Forfeiting Defense Attorneys' Fees: Applying an Institutional Role Theory to Define Individual Constitutional Rights

66 Pages Posted: 14 Sep 2016

See all articles by Morgan Cloud

Morgan Cloud

Emory University School of Law

Date Written: 1987

Abstract

Two federal laws, the Racketeering Influenced and Corrupt Organizations Statute (RICO) and the Continuing Criminal Enterprise Statute (CCE), authorize criminal forfeiture of the proceeds of drug trafficking and racketeering activities. Both statutes permit forfeiture not only of property actually held by RICO and CCE defendants, but also may reach assets that these defendants owe or have transferred to third parties. The United States Department of Justice maintains that lawyers fall into this category of third parties, and the Department has sought the forfeiture of fees paid or owed to defense attorneys for professional services rendered on behalf of their clients.

In this Article, Professor Morgan Cloud argues that forfeiture of defense attorneys' fees under RICO and CCE would violate a defendant's right to counsel under the sixth amendment. To reach this analysis, Professor Cloud employs a dualistic model that scrutinizes the impact of government conduct both upon the rights of individual defendants and upon the activities of defense counsel as a class. He finds that fee forfeitures would restrict the ability of defense attorneys to perform their institutional role of guaranteeing that the adversary system of justice operates properly. Cloud thus concludes that courts should reject the Justice Department's broad interpretations of the RICO and CCE forfeiture provisions.

The right to have the assistance of counsel is too fundamental and absolute to allow the courts to indulge in nice calculations as to the amount of prejudice arising from its denial.

Suggested Citation

Cloud, Morgan, Forfeiting Defense Attorneys' Fees: Applying an Institutional Role Theory to Define Individual Constitutional Rights (1987). Wisconsin Law Review, 1987. Available at SSRN: https://ssrn.com/abstract=2836675

Morgan Cloud (Contact Author)

Emory University School of Law ( email )

1301 Clifton Road
Atlanta, GA 30322
United States

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