Asset Forfeiture and Attorneys’ Fees: The Zero-Sum Game

By Adam R. Cohen

Abstract

The history of asset forfeiture law spans almost as long as the history of the United States. However, in the last thirty years, the number of crimes for which asset forfeiture can be levied has grown exponentially both on the federal and state levels. As a result, a growing number of defendants face asset forfeiture.

When these criminal defendants seek legal representation, they place their attorneys in a difficult legal and ethical position. Asset forfeiture has developed in such a way that the criminal defense attorney cannot provide her client with zealous advocacy if the attorney seeks to retain her fees. Additionally, the law is designed to prevent these attorneys from withdrawing their representation once they learn that the funds being used to pay their fees are tainted.

This Note examines these, and other, ethical dilemmas that arise for criminal defense attorneys whose clients may be subject to asset forfeiture. Ultimately, this Note proposes a statutory fix to resolve these ethical issues to ensure that lawyers retain their hard-earned fees and clients receive zealous advocates.