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Forfeiture of Attorney Fees Under RICO's (Racketeer Influenced and Corrupt Organizations Act) New Amendments

NCJ Number
117452
Journal
Saint Louis University Law Journal Volume: 32 Issue: 1 Dated: (Fall 1987) Pages: 199-217
Author(s)
D T Butsch
Date Published
1987
Length
19 pages
Annotation
Legitimate payments to attorneys for legal services should be exempt from forfeiture under the Racketeer Influenced and Corrupt Organizations Act (RICO).
Abstract
The forfeiture of tainted assets to the government for public use has engendered widespread public support of RICO's forfeiture mechanisms. The U.S. District Court in the Southern District of New York determined that attorneys' fees were subject to government forfeiture. Such a policy could deter attorneys from accepting cases brought under RICO, thus threatening the defendant's right to counsel. Recent court decisions have rejected the New York district court's reasoning. In United States v. Rogers, the court observed that subjecting attorney fees to the forfeiture provision of RICO would undermine the principal goals of the adversary system by enabling the government to exclude competent defense counsel as it chooses. Other courts have determined that only when property has been transferred to an attorney as part of a sham or fraudulent transaction, or when counsel is merely acting as a nominee for the defendant, may such property be subject to forfeiture. Congress should codify the exclusion of attorney fees from forfeiture, excepting fraudulent and sham attorney-client transactions. 104 footnotes.