Human rights and money laundering: The prospect of international seizure of defense attorney fees

Autumn 1991 85

Human Rights and Money Laundering: The Prospect of International Seizure of Defense Attorney Fees*

RichardJ. Wilson**

I N T R O D U C T I O N

T he payment o f a t torney fees was only one o f the many subplots in the

saga o f the seizure and trial in U.S. courts o f General Manuel Nor iega .

When General Nor iega was arrested and b rough t to the Uni ted States, fed-

eral prosecutors froze all o f his assets in U.S. and foreign banks. A l though

he had already retained the services o f counsel, his lawyers were unable to

be paid because none o f the frozen assets was available, and the gove rnmen t

initially refused to cooperate in unfreezing them. The parties sparred for

* Copyright 1992 by RichardJ. Wilson. This paper was originally presented as part of a panel on "International Human Rights and International Criminal Law," at the American Bar Association annual meeting, Atlanta, Georgia, U. S. A., August 13, 1991.

** Associate Professor of Law and Director of the International Human Rights Law Clinic, American University, Washington, D.C., U.S.A.;B.A. , De Pauw Uni- versity 1965;J.D., University of Illinois 1972.

1 On the fee issue, see United States v. Noriega, 746 F. Supp. 154I (S.D. Fla. 1990). The invasion of Panama and General Noriega's arrest and transport to the United States have been the subject of intense debate among international legal schoiars. See, e.g., Anthony P. D'Amato, The Invasion of Panama H/as a Lawful Response to Tyranny, 84 Am. J. Int'l L. 516 (1990); TomJ. Farer, Panama: Beyond the Charter Paradigm, 84 Am. J. lnt'l L. 503 (t990); Kristin T. Landis, The Seizure of Noriega,

6 Am. U. J. Int'l L. & Pol'y 571 (1991); Ved P. Nanda, The Validity of United States Intervention in Panama under International Law, 84 Am. J. Int'l L. 494 (1990).

86 Criminal Law Forum Vol. 3 No. 1

some months, once agreeing that the government would pay for Noriega's

defense under a special arrangement that in effect made his lawyers federal

public defenders. 2 When the judge refused to abide by this agreement, the

prosecution relented and requested an unfreezing of certain assets in foreign

banks. Eventually, Austria freed $1.6 million, and defense lawyers an-

nounced they were willing to stay in the case, arguing that the matter was not yet over. 3

United States v. Noriega 4 may be the first of many cases raising difficult

questions of international law and policy with regard to the payment of at-

torney fees. United States law creates the dilemma. In 1989, the Supreme

Court narrowly held in companion cases that prosecutors could include de-

fense attorney fees as forfeitable assets under federal statutes that permit pre-

trial seizure of assets. The Court, in five-to-four decisions, concluded that

the clear statutory language, as well as compelling governmental purposes

in adopting the legislation, justified forfeiture, and held that neither the sixth

amendment right to counsel nor the fifth amendment due process clause was

violated by fee forfeiture. ~

In February 1990, the United States ratified the United Nations Con-

vention against Illicit Traffic in Narcotic Drugs and Psychotropic Sub-

stances ( " U N Drug Convention"). 6 The U N Drug Convention entered into

force in November of that year. v More recently, the Council of Europe, with

the United States as a participant, adopted broader forfeiture provisions in

the Convention on Laundering, Search, Seizure and Confiscation of the Pro-

ceeds from Crime ("Laundering Convention"). 8

2 Rosalind Resnick, Noriega: Sweet Deal Gone Sour, Nat'l L.J., June 4, 1990, at 3; Peter L. Zimroth, When Defense Goes Begging, Nat'l L.J., June 25, 1990, at 13.

3 Rosalind Resnick, Noriega Lawyers Say They'll Stay, Nat'l L.J., Feb. 11, 1991, at 2; Resnick, supra note 2.

4 746 F. Supp. 1541.

5 Caplin & Drysdale, Chartered v. United States, 491 U.S. 617 (1989); United States v. Monsanto, 491 U.S. 600 (1989).

6 Adopted Dec. 19, 1988, S. Treaty Doc. No. 4, 101st Cong., 2d Sess. (1990), Pres- ident's Statement on Signing the Convention, 26 Weekly Comp. Pres. Doc. 242 (Feb. 14, 1990), U.N. ESCOR, U.N. Doc. E/CONF.82/15 (1988), reprinted in 28 I.L.M. 493 [hereinafter UN Drug Convention].

7 Recent Actions Regarding Treaties to Which the United States Is a Party, 30 I.L.M. 867.

8 Nov. 8, 1990, Europ. T.S. No. 141 [hereinafter Laundering Convention], re-

Autumn 1991 Wilson/Seizure of Defense Attorney Fees 87

It is unsettled under both conventions whether the drafters considered

attorney fees to be seizable assets and whether attempts to seize fees as "pro-

ceeds" will survive scrutiny under developing concepts of the right to coun-

sel in international human rights law-. In this article I address these questions

and conclude that the exemption language of both the U N Drug Conven-

tion and the Laundering Convention excludes defense attorney fees f rom

seizure. I conclude further, however, that even if attorney fees are not ex-

empted, an array of human rights provisions, some of which are cnforceab!e

by attorneys f rom the United States in the European Court o f H u m a n

Rights, would combine to defeat any attempt to seize such fees, regardless

of the source.

THE U N D R U G C O N V E N T I O N

The U N Drug Convention is law in the United States regarding interna-

tional crimes of money laundering.9 The relevant provisions arc limited to

the laundering of proceeds f rom illegal activity relating to the manufacture

and sale of narcotics. Proceeds are defined as "any property derived f rom or

obtained, directly or indirectly, through the commission of an offence" des-

ignated in the convention. 10 Property, in turn, is broadly defir~ed as "assets o f

every kind. ''lJ Confiscation measures, both under the domestic law of the

parties and at the request o f another party to the convention, are required in

printed in 2 Crim. L.F. 443 (1991); see Nathalie Kohler, The Confiscation qfCriminaf

Assets in the United States and Switzerland, 13 Hous. J. Int'J L. 1, 7 (1990); HansJ. Nilsson, The Council of Europe Launderin 2 Convention, 2 Crim. L.F. 419 (1991). On November 8, 1990, the day of the opening for signature, the convention was signed by Belgium, Cyprus, Denmark, Germany, Iceland, Italy, the Netherlands, Norway, Portugal, Spain, Sweden, and the United Kingdom; Finland, France, Switzerland, and Austria signed recently; several other states, including the United States, are expected to sign and ratify soon. Id. at 421-22 & nn. 9-11.

9 The "Const i tut ion. . . the Laws of the United Sta tes . . . and all Treaties. . . shall be the supreme Law of the Land." U.S. Const., art. VI, w 2. Regardless of this language, some members of Congress have argued that human rights treaties are not self-executing but require implementing legislation before they can become fully operational. E.g., !31 Cong. Rec. 12,733 (1985) (remarks of Congressman Mel Levine of California on H. Res. 166 regarding Senate ratification of Genocide Convention).

i0 UN Drug Convention, supra note 6, art. l(p).

11 Id. art. l(q).

88 Criminal Law Forum Vol. 3 No.

several circumstances, including the seizure of "proceeds derived from of- fences" contemplated under the convention or "property the value of which corresponds to that of such proceeds. ''12 Finally, it is an offense under the

U N Drug Convention, "[s]ubject to [the] constitutional principles and the basic concepts of[the] legal system" in question, to acquire or possess property "knowing, at the time of receipt, that such property was derived" from one of the drug offenses set forth in the convention. 13 Thus, if attorney fees

are "proceeds," they may be subject to seizure, and if the attorney knows that the fee derives from drug-related offenses, the attorney may be guilty

of a criminal offense. No explicit exemption is made under the convention for attorney fees.

The only limitation on confiscation is contained in article 5.8, which states: "The provisions of this article shall not be construed as prejudicing the rights

of bona fide third parties." If attorneys, not mentioned by name, are "bona fide third parties," they certainly are prejudiced when their fees are seized or payment of further fees is prohibited.

Some clarification as to the intent of the drafters with regard to attorneys may be offered in the commentary to the more recent Laundering Con-

vention. The explanatory report states:

The question has been raised in relation to the U N [Drug] Convention, whether it would be illegal for a lawyer's fees to be paid out of funds related to a laundering offence. Some lawyers have even suggested that the U N Convention would, by its wording, make it criminal to hire a lawyer or to accept a fee. In the view of the experts, the wording of the present Convention cannot be misinterpreted to that effect.14

While the commentary may give some solace to the attorney who seeks support for attorney fee exemption under the Laundering Convention, the intent of the drafters of the U N Drug Convention remains uncertain.

