Robert Simels, a New York criminal defense lawyer, said he was shocked when he was subpoenaed by the prosecution to testify as a witness at a client's trial on charges of cocaine dealing.
Simels this month received a second subpoena, this time to appear before a grand jury to document the size of his fee and who is paying it.
Simels and other defense lawyers say that such testimony jeopardizes the attorney-client relationship, perhaps forcing the attorney to disqualify himself. But prosecutors say the testimony is necessary to determine whether the defendant has unreported and illegal income.
While lawyers have been receiving subpoenas to testify in their clients' narcotics cases for about 10 years, such subpoenas remain unusual.
Defense attorneys predict that the number of such subpoenas will rise as a result of the Comprehensive Crime Control Act of 1984, which gives prosecutors the right to take most assets -- including homes and money that would pay lawyers' fees -- of a defendant convicted in a drug or organized-crime case.
To ensure that the defendant does not spend the money before trial, the government now has the right to freeze the defendant's assets.
"Now that the government is seeking to freeze the defendant's money, it has more incentive to issue subpoenas because it wants to get the money back," said Alan Ellis of the National Association of Criminal Defense Lawyers.
Federal prosecutors have warned at least two attorneys since passage of the law in October that they cannot spend fees from certain clients because that money will belong to the government if the client is convicted of a narcotics or racketeering charge.
Neal R. Sonnet, a Miami defense attorney and former federal prosecutor, last month received a letter from Assistant U.S. Attorney Brian Leighton saying, "The government hereby puts you on notice that any and all assets belonging to the defendants are forfeitable to the United States, including any attorneys' fees or other valuable consideration received by you, or to be received by you for your representation of the defendant."
In another case, defense attorney Jeffrey Gordon of Los Angeles was notified by a prosecutor that the government might be entitled to any money paid him by client Leo Rogers. Rogers had been indicted on charges of obstruction of justice and operating a continuing criminal enterprise -- a tax-shelter investment program.
Gordon said he intends to argue in federal court this month that the forfeiture provision of the law is unconstitutional because it violates a defendant's Sixth Amendment right to counsel by leaving the defendant unable to pay an attorney.
Prosecutors disagree, saying that the defendant is entitled to a public defender. But defense attorneys point out that only defendants without money can use public defenders. Most defendants charged with drug dealing or racketeering technically have money.
"It might be a catch-22," Simels said.
Gordon said the forfeiture provision also could result in violations of attorney-client privilege because if the client is convicted, the attorney must try to prove that the money used to pay his fee did not come from an illegal activity -- or he cannot keep his fee.
"The forfeiture provision really strikes at the heart of the adversary system," Gordon said.
Defense attorneys also are worried that the forfeiture provision has great potential for abuse because it makes it difficult for certain defendants to hire excellent defense lawyers, both because the government can claim the attorney's fee and because the government can force the lawyer to testify against his client, encouraging the lawyer to disqualify himself from the case.
But the Justice Department sees the matter differently. "If you have drug money, you're not allowed to buy a plane with it, a house with it or more drugs with it," Trott said. "Why should there be a different rule for lawyers' fees? That money is blood money."
Answered Ellis: "There's no constitutional right to a Mercedes. There is to a lawyer."