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Opinion: A Fundamental Right Denied

As US citizens today, we sometimes may be guilty of taking our rights for granted, assuming that many of these rights are fundamental by nature. One, in particular, that we often think of as inalienable is our right to appointed counsel. After all, it was included in the Sixth Amendment to the U.S. Constitution and ratified as part of the Bill of Rights in 1791, stating that, “In all criminal prosecutions, the accused shall enjoy the right…to have the Assistance of Counsel for his defense.” The work done to have this right applied fairly and equitably, however, has been arduous, and, I believe, there is still much more work to do.

While the Sixth Amendment was ratified in 1791, the 14th Amendment, proclaiming, “No state shall…deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws,” was not ratified until 1868, 77 years later. It would be 64 years more before the Supreme Court would uphold the due process of law clause.

In 1932, in the case of Powell v. Alabama, Ozie Powell and eight other impoverished, illiterate African American teenagers were found guilty of raping two white women. The trial judge did not give the defendants time to secure counsel and all nine were sentenced to death. Backed by the International Labor Defense group and the NAACP, the teens appealed and, eventually, the Supreme Court reversed the convictions, stating that the young men were denied their constitutional right to due process when they were not provided with legal counsel at their trials. Still, at this time however, the Court had decided that counsel must be provided only in state court capital cases. It was not yet a “fundamental” right.

In 1942, in the case of Betts v. Brady, Smith Betts was indicted for robbery and, when he could not afford an attorney, he requested that the state of Maryland appoint him one. The request was denied because it was not a case of rape or murder. Betts was convicted, and he appealed his case to the Supreme Court. In a 6-3 decision, the Court upheld his conviction declaring that Betts did not have a fundamental right to an attorney. Justice Hugo Black dissented, stating that denial of counsel to indigent defendants violated the 14th Amendment equal protection clause.

It would be 1963 before Betts v. Brady was overturned and the right to counsel became a fundamental right. In the case of Gideon v. Wainwright, Clarence Earl Gideon was charged with felony breaking and entering. He asked the state of Florida to appoint him a lawyer but was denied. He was convicted and ultimately appealed to the Supreme Court who, this time, unanimously decided for Gideon, proclaiming that the 6th Amendment’s guarantee of a right to counsel applies to criminal defendants in state courts via the 14th Amendment. In the majority opinion, Justice Black stated, “From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him.” The Court also noted that “in our adversary system of criminal justice…governments, both state and federal quite properly spend vast sums of money to establish machinery to try defendants accused of crime” and that “even the intelligent and educated layman has small and sometimes no skill in the science of law.” In summary, a government that utilizes an adversarial system and taps into its vast resources to find a defendant guilty even before a trial. This might sound familiar to those of you who have been reading these pieces regularly.

As we have discussed previously, the SEC uses its vast resources to bully and intimidate 96% of its defendants into settling, according to a piece published on Of those that do go to trial, the SEC sends many to its own in-house judges, where the commission wins over 90% of the cases, as reported by The Wall Street Journal. Additionally, whenever a defendant settles, or the SEC wins a case, it issues a gag order, eliminating the defendant’s ability to defend themselves. This impacts their ability to work and earn a living, which violates their fundamental rights to life, liberty and property. Currently, however, attorneys are not provided in civil cases.

According to Civil Gideon as a Human Right: Is the U.S. Going to Join Step with the Rest of the Developed World? by Raven Lidman, the right to an attorney in civil cases is provided in the countries in the Council of Europe, Australia, Canada, Japan, Zambia, South Africa and Brazil to name a few. Additionally, according to the World Justice Project’s Rule of Law Index, the U.S. ranked 115 out of 140 countries in “accessibility and affordability of civil justice.”

As a person who truly believes we live in a great country, it is extremely disappointing to know that we are this far behind in civil justice. The manner in which the SEC yields its power is unconstitutional, but so is the inability of professionals in our field to defend themselves. This must change. The complex and everchanging rules of our industry make it difficult, even for us as financial professionals, and the limitless resources of the SEC make it almost impossible to fight back. I believe that, with attorneys as a guaranteed fundamental right, many more in our industry would contest the charges, as opposed to settling and being gagged.

What do you think? Should counsel be provided in the civil cases against the SEC and other government entities? Please email me at and tell me your thoughts. Also, I am pleased to announce the launch of my website:, which provides a repository of Publius articles in one convenient location. Visit the website and be the first to know! Sign up for occasional blog and news updates that will be delivered right to your inbox.

Thank you all for reaching out and sharing your stories. Together, we can create lasting change that truly betters our industry.

Editor’s note: The author of the preceding article is a chief executive officer in the financial services industry, who, for fairly obvious reasons, elects to share his thoughts on this subject anonymously. The DI Wire does not normally publish articles that do not disclose the author. In this instance, however, we have allowed it given the nature of the piece, the importance of open discussion and varying viewpoints, and the fact that we have personally confirmed Publius’ identity.

The views and opinions expressed in the article are those of the author and do not necessarily reflect the views of The DI Wire.

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