Support for an argument of access to attorney fees as proceeds under the

Id. art. 5.1(a).

Id. art. 3(c)(i).

Council of Europe, Explanatory Report on the Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime add. II, point 33 (1990) (emphasis added) [hereinafter Explanatory Report]. Curiously, the commentary does not expressly address the question of whether attorney fees are themselves subject to forfeiture.


latter instrument is found in United States v. Monsanto, one of two relevant

recent decisions from the U.S. Supreme Court.*s The language of the fed-

eral statute in question 16 in Monsanto is similar to that of the U N Drug Con-

vention. The statute, which deals with continuing criminal enterprises

("CCEs"), requires that "any property constituting, or derived from . . .

p r o c e e d s . . , obtained" from violations of drug laws be forfeited to the fed-

eral government. 17 In Monsanto, the Court interpreted this language nar-

rowly and literally.

The Court found the language of the CCE statute to be unambiguous.

Congress's failure to include an exemption for attorney fees, said the Court,

was intentional in light of the use of the term any property when referring to

assets subject to forfeiture. TM The language of this statute is very similar to

that of the U N Drug Convention's prescription for confiscation of "any

property derived f r o m . . , the commission o f an offence" enumerated in

the convention. 19

The Supreme Court majority was unimpressed with the dissenters' ar-

gument that Congress injected some discretion into the law by permitting

the recovery of property, presumably including fees for services, by third

parties through inclusion of a provision to that effect in the statute. 2~ The

complex recovery language provides that such property "may be the subject

o f a special verdict of forfeiture and thereafter shall be ordered forfeited ''-~

unless the third party satisfies certain requirements for exemption. Any ar-

gument that this language creates discretion, concluded the majority, is over-

come by the purpose of the law: the preservation of property for forfeiture.

is Caplin & Drysdale, Chartered v. United States, 491 U.S. 617 (1989); United States v. Monsanto, 491 U.S. 600 (1989).

16 Comprehensive Forfeiture Act of 1984, 98 Star. 2044 (codified as amended at 21 U.S.C. ~ 853(a) (1982 & Supp. V)).

i7 Monsanto, 491 U.S. at 603.

18 Id. at 607-11.

19 UN Drug Convention, supra note 6, art. l(p).

2o The dissenting opinion, written by Justice Blackmun, asserted that the law's provision of exemptions from forfeiture had the afortiori effect of making it discre- tionary. 491 U.S. at 618. The majority disagreed, relying on the unequivocal "any p rope r ty . . , any proceeds" language, ld. at 613.

21 Id. at 604 n.3 (emphasis added) (quoting 21 U.S.C. ~ 853(c) (1988)).


This strict reading of the exemption provision might arguably be appli- cable to the interpretation of the U N Drug Convention. No such conclusion, however, is justifiable. In the U.S. legislation, the presumption is forfeiture; the third party has the burden of proof to qualify for exemption. Moreover, the alternative use of mandatory and permissible forms in the same sentence complicates statutory construction. No such ambiguity is found in the U N Drug Convention exception. The third-party protection provision is clear and unambiguous, providing protection to bona fide third parties whenever the convention is construed to their prejudice.

THE L A U N D E R I N G C O N V E N T I O N

The Council of Europe's Laundering Convention is much broader than the U N Drug Convention, although its geographic scope is narrower. The convention was elaborated by the Council of Europe member states, Austria, the European Community, the United States, Australia, and Canada. = The Laundering Convention includes not only drug trafficking as a predicate offense but also such offenses as extortion, kidnapping, environmental offenses, economic fraud, sexual exploitation of children, organized crime, terrorism, and general "crimes of violence. ''23

The Laundering Convention is also broader than the U N Drug Con- vention in its definitions, offenses, and confiscation provisions. First, the Laundering Convention defines "proceeds" as "any economic advantage from criminal o f f e n c e s . ''24 Second, the new convention requires the con- tracting parties to adopt measures criminalizing conversion, concealment, disguise, acquisition, possession, or use of property that constitutes proceeds, as well as conspiracy, attempt, aiding, abetting, facilitating, or coun- seling in relation to the commission of any such offense. 25 At the same time,

22 Bruce Zagaris, Council of Europe Convention on Laundering, Search, Seizure, and

Confiscation Will Make Revolutionary Changes, Int'l Enforcement L. Rep., Oct. 1990, at 352, 353.

