Fighting for Fees-Drug Trafficking and the Forfeiture of Attorney's Fees

Published date01 July 1988
Date01 July 1988
DOIhttp://doi.org/10.1177/002204268801800308
Subject MatterArticle
The Journal of Drug Issues, 18(3),421-436, 1988
FIGHTING
FOR
FEES-DRUG
TRAFFICKING AND
THE
FORFEITURE
OF ATTORNEY'S
FEES
John
Dombrink
James
W.
Meeker
Julie
Paik
In the past two years since the passage
of
1984
amendments as part
of
the Comprehensive Crime
Control Act, government prosecutors have included
defense counsel fees as forfeitable assets stemming
from drug trafficking
and
organized crime prosecu-
tions. This development has been described by
affected defense counsel as having an "arctic" effect
upon their relationships with clients, as an abridge-
ment
of
Sixth Amendment right to counsel, and as a
deterrent to effective lawyering in this field. Pros-
ecutors, on the contrary, have argued that a person
can neitherpurchase a Rolls Royce nor a "RollsRoyce
class
of
attorney" with proceeds
of
criminality.
This paper delineates the issues in this debate,
and their genesis, as articulated injudicial opinions;
interviews with prosecutors
and
leading defense
attorneys in Los Angeles, Miami,
and
New York City;
published articles;
and
transcripts
of
hearings held
by bar associations. In addition to the fees issue,
similar controversial issues, such as grand
jury
subpoenas
of
attorneys
and
cash reporting require-
ments placed on attorneys, are addressed. Particular
attention is
paid
to the increased adversariness in
this stratum
of
the criminaljustice system,
and
to the
impact these developments have
and
will have on the
quality
of
justice in major drug trafficking
and
organized crime cases.
John
Dombrlnk,
Ph.D., and
James
W.
Meeker,
Ph.D., J.D., are Assistant Professors in the Program in Social EcoloiY.
University of California, Irvine.
Julie
Paik
is a second year law student at the Oeorptown University Law Center. An
earlier version ofthis paperwaspresented at the annual meeting of the WeaternSociety of Criminology. Irvine California,
March I, 1986.
An earlier version of this paper
was
presented at the annual meeting of the Western Society of CrlminoloiY, Irvine
California. March 1,1986.
ClJournal ofDrug Issues, Inc. 0022-0426/88/031421-436 $1.00
421
DOMBRINK
Do
Lawyers
Serve
Organized
Crime?
In Sicily, when
the
mafioso first emerged as an identifiable social type,
Hobsbawm (1965) explains that, unlike
the
bandit,
the
mafioso didn't commit
crimes
and
then
flee into
the
mountains or another hiding place. Rather,
the
central defining characteristic of
the
mafioso was his ability to withstand
prosecution by
the
legal system, whether by intimidating witnesses or corrupting
officers of
the
court, or through good lawyering.
It
is this
last
aspect which
has
received increased attention from government authorities in this country in
various periods, especially
the
past
five years,
and
which
has
brought a level of
acrimony heretofore not seen into
the
adversarial relationship in certain signifi-
cant
organized crime
and
drug trafficking cases.
Organized crime cases traditionally invoke aspects uncommon in kind or
degree. Witnesses
are
routinely threatened with physical retaliation,
and
even
killed. The murders of Gambino family leader Paul Castellano
in
December 1985
and
of'Thamsters' Pension Fund Executive Allen Dorfman in February 1983 were
examples of potentially damaging defendants having
the
extent of damage they
could do limited. This has,
at
the
same time, been a decade where
the
Justice
Department
has
given priority
and
increased resources to
the
prosecution of drug
trafficking and suspected organized crime figures. Major cases have been brought
and
are
being brought against significant organized criminal families
and
leaders, as well as major drug traffickers. All five families traditionally associated
with New York City's organized crime have been convicted together as a planning
body in
the
so-called "Commission" case,
and
separately in individual racketeer-
ing cases. Legal actions have been brought
and
won against dominant New
England, Kansas City, Milwaukee
and
Chicago crime families
and
major
drug
trafficking organizations across
the
country.
In addition to
the
violent aspects of guaranteeing witness safety, drug
trafficking
and
organized crime cases generally raise legal issues far more
complex
than
other major crimes. Many of
the
constitutional guarantees afforded
in
the
area
of criminal procedure derive from cases involving drug traffickers
and
organized criminals (Kadish, 1967). Attorneys for accused high-level defendants
press numerous challenges to police operations
and
prosecutorial decisions on
issues ranging from consensual wiretapping
and
wiretapping to use of informants
and
sting operations. One prosecutor explains
that
lawyers' conduct ranges from
the
"merely contentious to
the
illegal." In high-level cases, where
their
resources
are
not limited, they can
chart
a very adversarial course.
At
the
same time, criminal defense attorneys are both lightning rods for police
and
prosecutor animosity
and
well-placed to assist in hiding assets or contraband
or perform or aid other illegal acts (Duffy, 1985; Friedman, 1985; Lefstein, 1986).
Because
their
conversations with clients are privileged,
their
offices
and
tele-
phones can be used to
further
criminal acts without easy detection by
the
government. A single attorney may be retained by several participants involved in
the
same criminal incident, creating problems of conflict of interest where legal
strategies
that
benefit single individuals
are
usually
at
the
expense of
the
others
involved. Lawyers
are
sometimes retained by individuals or organizations to
represent others whose interests may be in conflict with those who
are
paying for
the
representation. The very
nature
of lawyer-client relationships
has
been
deeply affected by shifts in government strategy in
the
past
fewyears. Prosecutors
422
JOURNAL
OF
DRUG
ISSUES

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT