Lawyers Critical of Rulings on Seizure of Attorney Fees

Leading criminal defense lawyers Thursday characterized as chilling the U.S. Supreme Court’s decisions permitting the government to confiscate certain assets intended to pay them.

They predicted that the decisions will discourage private attorneys from taking cases in which the government alleges that money intended or used to pay lawyers’ fees was illegally obtained and therefore should be forfeited.

They said also that the rulings represent a shift of too much power to federal prosecutors, who will have the right to obtain pretrial court orders permitting the government to seize such assets. They said it gives unscrupulous prosecutors an economic club strong enough to force skilled adversaries out of a case, thereby depriving defendants of their constitutional right to counsel of their choice.

Defendants’ Rights Cited

“My first reaction has to deal with rights of defendants,” said Ephraim Margolin of San Francisco, president of the National Assn. of Criminal Defense Lawyers, which has 18,000 members. “The Supreme Court by a margin of one simply felt that the right to counsel of choice can be done away with” under certain circumstances.

He said the two 5-4 decisions deprive “defendants in the most complex, difficult, expensive lawsuits of services of lawyers whom they trust, who have big reputations and experience.”

The decisions, which hold that no one has the constitutional right to spend illegally obtained funds for the services of an attorney, involved two drug cases in which narcotics proceeds had been used or were intended to be used to pay attorneys. But it could apply to profits from other kinds of illegal enterprises, including money laundering and insider stock trading.

The court ruled that a defendant’s assets may be frozen even before he is convicted if there is good reason to believe that the assets were illegally obtained.

“It presumes guilt,” said Los Angeles defense attorney Howard Weitzman, best known for his successful defense of auto maker John Z. DeLorean in a drug-trafficking case.

“It also gives the government an additional power in criminal prosecutions that they just should not have,” Weitzman added.

Weitzman predicted, however, that the power will be judiciously used. “My prediction is that the good prosecutors--and there are thousands of them in the federal government--won’t abuse this opportunity that the Supreme Court has unfortunately given them.”

He said there may be cases in which there is undisputed evidence--such as from a wiretap--that a lawyer knew that his fees came from illegal profits. But he said those would be rare. “In 25 years, I’ve never had a client tell me (of illegal profits),” he said.

University of Michigan law professor Yale Kamisar said that he expects another round of litigation aimed at defining under what circumstances a lawyer may reasonably be expected to know that his fees are coming from a client’s illegal activities.

Meanwhile, Kamisar said, “The message to the lawyer is: ‘Don’t represent the defendant because you’ll lose your fee.’

“Big deal?” he asked rhetorically. “What’s wrong with the public defender? The problem is these are complicated cases where astute, experienced lawyers are most needed . . . . The public defender or even court-appointed counsel simply can’t do the thorough job of preparation that a really blue-ribbon lawyer can do . . . .

“You want the best lawyers to challenge the government, and presumably, if they succeed (in stretching or making new law), they will benefit all defendants. I guess I believe in that.”

Margolin said that “as a practical matter, it is too early to say what a given lawyer will do. But, when the first efforts to enforce the (forfeiture) law occurred . . . I was inundated with telephone calls . . . . One sticks in my mind from a small town in Ohio. The lawyer said, ‘A guy wants to pay me $15,000 to represent him on a marijuana case. Do I dare take it?’

“This is a chilling effect when a lawyer has to switch from thinking about defending the client to keeping himself from going under.”

Margolin said he turned down some complex, high-profile racketeering cases this month in expectation of the decision “for fear that my fees will be interrupted and my office will go under.”