I should make one other observation regarding the right to counsel-and something that I have stated in the written testimony: Even in respect to H.R. 1474, while that bill certainly does not contain the obvious Sixth Amendment problems that the administration's proposal does, I think the concern of this committee over the issue of the right to counsel as it applies in the context of forfeiture of attorneys fees and of potential criminal liability, is one that should and must be dealt with statutorially rather than in the legislative history.

And I have proposed, at page 28 of my written statement, language which I hope the committee will consider including as an amendment, or as a section of any legislation that comes out of this committee, and perhaps even as an amendment to the Comprehensive Crime Control Act. Such language would make it clear that nothing in the act is intended to interfere with the right of an accused to retain counsel of his or her choice, and that the section shall not prohibit the payment to and the receipt of a legal fee by an attorney for representation of an accused, unless the attorney has engaged in criminal conduct or has accepted the fee as a fraud or sham or to protect or further the illegal activity of another person.

That's a proper standard, for when an attorney departs from arm's-length, ethical, legal representation, he should be subject not only to the forfeiture laws but to the full weight of the criminal laws of this country. And to draw the forfeiture line at the Sixth Amendment, when ethical and honest counsel is involved we think, is an accommodation to the constitution that is appropriate and is proper.

There is, and, in my view, should be, a statutory right given to the Government to forfeit the assets of a convicted drug dealer or a convicted RICO defendant; because a law that separates him from his assets and takes the profit out of his unlawful activity is proper and is appropriate, and I applaud those aspects of forfeiture laws. But when a statutory right conflicts with a constitutional right, there has to be some balancing, some accommodation. There is no constitutional right to buy a Mercedes Benz, but there is a constitutional right to hire a lawyer of one's choice. And we don't think it's unreasonable for the committee to include this kind of language in any bill that it drafts, to make sure that those constitutional rights are protected and cherished.

That ends my remarks, Mr. Chairman, and I'm perfectly willing to answer any questions.

[The statement of Mr. Sonnett follows:]

I.
INTRODUCTION

Mr. Chairman and Members of the Subcommittee, I greatly appreciate the opportunity to appear before you today on behalf of the National Association of Criminal Defense Lawyers, which I presently serve as Third Vice-President and Legislative Chairperson.

The National Association of Criminal Defense Lawyers (NACDL) is a nationwide, voluntary bar association comprised of over 4,000 lawyers and law professors, most of whom are actively engaged in defending criminal prosecutions and individual rights,

and

concerned with the proper administration of the criminal justice system. The NACDL was founded 26 years ago to promote study and research in the field of criminal defense law, to disseminate and advance the knowledge of the law in the field of criminal defense practice, and to encourage the integrity, independence and expertise of criminal defense lawyers. The Association attempts to ensure that the rights and liberties of individuals accused of criminal offenses are protected. We pursue those goals through a variety of educational and public service activities, including national training programs, publications, committee activities, legislative action and by appearing as amicus curiae in cases which present issues of significant import to the criminal justice system. Among NACDL's stated objectives is the promotion of the proper administration of individual rights and the improvement of the criminal law, its practices and procedures.

While I appear today as a representative of the NACDL, I believe I bring a varied background and experience to the issues that are the subject of today's hearing. I am currently a senior

partner in the Miami, Florida law firm of Bierman, Sonnett, Shohat & Sale, P.A., which I co-founded in October 1972, and I specialize in the defense of federal criminal cases. Prior to that time, I served for nearly five years as an Assistant United States Attorney for the Southern District of Florida and as Chief of the Criminal Division in that office, in charge of all federal criminal prosecutions for one of the nation's busiest judicial districts. I am proud that my work as Chief Federal Prosecutor was recognized by several citations from the Department of Justice, and that I was named the outstanding South Florida Federal Employee of 1972, from among 12,500 federal employees.

In addition to serving as a Vice-President of NACDL, I also serve this year as President of the National Caucus of Metropolitan Bar Leaders, a voluntary arm of the American Bar Association which is comprised of the leadership of 42 major metropolitan bar associations throughout the country whose membership exceeds 2,000 lawyers. I am also the immediate Past President of the Florida Criminal Defense Attorneys Association and a Past President of the Dade County Bar Association. I emphasize, however, that I appear here today only on behalf of the NACDL.

As an active criminal defense attorney, I have served as lead counsel in several so-called "money laundering" trials, including cases involving Operation Bancoshares, Operation Swordfish and Operation Greenback.

II.

CONCERNS OF THE NACDL

The NACDL recognizes that drug trafficking, organized crime and the laundering of illicit profits through our nation's financial institutions are serious problems that tear at the very fabric of our democracy. We share the concerns of your Subcommittee, and we applaud your efforts to find more effective ways of combatting this national cancer.

Criminal defense lawyers have a special obligation to assist in the fight against crime, since honest lawyers who defend unpopular cases or notorious clients often have found themselves unfairly criticized by those who lack a full understanding of the nature and function of our adversary system of justice. The role of criminal defense lawyers has been tarnished unjustifiably by a few lawyers who have engaged in unethical and unlawful conduct. The NACDL is both saddened and angered that these "renegade attorneys", as they were characterized in a study prepared by the staff of the President's Commission on Organized Crime, have violated their sworn oaths as officers of the court by acting "to advance the criminal purposes of...criminal organizations". Such corrupt and dishonest lawyers, no less than corrupt bankers, accountants, airline operators, law enforcement officers or public officials must

1/ See "Materials on Ethical Issues for Lawyers Involved With Organized Crime Cases", p. 3, a staff study prepared for a lawyer-ethics symposium sponsored by the President's Commission on Organized Crime.