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In Caplin & Drysdale v. United States, 491 U.S. 617, 109 S. Ct. 2646, 105 L. Ed. 2d 528, 57 U.S.L.W. 4836 (1989), the Supreme Court held that assets seized in a civil forfeiture springing from criminal charges could not be used to pay criminal defense attorney fees. The Court held that this was because these assets deemed to be forfeited to the government under the legal fiction that the forfeiture related back to the date the crime was committed. Justices O’Connor, Scalia, and Kennedy, JJ., joined. Blackmun, J., filed a dissenting opinion, in which Brennan, Marshall, and Stevens, JJ., joined, stating:

(cont’d) Without the defendant’s right to retain private counsel, the Government too readily could defeat its adversaries simply by outspending them. *fn13 The right to privately chosen and compensated counsel also serves broader institutional interests. The “virtual socialization of criminal defense work in this country” that would be the result of a widespread abandonment of the right to retain chosen counsel, Brief for Committees on Criminal Advocacy and of the Association of the Bar of the City of New York et al. as Amici Curiae in No. 88 454, p. 9, too readily would standardize the provision of criminal defense services and diminish defense counsel’s independence. There is a place in our system of criminal justice for the maverick and the risk taker and for approaches that might not fit into the structured environment of a public defender’s office, or that might displease a judge whose preference for nonconfrontational styles of advocacy might influence the judge’s appointment decisions. See Bazelon, The Defective Assistance of Counsel, 42 U. Cin. L. Rev. 1, 6 7 (1973); S. Kadish, S. Schulhofer, & M. Paulsen, and its Processes 32 (4th ed. 1983); cf. Sacher v. United States, 343 U.S. 1, 8 9 (1952) (“The nature of the proceedings presupposes, or at least stimulates, zeal in the opposing lawyers”). There is also a place for the employment of “specialized defense counsel” for technical and complex cases, see United States v. Thier, 801 F.2d 1463, 1476 (CA5 1986) (concurring opinion), modification not relevant here, 809 F.2d 249 (1987). The choice of counsel is the primary means for the defendant to establish the kind of defense he will put forward. See United States v. Laura, 607 F.2d 52, 56 (CA3 1979). Only a healthy, independent defense bar can be expected to meet the demands of the varied circumstances faced by criminal defendants, and assure that the interests of the individual defendant are not unduly “subordinate . . . to the needs of the system.” Bazelon, 42 U. Cin. L. Rev., at 7. In sum, our chosen system of criminal justice is built upon a truly equal and adversarial presentation of the case, and upon the trust that can exist only when counsel is independent of the Government. Without the right, reasonably exercised, to counsel of choice, the effectiveness of that system is imperiled. B Had it been Congress’ express aim to undermine the adversary system as we know it, it could hardly have found a better engine of destruction than attorney’s fee forfeiture. The main effect of forfeitures under the Act, of course, will be to deny the defendant the right to retain counsel, and therefore the right to have his defense designed and presented by an attorney he has chosen and trusts. *fn14 If the Government restrains the defendant’s assets before trial, private counsel will be unwilling to continue, or to take on, the defense. Even if no restraining order is entered, the possibility of forfeiture after conviction will itself substantially diminish the likelihood that private counsel will agree to take the case. The “message [to private counsel] is ‘Do not represent this defendant or you will lose your fee.’ That being the kind of message lawyers are likely to take seriously, the defendant will find it difficult or impossible to secure representation.’” United States v. Badalamenti, 614 F. Supp., at 196.

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