23 Explanatory Report, supra note 14, point 27; see Lamadering Convention, supra

note 8, art. l(e).

24 Laundering Convention, supra note 8, art. l(a).

25 Id. art. 6(1).


however, the convention permits its signatories to criminalize the receipt o f

proceeds where the offender "ought to have assumed" that the proper ty was

proceeds, where the offender "acted for the purpose of making profit," or

where the offender "acted for the purpose of promot ing the carrying on o f

further criminal activity. ''26 These "negligent laundering" provisions put

lawyers who receive fees f rom arguable proceeds more at risk not only o f

loss of the fee but also of criminal conviction. 27

Third, the Laundering Convention requires a party to respond to a re-

quest for confiscation f rom another party either by enforcing the requesting

party 's confiscation order or by commencing confiscation proceedings un-

der its oven law28 The assets seized may be proceeds themselves or a sum of

money equal to the value of the proceeds. 29 Seizure is permitted both before

and after a judgment o f conviction of the predicate offense. 3o

The Council o f Europe's Laundering Convention, like the U N Drug

Convent ion and the federal CCE statute, does not contain an explicit pro-

vision barring the seizure of attorney fees as proceeds. The exemption article

itself protects legal remedies for "interested parties," who are to be guaran-

teed "effective legal remedies in order to preserve their rights. ''3~ T w o very

strong statements regarding the right to counsel, however, are contained in

the explanatory report. The first is the flat statement of the drafters that the

wording of the convention "cannot be misinterpreted" to make it crimina!

to hire a lawyer or for that lawyer to accept a f e e . 32

26 Id, a r t . 6(3).

27 The negligent laundering provisions are similar to U.S. Department of Justice Guidelines, U.S. Attorneys' Manual ~ 9-111.520, at 12-13 (I986), that call for the prosecution of defense attorneys who have "reasonable cause to believe" that an asset is forfeitable at the time of transfer to them. Avalyn Y. Castitlo, Note, For-

feiture of Attorneys Fees, 17 Am. J. Crim. L. 123, 136 (1990).

28 Laundering Convention, supra note 8, art. 13(t).

29 Id. art. 13(4). The UN Drug Convention, s~pra note 6, art. 5(1)(a), permits "value confiscation" only of property itself.

3o Laundering Convention, supra note 8, art. 13(2).

31 Id. art. 5.

32 Explanato W Report, supra note 14, point 33. The full quote appears supra in the text accompanying note 14. One can only speculate why, if the drafters felt so


That comment parallels another regarding the exemption provision:

The legal provisions required by this Article should guarantee "effec-

tive" legal remedies for interested third parties. This implies that there

should be a system where such parties, if known, are timely informed

by the authorities o f the possibilities to challenge decisions or measures

taken, that such challenges may be made even i fa confiscation order has

already become enforceable if the party had no earlier opportuni ty to do

so, that such remedies should allow for a hearing in court, that the inter-

ested party has a right to be assisted or represented by a lawyer and to present

witnesses and other evidence, and that the party has a right to have the

court decision reviewed.3~

Thus, interpretation of the covenants may well turn on the intent o f the

drafters, as evidenced in their commentary to the text. The U.S. courts also

dealt with the issue of congressional intent in the drafting of the C C E stat-

ute, in question again in Caplin & Drysdale. A lower federal court found

persuasive the language in a House Judiciary Commit tee report stating that

"nothing in . . . [section 853] is intended to interfere with a person's sixth

amendment right to counsel. T M Another court relied on a subsequent state-

ment in the House report urging that sixth amendment issues be left to the

courts. 3s The conflicting statements in the legislative history differ signifi-

strongly about the exemption of attorneys, they failed to include an explicit provision to this effect.

33 Id. point 31 (emphasis added). The emphasized language arguably refers only to the right of the third party to be represented by counsel in protecting rights under the convention. If so, the ironic result may be that the third-party lawyer is entitled to counsel to protect monetary rights while the third-party lawyer's client may be denied counsel to protect significant liberty interests.

