4 ms·

Well, I know if you're charged, you have a right to be represented by counsel of your choice under the 6th Amendment. https://en.wikipedia.org/wiki/Assistance_

Well, I know if you're charged, you have a right to be represented by counsel of your choice under the 6th Amendment. https://en.wikipedia.org/wiki/Assistance_of_Counsel_Clause#Choice_of_counsel https://en.wikipedia.org/wiki/Assistance_of_Counsel_Clause#C... I wonder if that extends to witnesses not charged with a crime in some way. Or can you be denied counsel of your choice under questioning?!

burkaman 10y ago
I don't know, but even if you retain that right, it seems almost obvious that you don't have the right to publicly bid for counsel. Presumably the gag order would extend to any lawyer you contact.
- matthewmarkus 10y ago
  Well, if the counsel of your choice was predefined as the one that bid the lowest in an open auction, then why would you lose that right? Could the court further restrict that right down to the specific lawyer they want representing you? I do agree that the gag order would extend to any lawyer you contacted after the public bidding process concluded.
  - burkaman 10y ago
    Why would you get to keep a right you just made up for yourself? If your random corporate process clashes with the law, the law wins. You still retain your constitutional right to counsel, you just need to contact prospective lawyers through private channels, even if that procedure conflicts with the bylaws of your board of directors. There is no clever loophole here, it's a very simple order. The law says "no [recipient] shall disclose to any person that the Federal Bureau of Investigation has sought or obtained access to information or records under this section." https://www.law.cornell.edu/uscode/text/18/2709 https://www.law.cornell.edu/uscode/text/18/2709 Here the definition of "disclose" is "whatever convoluted process you can think of". Reading further, it does say you can talk to an attorney, but that doesn't mean you can make a Craigslist post asking for lawyers with experience in the Patriot Act.
    - matthewmarkus 10y ago
      I don't necessarily agree with your reasoning; however, it looks like one's right to counsel is restricted if one is not charged with a crime: https://supreme.justia.com/cases/federal/us/352/330/ https://supreme.justia.com/cases/federal/us/352/330/ (1957) Further, it seems that Miranda only applies to custodial interrogations. https://supreme.justia.com/cases/federal/us/384/436/ https://supreme.justia.com/cases/federal/us/384/436/ (1966) I do think that if one is charged or restrained that the process might work. Of course, that's a pretty big escalation!
      - burkaman 10y ago
        Why would it work? You think if you told the judge "nothing I can do, it says right here in my employee handbook that I'm not allowed to seek legal counsel without a public bidding period" they would say "wow, you really outsmarted us this time, nice job"? If part of your job involves breaking the law, then the law compels you to not do your job. It seems like you're trying to hack in a domain that can't really be hacked, because it's not even very well defined. The spirit of the law is clear, I can't see any reason a judge would come down on your side of this. Prohibiting a bidding process does not restrict any of your rights.
        matthewmarkus 10y ago
        I have no idea if it would work. As you state, it isn't very well-defined. I imagine it would eventually depend on a clarification of the phrase "your choice."
deleted 10y ago
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burkaman 10y ago

I don't know, but even if you retain that right, it seems almost obvious that you don't have the right to publicly bid for counsel. Presumably the gag order would extend to any lawyer you contact.

matthewmarkus 10y ago
Well, if the counsel of your choice was predefined as the one that bid the lowest in an open auction, then why would you lose that right? Could the court further restrict that right down to the specific lawyer they want representing you? I do agree that the gag order would extend to any lawyer you contacted after the public bidding process concluded.
- burkaman 10y ago
  Why would you get to keep a right you just made up for yourself? If your random corporate process clashes with the law, the law wins. You still retain your constitutional right to counsel, you just need to contact prospective lawyers through private channels, even if that procedure conflicts with the bylaws of your board of directors. There is no clever loophole here, it's a very simple order. The law says "no [recipient] shall disclose to any person that the Federal Bureau of Investigation has sought or obtained access to information or records under this section." https://www.law.cornell.edu/uscode/text/18/2709 https://www.law.cornell.edu/uscode/text/18/2709 Here the definition of "disclose" is "whatever convoluted process you can think of". Reading further, it does say you can talk to an attorney, but that doesn't mean you can make a Craigslist post asking for lawyers with experience in the Patriot Act.
  - matthewmarkus 10y ago
    I don't necessarily agree with your reasoning; however, it looks like one's right to counsel is restricted if one is not charged with a crime: https://supreme.justia.com/cases/federal/us/352/330/ https://supreme.justia.com/cases/federal/us/352/330/ (1957) Further, it seems that Miranda only applies to custodial interrogations. https://supreme.justia.com/cases/federal/us/384/436/ https://supreme.justia.com/cases/federal/us/384/436/ (1966) I do think that if one is charged or restrained that the process might work. Of course, that's a pretty big escalation!
    - burkaman 10y ago
      Why would it work? You think if you told the judge "nothing I can do, it says right here in my employee handbook that I'm not allowed to seek legal counsel without a public bidding period" they would say "wow, you really outsmarted us this time, nice job"? If part of your job involves breaking the law, then the law compels you to not do your job. It seems like you're trying to hack in a domain that can't really be hacked, because it's not even very well defined. The spirit of the law is clear, I can't see any reason a judge would come down on your side of this. Prohibiting a bidding process does not restrict any of your rights.
      - matthewmarkus 10y ago
        I have no idea if it would work. As you state, it isn't very well-defined. I imagine it would eventually depend on a clarification of the phrase "your choice."

deleted 10y ago

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