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Attorneys' Fee Forfeitures: On Defining 'What' and 'When' and Distinguishing 'Ought' From 'Is'

NCJ Number
109436
Journal
Emory Law Journal Volume: 36 Issue: 3 Dated: (Summer 1987) Pages: 761-779
Author(s)
K F Brickey
Date Published
1987
Length
20 pages
Annotation
The question of attorneys' fee forfeitures in cases involving racketeering and other criminal enterprises is basically a policy issue, although the debate over fee forfeitures is typically structured around issues related to statutory construction and constitutional rights.
Abstract
Courts have focused on two critical questions: whether the forfeiture statutes are drafted broadly enough to reach attorneys' fees and whether Congress may constitutionally declare attorneys' fees subject to forfeiture. Both these issues have been considered in the context of the Racketeer Influenced and Corrupt Organizations Act (RICO) and the Continuing Criminal Enterprise (CCE) Statute. Those opposing fee forfeitures argue that permitting the government to seek forfeiture of assets intended for an attorney's fee destroys the balance of power in the criminal justice system. However, established sixth amendment doctrine does not mean the advance adjudication of many issues related to the provision of counsel. Thus, claims that attorneys' fee forfeitures inherently violate the sixth amendment right to counsel must be recognized as actually advocating a new constitutional jurisprudence. 70 footnotes.