34 United States v. Rogers, 602 F. Supp. 1332, 1337 (D. Colo. 1985), quoted in La- teefah Muhammad, Comment, Should Forfeitable Assets, As Defined by Title 21 U.S.C. Section 853, Include the Seizure of Attorney's Fees?, 16 T. Marshall L. Rev. 75, 83 (1990).

3s Payden v. United States, 605 P. Supp. 839, 850 n.14 (S.D.N.Y. 1985). The two passages, taken together, are also quoted by the majority in United States v. Monsanto, 491 U.S. 600, 609 n.8 (1989), but are found to be "ambiguous" and "nothing more than an exhortation for the courts to tread carefully in this delicate area."


cantly from the unequivoca! statements in the explanatory report to the

Laundering Convention. Ultimately, resolution of the status of attorney fees under both the UN

Drug Convention and the Laundering Convention is not apparent from the

explicit language of these instruments. The issue may come down to the

balancing of competing fundamental rights--the right to counsel and, more generally, the right to due process for the accused in a criminal case versus

the right of the citizenry to be protected from the possibility that participants

in organized crime and drug enterprises will benefit from their allegedly ill gotten gains.

The Supreme Court concluded in Caplin C# Drysdale that the govern-

ment's interests outweighed those of the accused in representation by coun-

sel of choice under the sixth amendment. The defendant had agreed to plead

guilty and to forfeit all assets specified in the indictment. Defense attorneys

filed a third-party claim for unpaid legal fees, arguing that prosecutors had

unconstitutionally impounded a portion of those fees that had actually been

paid prior to the defendant's surrender. Their claim was reviewed by the high court. 36

The Court reached its conclusion that forfeiture yeas proper on three

bases. First, the accused was not prevented from exercise of his sixth amend-

ment right to counsel of choice because he could still retain counsel from nonforfeitable assets. 37 Second, the accused whose assets were forfeited did

not hold good title to them in the first place. Under the "relation back"

provisions of the law in question, title to proceeds of crime vested in the

government upon the commission of the act giving rise to forfeiture. There- fore, the accused had no "right" to assert with regard to the use of the pro-

ceeds, even to pay, his attorneys. 3S Third, the government's interests in law

enforcement, in the return of property to its rightful owners, and in lessen- ing the power of organized crime outweighed the defendant's sixth amend-

ment right to counsel of choice, particularly where appointed counsel was available.-~9

The lawyers made an alternative argument. Under the fifth amendment

36 Caplin & Drysdale, Chartered v. United States, 491 U.S. 617, 6!9-21 (1989). 37 Id. at 625.

38 Id. at 626-27.

39 Id. at 629-32.

94 Criminal Law Forum Vol. 3 No.

right to due process, they argued that the CCE statute upset the "balance of

forces between the accused and his accuser. ''4~ The Court rejected this argu-

ment as speculative, holding that the possibility that prosecutors may abuse

the process available to them did not require a finding of facial invalidity o f the statute. 41

The Caplin & Drysdale decision rests not so much on the rules of statu-

tory construction, which can be manipulated to achieve the desired out-

come, as on policy questions involving the assessment and weighing of

competing values. The Court narrowly resolved the issue, ruling five to four

in the government 's favor. Given the narrowness of the decision and the

likelihood that the issue will be raised under the conventions discussed here,

there is reason to extend this analysis further into the rights of the accused

under international human rights law, with particular focus on the question

o f how the issue might be resolved in the European Court of Human Rights.

LIMITS O N G O V E R N M E N T SEIZURE OF A T T O R N E Y FEES U N D E R I N T E R N A T I O N A L H U M A N RIGHTS LAW

Human rights instruments have much to teach regarding the protection o f

fundamental rights. Well-established instruments like the Universal Decla-

ration o f Human Rights 42 and the International Covenant on Civil and Po-

litical Rights 43 give guidance on the protection of the right to counsel and

the right to fair trial. Similarly, new documents in the human rights field

strengthen the right to counsel. Among the newest are the Basic Principles

on the Role o f Lawyers, reported at the Eighth U N Congress on the Pre-

vention of Crime and the Treatment of Offenders, held in Havana, Cuba, in

the late summer of 1990, 44 and the Copenhagen Document on Human

Rights, adopted in June 1990 by the Conference on Security and Coopera-

4o Id. at 633.

