Miami defense attorney Neal Sonnett calls it a "war on lawyers." New York attorney Ivan Fisher describes it as "a diabolical trick." San Francisco lawyer Ephraim Margolin complains that "some buccaneers on the prosecutorial side have gone too far."
What has some of the nation's toniest and highest-priced defense lawyers up in arms is several recent attempts by the Justice Department to move toward seizing their fees on the grounds that the money may have come from illicit drug and racketeering profits.
The lawyers say the government is intruding on their clients' constitutional right to legal counsel and putting a chill on the attorney-client relationship. But prosecutors say that some defense attorneys are more worried about their financial health.
"The whole idea of anyone questioning legal fees is like waving a red flag in front of a bull, and maybe a very guilty bull," said Rudolph W. Giuliani, the U.S. attorney in Manhattan. "It's an area where lawyers get upset -- it gets right down to how much money you make."
Last year Congress gave federal prosecutors expanded powers to seize the assets of drug dealers and organized-crime figures as part of a comprehensive crime-control bill. But recent attempts to use this tool to go after attorneys' fees have sparked a formal protest from the American Bar Association, and conflicting court rulings have cast a shadow over the legality of the practice.
The uproar has forced Justice Department officials to adopt a more cautious approach. They said last month that prosecutors would no longer subpoena a lawyer's records -- generally the first step in seeking to attach fees -- without prior approval from Stephen S. Trott, head of the department's Criminal Division.
Deputy Assistant Attorney General James I.K. Knapp said such subpoenas will be approved only if the information is necessary to prosecute a crime, if all reasonable attempts have been made to obtain it elsewhere and if the need outweighs the intrusion into the attorney-client relationship.
"As a practical matter, we would not proceed unless we could establish that . . . the attorney had knowledge that he was receiving the proceeds of illegal trafficking," Knapp said. "It will be a very rare and unusual situation where we'll actually seek forfeiture of attorneys' fees. This type of thing is always difficult to prove."
At the heart of the issue is whether a lawyer is responsible for finding out the source of funds that a criminal defendant uses to pay him. Brian Leighton, an assistant U.S. attorney in Fresno, Calif., said some wealthy attorneys "are looking the other way" to "protect their pocketbooks."
Leighton is prosecuting a major drug case in which William Thomas Sheehan and Donald Groh have been charged with bringing hundreds of tons of cocaine into California. Leighton said that the two were arrested in Florida with $825,000 in cash and that Sheehan in recent months had bought a $35,000 Jaguar with cash and a $189,000 boat with funds from a Swiss bank account.
Sheehan said he was in the real estate business and Groh described himself as a painting contractor, Leighton said. How then, he asked, could they afford to hire such expensive Miami attorneys as Sonnett and Albert Krieger?
"Why should the attorney become rich off of drug money?" Leighton asked. "If a guy doesn't list any employment -- and he wants to pay you in cash or with a wire transfer from a Swiss bank -- you'd have to think that this is drug proceeds."
Leighton initially sought the attorneys' records, then shifted tactics and subpoenaed their law firms' bookkeepers.
But Sonnett said such efforts infringe on the Sixth Amendment right to counsel and could knock him off the case by forcing him to testify against his client.
"I consider it to be an abuse of the grand jury process and a serious threat to the ability of my client to get a fair trial," Sonnett said. "The government has really attempted to turn this into forfeiture directed against lawyers and has placed lawyers in a totally untenable position. It turns the presumption of innocence on its ear."
Sonnett said Leighton has no idea how much he is charging his client or whether the payments might be coming from relatives or friends. "If I grill someone about where he's getting the money to pay me, he's likely to get up and leave," Sonnett said. Such questions, he said, would have "a chilling effect" on the attorney-client relationship.
Leighton replied that Sheehan and Groh would still be entitled to court-appointed lawyers and that there is no constitutional right to a particular attorney, especially if illicit funds are used to pay the bill.
Giuliani said some lawyers seem more concerned with paying for "the third car and the second house" than with the constitutional rights they invoke. He also noted that no attorneys' fees have been seized under the 1984 crime bill.
The Justice Department never intended to use the forfeiture law routinely, Giuliani said, adding that the new guidelines are designed to make prosecutors think twice about the process.
"The government will exercise this power very sparingly . . . where there is clear evidence to show that the attorney knew that the money is dirty money," he said.
Giuliani's office lost a recent attempt to invoke the law when U.S. District Court Judge Pierre N. Leval in New York ruled that the 1984 crime-control act was not intended to affect bona fide fees paid to criminal lawyers. Two earlier district court rulings had split on the question of whether the government may seize attorneys' fees.
In the New York case, Giuliani's office charged Salvatore Catalano with running a heroin and money-laundering operation that allegedly transferred millions of dollars to bank accounts in Switzerland and elsewhere. Few of the assets could be located, and prosecutors questioned how Catalano could hire a prominent attorney like Fisher -- for a fee estimated at $500,000 -- with income from his Queens bakery and other businesses.
When Giuliani tried to obtain Fisher's records, however, the judge threw out the subpoena.
Fisher called the attempt "a diabolical trick that gives the prosecution the ability to select its adversary. The government should be able to find out about improper conduct without sticking its nose into my office."
Fisher, like other defense lawyers, agreed that forfeiture would be appropriate if an attorney is acting as an accomplice or conduit in a criminal enterprise. But he said the government could not hold him responsible for knowing the source of his fees, adding: "How is it in the client's interest to tell you these are in fact illicit funds?"
Other lawyers are asking similar questions. Margolin, who represented Fisher, said he has been called by 40 to 50 criminal lawyers worried about whether their fees are in jeopardy.
"They were afraid that lawyers have now become the target of the government," said Margolin, who is advisory counsel to the American Civil Liberties Union in northern California. "They wanted to reassess whether it was worth remaining in the field."
Fisher said the debate has been sharpened by the fact that government prosecutors earn a fraction of the fees commanded by the defense lawyers they oppose in court.
"I can't help but understand the rankled feelings prosecutors must get spending months and months on a case and then watching some defense lawyer walk in and grab huge bucks that seem to come from all sorts of mayhem," Fisher said.
But Fresno's Leighton said jealousy is not a factor. "I'm sure these attorneys make a heck of a lot more money in one case than I do in several years," he said. "But I could be in that position if I wanted to."