Fighting for Fees-Drug Trafficking and the Forfeiture of Attorney's Fees

Abstract

In the past two years since the passage of 1984 amendments as part of the Comprehensive Crime Control Act, government prosecutors have included defense counsel fees as forfeitable assets stemming from drug trafficking and organized crime prosecutions. This development has been described by affected defense counsel as having an “arctic” effect upon their relationships with clients, as an abridgement of Sixth Amendment right to counsel, and as a deterrent to effective lawyering in this field. Prosecutors, on the contrary, have argued that a person can neither purchase a Rolls Royce nor a “Rolls Royce class of attorney” with proceeds of criminality.

This paper delineates the issues in this debate, and their genesis, as articulated injudicial opinions; interviews with prosecutors and leading defense attorneys in Los Angeles, Miami, and New York City; published articles; and transcripts of hearings held by bar associations. In addition to the fees issue, similar controversial issues, such as grand jury subpoenas of attorneys and cash reporting requirements placed on attorneys, are addressed. Particular attention is paid to the increased adversariness in this stratum of the criminal justice system, and to the impact these developments have and will have on the quality of justice in major drug trafficking and organized crime cases.