41 Id. at 634.

42 G.A. Res. 217A, U.N. Doc. A/810, at 71 (1948).

43 G.A. Res. 2200, U.N. GAOR, 21st Sess., Supp. No. 16, at 52, U.N. Doc. Al 6316 (1966).

44 Report of the Eighth United Nations Congress on the Prevention of Crime and the Treat-

ment of Offenders 117, U.N. Doc. A/CONF.144/28 (1990) [hereinafter Eighth United Nations Congress]. For background, see Roger S. Clark, The Eighth United

Nations Congress on the Prevention of Crime and the Treatment of Offenders, 1 Crim. L.F. 513 (1990).


tion in Europe, arising originally f rom the Helsinki Accords. 45 Finally, the

European Convention on Human Rights, 46 as interpreted by the European

Court o f H u m a n Rights, gives the most detailed exposition and interpreta-

tion of the rights here in question. Each of these instruments will be exam-

ined in turn.

The Core Documents: The Internar Bill of Human Rights

The most basic documents on human rights are the three that make up the

"International Bill o f H u m a n Rights": 47 the Universal Declaration of Hu-

man Rights, 4s the International Covenant on Civil and Political Rights, 49

and the International Covenant on Economic, Social, and Cultural Rights. 5~

Only the first two of these instruments are relevant to the discussion here.

The Declaration of H u m a n Rights is the oldest and most broadly

drafted of the human rights instruments with application in the United

Nations system. Two of its provisions are relevant. Article 10 provides that

"[e]veryone is entitled in full equality to a fair and public h e a r i n g . , o in the

d e t e r m i n a t i o n . . , o f any criminal charge against him." This call to due pro-

cess and equal treatment in the criminal process provides the basis on which

more specific rights are later enumerated in the Covenant on Civil and Po-

litical Rights. Article 1 1(1) states plainly that "[e]veryone charged with a penal offence

has the right to be presumed innocent until proved guilty according to law

in a public trial at which he has had all the guarantees necessary for his de-

fence." While the Declaration of Human Rights makes no mention of a right

45 Conference on Security and Co-operation in Europe, Document of the Copenhagen

Meeting of the Conference on the Human Dimension, 29 I.L.M. 1305, 1306 [hereinafter Copenhagen Document]. On the Hetsinki Accords, see Human Rights Source-

book 688-710 (Albert P. Blaustein et al. eds., 1987).

46 Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, Europ. T.S. 5 [hereinafter Convention on Human Rights].

47 Human Rights Sourcebook, supra note 45, at 14.

48 See supra note 42.

4,; See supra note 43.

s0 G.A. Res. 2200, U.N. GAOR, 2tst Sess., Supp. No. 16, at 49, U.N. Doc. A/ 6316 (1966). In connection with this, see S. Exec. Doc. D, 95th Cong., 2d Sess. (1977). The instruments that make up the so-called International Bill of Rights are collected in Human Rights Sourcebook, supra note 45, at 14-37.

96 Criminal Law Forum Vol. 3 No. !

to counsel, it is implicit in the panoply of rights necessary for defense against criminal charges.

The Covenant on Civil and Political Rights has been pending in the Sen-

ate for advice and consent since the late 1970s, but some action toward rati-

fication is expected in this Congress. sl This instrument, which expands on

the Declaration o f Human Rights, is more explicit as to rights o f the accused

in a criminal proceeding. Article 14 includes the right to fair trial and the

presumption of innocence, as well as several minimum guarantees for those

charged with criminal conduct. Among the latter are the right to adequate

time to prepare and communicate with counsel of one's "own choosing" and

the right to defend oneself in person or through legal assistance of one's

"own choosing." The Human Rights Committee, a group of private experts

appointed by signatories to the Covenant on Civil and Political Rights, in-

terprets its provisions when individual complaints are filed with the United

Nations. The committee has often concluded that the right to defend

through counsel of one's own choosing is violated when the accused is com-

pelled to accept ex officio counsel provided by the government. 22 The com-

pulsion to accept unwanted court-appointed counsel is no less when the gov-

ernment takes away all means by which the accused can retain counsel o f choice.

