amendment to the U.S. Constitution prohibited the attachment of untainted funds a defendant wished to use to hire counsel of choice as legal representation in a criminal matter. Plaintiff, unsurprisingly, read Luis differently and argued that the Sixth Amendment prohibited only a prosecutor from attaching untainted funds to be used for criminal legal defense. Following a hearing on defendant’s motion, the trial court issued a written decision finding that, though defendant’s arguments were persuasive, Luis was inapplicable to the attachment obtained in this suit. The court read Luis for the proposition that “[t]he evil the Sixth Amendment seeks to guard against is a prosecutor civilly seizing a defendant’s money to prevent him or her from hiring an attorney. Not the court’s issuance of an attachment on funds by any creditor, where the defendant also prefers to use the money to hire a lawyer.”

After an extended effort to read the Luis precedent, the court majority holds

While we acknowledge the scope of the Sixth Amendment right to provide defendant a lawyer of her choice, if she can fund such a choice, we cannot conclude that our decision in this case will have a significant effect on the caseloads of public defenders or impair the quality of representation defendant or others would receive. As we discussed above, we see no justification for the victim to subsidize the legal costs of defendant in defending her criminal case.

Justice Robinson dissents

The majority’s approach here would give a credit card company seeking to collect a past due obligation the ability to freeze funds in a lawyer’s trust account to secure a potential judgment, while frustrating a criminal defendant’s Sixth Amendment right to counsel. How would a lawyer ever know whether a criminal defendant client’s retainer would remain available to pay for the lawyer’s representation? By eschewing a balancing test altogether, the majority avoids grappling with the severe consequences of its position with respect to a fundamental constitutional commitment...

It’s true that this ruling may limit the ability of crime victims, or any other potential civil creditor with claims against a criminal defendant, to secure potential civil judgments in their favor from the untainted assets of the defendant. Parties seeking to attach untainted assets in civil court face numerous obstacles to their ability to secure potential future judgments. They cannot attach a debtor’s homestead up to a limit of $125,000 in value, 27 V.S.A. § 101; a debtor’s interest in a motor vehicle up to $2500, 12 V.S.A. § 2740(1); or a debtor’s professional or trade books or tools up to $5000 in value, 12 V.S.A. § 2740(2). Insurance payments of various sorts, 8 V.S.A. §§ 3706-3709, unemployment compensation benefits, 21 V.S.A. § 1367, and veteran’s benefits, 38 U.S.C. § 5301, are all exempt from trustee process or attachment.   Like the statutory exemptions, defendant’s Sixth Amendment rights operate in effect as an additional exemption; defendant’s funds, whether held in her own bank account or deposited in her lawyer’s trust account, are exempt from attachment to the extent they are necessary to pay for legal fees by the lawyer of her choice. Civil litigants seeking security for potential future judgments may be burdened by this exemption, like all the others. But the weight of defendant’s constitutional claim is no less strong than these statutory exemptions.

For these reasons, I would reverse the trial court. I would treat funds reasonably necessary for defendant’s criminal defense by a lawyer of her choice whom she can afford to pay as exempt from the court’s attachment, and would authorize attachment of those funds only to the extent that they are not reasonably necessary to her criminal defense.

Justice Eaton joins the dissent.

The New York Daily News reported on the crimes. (Mike Frisch)

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