Representing Defendants on Charges of Economic Crime: Unethical When Done for a Fee
Indiana University - Robert H. McKinney School of Law
March, 12 2012
Emory Law Journal, Vol. 48, p. 1339, 1999
As prosecutors have increasingly invoked asset forfeiture laws in their war against crime, scholars have harshly criticized the use of forfeiture laws to seize attorneys' fees. In cases in which attorneys' fees are seized, prosecutors claim that defendants are paying their lawyers with the proceeds of criminal activity. For example, drug dealers might use the profits from cocaine or heroin sales to finance their defense, or embezzlers might use the skimmed funds to defray their legal expenses.
According to many commentators, attorneys' fee forfeitures raise serious constitutional problems. If payments to attorneys may be seized by the government, criminal defendants will be greatly constrained in their ability to retain a lawyer, thereby compromising the defendants' Sixth Amendment right to counsel and undermining the fairness of the criminal justice system.
The real issue at stake is not whether prosecutors can seize attorneys' fees, but whether attorneys should be able to accept the fees in the first place. This misplaced focus reflects the fact that the attorneys' fee issue has been viewed primarily through the lens of defendants' Sixth Amendment right to counsel, without adequate consideration of lawyers' ethical obligations to decline their clients' ill-gotten gains. By taking into account lawyers' professional responsibilities as well as defendant's constitutional rights, one can come to a more complete understanding of the attorneys' fee issue. The criminal justice system can shape its ethical and legal rules not only in terms of the relationship between individual defendants and the state, but also in terms of the relationship between individual defendants and their lawyers.
When a lawyer's moral duties are adequately considered, it becomes clear that it is almost always unethical for attorneys to accept fees for defending individuals charged with economic crimes. Such individuals should have to rely on court-appointed counsel (or pro se representation) for their legal defense. This conclusion rests on the important moral ground that lawyers may not traffic in the ill-gotten gains of their clients, which means that lawyers cannot accept payment when there is good reason to think that at least some of the payment comes from illicit funds.
Number of Pages in PDF File: 38
Keywords: criminal forfeiture, attorneys fees
JEL Classification: K14, K42
Date posted: March 13, 2012