The Basic Principles on the Role o f L a w y e r s

The quinquennial U N Congresses on the Prevention of Crime and the

Treatment of Offenders are one of the principal institutions of the United Nations to address comprehensive solutions to global crime. 53 Because the

51 See S. Exec. Doc. E, 95th Cong., 2d Sess. (1977). Hearings were held by the Senate Foreign Relations Committee on November 21, 1991, 137 Cong. Rec. D1483 (daily ed. Nov. 21, 1991), and committee action is anticipated in the spring of 1992.

s2 Alfred de Zayas et al., Application of the International Covenant on Civil and Political Rights under the Optional Protocol by the Human Rights Committee, 28 Ger. Y.B. Int'l L. 9, 48 (1985).

53 The recent General Assembly resolution restructuring the UN crime program leaves the congresses intact. G.A. Res. 46/152, U.N. GAOR, 46th Sess., 77th mtg., �82 14, U.N. Doc. A/46/704/Add. 1 (1991), reprinted in General Assembly Resolution on the Creation o f an Effective United Nations Crime Prevention and Crim- inal Justice Program, 3 Crim. L.F. 105 (1991). On the most recent congress, see Clark, supra note 44.


most recent congress took place in Havana, the United States did not send a delegation, s4 This, the Eighth, Congress formally included representatives from 127 states, along with participants from about 50 nongovernmental organizations and some 400 individuals participating in a personal capacity.

One of the items approved at the Havana meeting was the Basic Princi-

ples on the Role of Lawyers. While the congress did not suggest adoption of the principles by the General Assembly, it urged the Secretary-General to include the document in the next edition of the UN publication entitled Hu-

man Rights: A Compilation of Internar Instruments. ~5

The first article of the principles states without reservation that "[a]li persons are entitled to call upon the assistance of a lawyer of their choice to protect and establish their rights and to defend them in all stages of criminal

proceedings." A later article guarantees the right to counsel of one's choice upon arrest, detention, or charge; 56 the first article is not so qualified. Thus,

it cannot be argued that government seizure of attorney fees is any more permissible when the eventual accused is only a target during the investigative stages of a criminal case.

The protection of the attorney-client relationship flows throughout the principles. Most important, article 16 provides that "[g]overnments shall en- sure that l a w y e r s . . , shall not suffer, or be threatened with, prosecution or administrative, economic or other sanctions for any action taken in accor- dance with recognized professional duties, standards and ethics." The forci- ble seizure by government of attorney fees is arguably an economic sanction in violation of the principles.

The Copenhagen Document on Human Rights

In June 1990, the United States signed the Copenhagen Document on Hu- man Rights. ~7 This document, adopted by thirty-five member states of the Conference on Security and Co-operation in Europe, including the United

54 Clark, supra note 44, at 514.

ss Eighth United Nations Congress, supra note 44, at 124-25. The General Assembly "welcomed" a host of resolutions adopted by the congress, including the Basic Principles on the Role of Lawyers. G.A. Res. 45/121, U.N. GAOR, 45th Sess., Supp. No. 49 [to be issued], U.N. Doc. A/45/49 (1990).

ss Basic Principles on the Role of Lawyers, in Eighth United Nations Congress, supra note 44, art. 5.

sv Copenhagen Document, supra note 45, at 1306.

98 Criminal Law Forum Vol. 3 No. !

States and Canada, is considered a milestone in the recognition of human rights commitments by its signatories. The Copenhagen Document flowed directly from the recent developments in eastern Europe and the European Community. s8

The most significant provision of this instrument, according to the del- egates to the conference that approved it, is its reaffirmation of commitment to accede to the European Convention on Human Rights and other relevant international human rights instruments, s9 For our purposes, however, the remedies for human rights violations are most important. Where such vio-

lations occur, the participating states affirm that the available remedies include "the right of the individual to seek and receive adequate legal assistance. ''6~ This is a strong statement of commitment to the concept of

representation by counsel, who must be not only present but also "adequate. ''61 Moreover, the Copenhagen Document includes specific protection of the accused's right to "prompt legal assistance of his own choosing," as well as the presumption of innocence. 62

The European System for the Protection of Human Rights

The explanatory report to the Laundering Convention suggests that the

rights of private citizens under the convention are subject to the European Convention on Human Rights. 63 The latter instrument and the machinery

for its enforcement may provide the best possible source of protection for an accused who seeks to retain counsel of choice and to pay that lawyer's

fees. The European system is the oldest regional machinery for the enforce-

ment of human rights claims by individuals. Just two years after the adoption of the Universal Declaration of Human Rights in 1948, the Council of Europe adopted the Convention on Human Rights 64 and established its ad-

58 William Roebuck, Conference on Security and Cooperation in Europe Adopts Copen-

hagen Document on Human Rights, 20 Ga. J. Int'l & Comp. L. 645, 646 (1990).

