Rethinking the Ethical Ban on Criminal Contingent Fees: A Commonsense Approach to Asset Forfeiture
Godfrey, Lindsey N., Texas Law Review
On Thursday, October 7, 1999, financier Martin R. Frankel was indicted on thirty-six counts of fraud, money laundering, and racketeering.1 A fugitive for three months, Frankel was captured in September of 1999 and placed under arrest in Germany on charges of carrying a false passport.2 According to Frankel's former lawyer, Hugh F Keefe, the financier's assets have been frozen and, as a result, he is now represented by a public defender.3
Mr. Frankel's situation is not unusual. Since passage of the Comprehensive Forfeiture Act4 in 1984, the assets of certain criminal defendants have been subject to seizure before trial.5 A defendant's intention to use such assets to pay an attorney is not necessarily relevant.6 Asset forfeiture may render defendants accused of RICO, continuing criminal enterprise, and many drug violations unable to compensate the attorney of his choice under present fee arrangements. Therefore, a defendant whose assets are frozen may lose his private lawyer and find himself represented by an attorney whom he does not necessarily trust.7 A public defender, new to the case, may be unprepared to mount an effective defense.8
For most of the twentieth century, it was considered unethical to arrange to represent a criminal defendant on a contingent fee basis. Many justifications for this ethical ban have been offered, the most compelling of which involve the disincentives to plead guilty that such an arrangement might create. I argue, however, that in light of the excessive burdens placed upon federal criminal defendants by the Comprehensive Forfeiture Act, the ethical ban against criminal contingent fees should be lifted. Criminal defendants' interest in retaining counsel they consider competent and effective may, especially in complex cases such as Mr. Frankel's, outweigh bar associations' interest in proscribing fee arrangements they suspect to be unethical.
Few scholars have addressed the ethical ban in recent years. Even fewer have argued for its relaxation. Those who have evaluated the ban9 have generally failed to focus on the special problems created by the forfeiture statutes. Professor Pamela S. Karlan, for example, argues that "careful policing" of contingent fee arrangements in criminal cases is preferable to an "outright ban,"10 but she devotes only one line of her lengthy article to the plight of defendants facing forfeiture.11 Professor Peter Lushing also criticizes the prohibition on contingent arrangements in criminal cases but relies on the questionable premise that dicta in a footnote to the leading Supreme Court case upholding attorney fee forfeiture12 legitimizes criminal contingent fees in the forfeiture context.13
Many scholars and practitioners implicitly assume that criminal contingent fees are unjustifiable without examining the underpinnings of those assumptions or questioning whether current circumstances call for a change in the prohibited status of such fee arrangements. However, modern circumstances and the erosion of the right to counsel effected by the contemporary practice of forfeiture mandate a re-examination of the bases for our visceral disapproval of criminal contingent fees. Unlike Lushing,14 I do not advocate the use of contingent fees in all criminal contexts. Nor do I advocate the use of contingent arrangements in all representations involving forfeiture. Rather, I argue that defendants whose assets have been frozen should, with proper supervision and protections, be permitted to contract with attorneys for contingent representation.
Part II provides a brief history of criminal contingent fees and discusses the justification for and application of the ethical ban in American law. Part III addresses the application of the Comprehensive Forfeiture Act and its impact on the right of access to counsel of one's choice. Finally, Part IV proposes a solution to the problem posed by modern asset forfeiture-relaxation of the ban on criminal contingent fees. …