NCJ Number
115810
Journal
Criminal Justice Journal Volume: 10 Issue: 2 Dated: (Spring 1988) Pages: 217-272
Date Published
1988
Length
56 pages
Annotation
Opponents of the Racketeer Influenced and Corrupt Organization (RICO) amendments to the Organized Crime Control Act argue that forfeiture provisions have forced changes in the attorney-client relationship.
Abstract
It is argued that these amendments threaten the sixth amendment rights of clients, cause attorneys' fees to be forfeit, produce actual and potential conflicts of interest, and result in the actual or potential disqualification of the defense attorney. At the very least, they create a conflict between the attorney's interest in avoiding loss of fees and the duty to represent the client's interests vigorously. The conflicts between the Government and the defense bar as to forfeitability of fees derived from illegally attained assets mirror the struggle of constitutional and procedural issues against the necessities of basic professional ethics. Unfortunately, to date, the courts have been concerned largely with the former issues, particularly due process and sixth amendment matters, and less with the latter. Most importantly, the role of the attorney's knowledge as to the source of fee assets that may or may not be forfeitable has only received cursory consideration by the courts. It seems obvious that in fee forfeiture disputes a hearing should be held to determine what the defense attorney knew and when he or she knew it. In future cases, courts should realize that underlying the legal issues are issues related to the professional conduct of attorneys that also need to be addressed. 374 footnotes.