Mr. Chairman and Members of the Subcommittee: My name is James M. Russ. I am an attorney engaged in the private practice of law. My office is located in Orlando, Florida. The I appear before you today on behalf of the 315,000 lawyers and judges of the American Bar Association to present to you the Association's views on the forfeiture of attorneys' fees under federal criminal statutes. Association would like to thank you for the opportunity to appear at this hearing. It believes the subject being considered, the use of federal criminal statutes to seek the forfeiture of attorneys' fees, is very important. The Association's position on this matter is contained in a policy adopted by the ABA House of Delegates in July 1985. I am a member of the ABA Criminal Justice Section Committee that initiated the report and recommendation that lead to the policy's adoption. A copy of it and its accompanying report are attached. It is important to recognize that the ABA does not oppose, in all instances, the forfeiture of monies or "fees" received by attorneys. There are legitimate circumstances under which monies received by attorneys should be subject to forfeiture. For example, the ABA does not oppose forfeiture of attorneys' fees where there are reasonable grounds to believe that an attorney has engaged in criminal conduct. Furthermore, the ABA does not oppose forfeiture in cases where an attorney has accepted a fee as a fraud or a sham to protect the client's illegal activity. The ABA, however, strongly oppoSE S forfeiture of fees earned by an attorney in the legitimate representation of a client. The practice of United States Attorneys seeking the forfeiture of attorneys fees was greatly spawned by provisions enacted last year as part of the Comprehensive Crime Control Act of 1984. Though the language of the Act makes no direct reference to forfeiture of attorneys' fees upon a client's conviction, in some instances it is being used in pursuit of that purpose. The key language is found in 18 U.S.C. 1963(c), which reads: All right, title, and interest in property The language in the Comprehensive Drug Abuse Prevention and Control Act, 21 U.S.C. 853(c), as amended by the Comprehensive Crime Control Act of 1984, is identical. This provision, if not scrupulously interpreted, holds the potential of subjecting to forfeiture the fees of virtually every attorney who undertakes to represent a client charged with a crime covered by the Act if the client is convicted, regardless of whether the fees were paid prior to or after the conviction. It is important to recognize that the language of the Act could be interpreted so as to not limit forfeiture to instances where an attorney receives money after the issue of forfeitability already has been litigated and the money has been found to be forfeitable. An argument could be made that the Act reaches back and causes forfeiture of attorneys' fees retroactively in every instances where an attorney received the fees, having some reason to suspect that the money may be subject to forfeiture. The key phrase in the statute is "reasonable grounds." The language of the Act gives no guidance on what is to be considered "reasonable grounds." "Reasonable grounds" could be claimed to arise from confidential disclosures made by the client to assist the attorney in preparing a trial defense. It could even be said to exist from the fact that the Government has charged the client with a crime covered by the Act, the attorney being held to be on notice that the Government does not charge citizens with criminal activity without "reasonable grounds" to believe that the accused is guilty. Charges which invoke forfeiture generally deal with complex crimes, such as RICO and continuing criminal enterprises. These cases require extensive trial preparation by the defense and are usually characterized by lengthy. trials, sometimes lasting several months. Few attorneys are able or willing to risk the financial devastation resulting from the potential forfeiture of the fees they have earned during the course of representing persons charged with forfeiture offenses. Proponents of attorneys' fees forfeiture maintain that the Act does not abridge a defendant's right to counsel because an appointed attorney, such as a public defender, is always available. The American criminal justice system, however, was founded on representation by private attorneys. The concept of appointing attorneys at public expense to represent defendants developed only as a means of providing representation to indigents who cannot afford a private attorney. Our traditional preference for private counsel personally selected by the defendant is stood on its head by the argument that appointed counsel is an acceptable substitute when private counsel cannot be retained because of counsel's fear of potential fee forfeiture. Even if the appointment of a public defender would be an acceptable solution to the problem, it is not at all clear how this solution would fit into the existing procedure. Generally, a defendant has to establish that he is indigent in order to qualify for the appointment of a public defender. A solvent defendant, who cannot persuade a private attorney to represent him due to the attorney's fear of fee forfeiture, would not qualify for appointment of a public defender under the Criminal Justice Act of 1964, 18 U.S.C. 3006A(b). It is difficult to ascertain the logic and justification of the government's seizing the fees paid to private defense counsel and depositing them in the general fund of the U.S. Treasury, only to subsequently draw from the general funds to pay the salary of public defenders. Why cause forfeiture of attorneys' fees in the first place? If the response is that a public defenders' salaries are less than the fees of a private attorneys retained to prepare a thorough defense and conduct an extensive defense investigation, then it is apparent that forfeiture is nothing more than a weapon which a prosecutor can use to destroy the individual's choice in making a personal judgment as to how to use funds to select a quality of defense acceptable to him or her. The proponents of attorneys' fee forfeiture argue that a person who has obtained income from crimes has no right to use that income to pay an attorney. Furthermore, they assert that an attorney who accepts money, having reason to suspect it might have been derived from criminal activity has no right to keep it. These precepts may at first seem fundamentally fair. However, when they are strictly applied as justification to bring about the forfeiture of attorneys' fees, it cannot be ignored that the specter of forfeiture will cause private defense counsel to refuse to accept these cases - thereby depriving the innocent, as well as the guilty, of the right to choose an attorney. Ultimately, the question mut be answered as the whether the forfeiture of legitimately earned attorneys' fees is worth this consequence. Less enlightened systems of justice may dismiss the significance of protecting innocent persons and assume that all criminal defendants are guilty. However, our system operates on a strong presumption of innocence. |