FORFEITURES: Crossing the Criminal/Civil Line
Before ….READ CHAPTERS 22 and 22.2 accepting a of Title 19.2, along with their forfeiture case notes! case….
Why? Because it is your Professional Responsibility!
Rule Rule 1.1 Competence Rule Rule 3.1 Meritorious Claims and Contentions Rules of Rule Rule 1.2 Scope of Representation Professional Rule Rule 1.5 Fees Conduct Rule Rule 1.6 Confidentiality Potentially Implicated Rule Rule 1.7 Conflicts of Interest: General Rule Rule Rule 1.8 Conflict of Interest: Prohibited Transactions Rule Rule 3.3 Candor Toward the Tribunal
Rule 1.1: Competence • A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. • COMMENT: Thoroughness and Preparation • [5] Competent handling of a particular matter includes inquiry into and analysis of the factual and legal elements.
Rule 1.2(c): Scope of Representation A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning, or application of the law. (i.e. perjury, money laundering, concealing evidence of the crime)
A lawyer is required to give an honest opinion about the actual consequences that appear likely to result from a client's conduct. The fact that a client uses advice in a course of action that is COMMENT [ CO [9]: criminal or fraudulent does not, of itself, Crim imin inal, make a lawyer a party to the course of action. However, a lawyer may not Fraudulent a and knowingly assist a client in criminal or fraudulent conduct. There is a critical Prohibi bited d distinction between presenting an Trans nsactions ns analysis of legal aspects of questionable conduct and recommending the means by which a crime or fraud might be committed with impunity.
When the client's course of action has already begun and is continuing, the lawyer's responsibility is especially delicate. The lawyer is not permitted to COM OMMENT[10]: reveal the client's wrongdoing, except Crimi minal, F Fraudulent where permitted or required by Rule 1.6. and P Prohibited However, the lawyer is required to avoid furthering the purpose, for example, by Transa sactio ions suggesting how it might be concealed. A lawyer shall not continue assisting a client in conduct that the lawyer originally supposes is legally proper but then discovers is criminal or fraudulent.
Rule 1.6: Confidentiality of Information (a) A lawyer shall not reveal information protected by the attorney- client privilege under applicable law or other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraphs (b) and (c).
• (b) To the extent a lawyer reasonably believes necessary, the lawyer may reveal: (3) such information which clearly establishes that the client has, in the course of the representation, perpetrated upon a third party a fraud related to the subject matter of the representation; • (c) A lawyer shall promptly reveal: Rule 1.6: (1) the intention of a client, as stated by the client, to commit a crime reasonably certain to result in death or substantial Confidentiality bodily harm to another or substantial injury to the financial interests or property of another and the information necessary to prevent the Exceptions crime, but before revealing such information, the attorney shall, where feasible, advise the client of the possible legal consequences of the action, urge the client not to commit the crime, and advise the client that the attorney must reveal the client's criminal intention unless thereupon abandoned. However, if the crime involves perjury by the client, the attorney shall take appropriate remedial measures as required by Rule 3.3.
• [7a] First, the lawyer may not counsel or assist a client in conduct that is criminal or fraudulent. See Rule 1.2(c). Similarly, a lawyer has a duty under Rule 3.3(a)(4) not to use false evidence. This duty is essentially a special instance of the duty prescribed in Rule 1.2(c) to avoid assisting a client in criminal or fraudulent conduct. COMMENT: • [7c] Third, the lawyer may learn that a client intends prospective criminal conduct. As stated in paragraph Disclosure (c)(1), the lawyer is obligated to reveal such information if the crime is reasonably certain to result in death or Adverse to substantial bodily harm to another or substantial injury to the financial interests or property of another. Caution Client is warranted as it is very difficult for a lawyer to "know" when proposed criminal conduct will actually be carried out, for the client may have a change of mind. If the client’s intended crime is perjury, the lawyer must look to Rule 3.3(a)(4) rather than paragraph (c)(1).
• (a) A lawyer shall not knowingly: (1) make a false statement of fact or law to a tribunal; (2) fail to disclose a fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client, subject to Rule 1.6; (3) fail to disclose to the tribunal controlling legal authority in the subject jurisdiction known to the lawyer to be adverse to the position Rule 3.3: of the client and not disclosed by opposing counsel; or (4) offer evidence that the lawyer knows to be false. If a Candor Toward lawyer has offered material evidence and comes to know of its falsity, the lawyer shall take reasonable remedial measures. the Tribunal • (b) A lawyer may refuse to offer evidence that the lawyer reasonably believes is false. • (c) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer which will enable the tribunal to make an informed decision, whether or not the facts are adverse. • (d) A lawyer who receives information clearly establishing that a person other than a client has perpetrated a fraud upon a tribunal shall promptly reveal the fraud to the tribunal.
UNDERLYING REASONING OF FORFEITURES • If you stop th the e money, th then you stop th the drug f g flow • Proceed eeds a s are used ed to sponso nsor o other her c crimes, es, such ch a as sexua ual e expl xploitation, gang r ng related ed activities, and terroristic a acts • It is u untaxed income: it i is u unfair to e every other tax ax-pa payer er c contribu buting t ng to Social Security, M Medicar are, Medicai aid, a and o our necess cessary pub ublic c services ces
Extremely Limited Uses of Forfeited Funds and Property • Essentially, it goes to police for training and for protective purchases, such as tasers or vests • It cannot be part of a city’s or county’s general budget or made part of salaries ( i.e. the attorney handling forfeitures gets no financial benefit)
Issues with the Nuts and Bolts of Forfeitures
a. an answer under oath must be filed in the proceeding § 19. 19.2- b. setting forth 386. 386.3(B): ): • (i) the nature of the defendant's claim, Answer An r • (ii) the exact right, title or character of the ownership or interest in the property and the Requ quirements evidence thereof, and • (iii) the reason, cause, exemption or defense he may have against the forfeiture of his interest in the property, including but not limited to the exemptions set forth in § 19.2- 386.8.
Requirements of Answer • An actual statement of facts • With any physical proof or documentation • A statement of the defense • Under the penalty of PERJURY!
Exemplar of a Non-Compliant Answer Respectfully, ANSWER OF BENEDICT ARNOLD By ______________________ COMES NOW Benedict Arnold and files his answer to the Notice of Seizure herein, stating the Counsel following: By______________________ Benedict Arnold 1. The $25,000in U.S. Currency seized pursuant to the notice of seizure was not used in substantial connection to a felonious event involving a scheduled substance or money laundering or with any legal activity and was not derived from illegal activity and therefore STATE OF VIRGINIA, does not meet the requirements of Va. Code Sec. 19.2-386.22 COUNTY OF CHESTERFIELD, to wit: Subscribed and sworn to me by Benedict Arnold, whose signature appears above and who made oath to 2. Benedict Arnold is the lawful and rightful owner of the money which is the subject of seizure. me the statements made by him in this Answer are to the best of his knowledge true and accurate, on this the _____ day of ________, 20_____, in my jurisdiction aforesaid. 3. The money seized does not have a substantial connection to the conduct allegedly giving rise _____________________, Notary Public to the seizure. My commission expires: __________ Registration No.:____________
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