Although a defendant has a right to an attorney and although the attorney has a right to be compensated for her services, the defendant does not necessarily have the right to transfer an asset to that attorney in lieu of payment when the asset may be subject to criminal forfeiture. Generally, the defendant may transfer an asset for compensation to him or her attorney if:
- the transfer was made for legitimate services rendered by the attorney and
- where reasonable grounds existed for the attorney to believe that the asset was not subject to criminal forfeiture.
Facts and information must provide a basis for the claim that reasonable grounds existed for the transfer to occur. The attorney must have had actual knowledge that the asset transferred to him or her may have been subject to criminal forfeiture. Actual knowledge is more than some knowledge that some of the defendant’s assets may be subject to criminal forfeiture. Actual knowledge is when the attorney had knowledge that the particular asset transferred to him or her was subject or could have been subject to criminal forfeiture. Reasonable grounds may exist for an attorney to believe that he or she had actual knowledge that the asset was subject to criminal forfeiture if:
- the prosecution or government asserted that a particular asset was subject to criminal forfeiture.
- the particular asset in question stemmed from or was involved in the criminal misconduct. For example, if the defendant possessed and sold cocaine, gave the money derived from the sale to her attorney, and the attorney knew that the money came from the cocaine sale.
Burden of Proof
In order to recover an asset that was transferred to the defendant’s attorney, the prosecution or government must show that the asset was subject to forfeiture at the time that it was transferred. The prosecution or government must also show that the attorney had actual knowledge or reason to believe that the asset would be the subject of a criminal forfeiture.
The attorney may be permitted to keep the asset only if he or she is able to show that she was a bona fide purchaser and was without any knowledge that the asset was subject to criminal forfeiture. Typically, the attorney would be required to prove the above requirements in a post-forfeiture hearing or proceeding.