~9 Id. at 647.

6o Copenhagen Document, supra note 45, art. 11.1.

61 Id.

62 Id. arts. 5.17, 5.19.

63 Explanatory Report, supra note 14, point 31.

64 See supra note 46.


judicatory bodies-- the European Court of Human Rights and the European

Commission on Human Rights. 6s The Commission utilizes a process of pre-

liminary and investigative review of complaints by individuals from states

parties, after which it renders a decision. The Court may review and rede-

termine the decision in certain circumstances.

The impact of the European Court 's decisions extends deeply into thc

legal systems of most of the participating countries, which have now rec-

ognized the jurisdiction of the Court and the binding nature of the more

than two hundred fifty cases it has decided since 1960. 66 Recently, the Court

has extended dramatically the effect of its decisions. Notable is the Soering

case, which held that extradition of a German national from England to

await trial on charges of capital murder on death row in Virginia would

violate the provisions of article 3 of the convention, prohibiting inhuman or

degrading punishment. 67 The Court emphasized the unique facts of the case:

the defendant was only nineteen years old and suffered mental instability.

The extradition was accomplished only when the United States agreed not

to pursue the death penalty even if the defendant were convicted of mur-

der. ~'8 The Court could thus conceivably refuse to permit execution of an

order freezing proceeds under the conventions discussed above, or overturn

such an order if imposed, when such assets have been or will be used to pay

attorney fees, if the Court found a violation of one of the guarantees of the

Convention on Human Rights.

The most likely source of protection in this context is article 6, which

deals specifically with rights in the criminal process. The most pertinent of

6s Provision is made for these organs in the Convention on Human Rights, supra

note 46, and various protocols thereto. The relevant instruments are collected in Human Rights Sourcebook, supra note 45, at 457-525.

66 Determined by a LEXIS search, intlaw Library, ECCases File (Feb. 1992); see also

Frank Newman & David Weissbrodt, International Human Righ;s 465 (1990).

c,7 Soering v. United Kingdom, 161 Eur. Ct. H.R. (ser. A) (1989), reprinted in 28 I.L.M. t063.

68 See Ralph G. Steinhardt, Recent Developments in the Soering Litigation, 11 Hum. Rts. L.J. 453, 454 (1990). For a full discussion, see Richard B. Lillich, The Soering Case, 85 Am. J. Int'l L. 128 (1991);John Quigley & S. Adete Shank, Death Row

as a Violation of Human Rights, 30 Va. J. Int'l L. 241 (1989). The decision has been criticized as overreaching by the Court. Colin Warbrick, Coherence and the Euro-

pean Court of Human Rights, 11 Mich. J. Int'l L. 1073, 1078-80, 1090-95.


these provisions and the leading cases interpreting them will now be examined.

ARTICLE 6(1): THE RIGHT TO A FAIR TRIAL, "EQUALITY

OF ARMS," AND ACCESS TO COURT

Article 6(1) states, in relevant part, that "[i]n the determination o f . . . any criminal charge against him, everyone is entitled to a fair and public hearing

�9 . . by an independent and impartial tribunal . . . . " The Court has read the fair hearing provision to include the principle of "equality of arms," under

which no fundamental inequality of the parties is to be permitted. 69 Thus far, decisions on equality of arms have been limited to situations in which the prosecution and court acted ex parte to determine criminal guilt or in which significant evidence was denied to the defense, 7~ but there is an argu-

ment to be made that no more fundamental inequality exists than when the defendant is unrepresented by counsel, against her wishes, due to actions

taken by a court. That argument is similar to the due process "balance of forces" claim made by the attorneys in Caplin & Drysdale.

One important decision in the area is the Deweer case. 71 There, a Belgian butcher was threatened with criminal prosecution for fixing prices in his shop in excess of those permitted by a decree from a government agency. The shop was ordered closed pending the determination of Deweer's guilt unless he was willing to pay a fine of ten thousand Belgian francs within forty-eight hours. He paid the fine but later filed an action with the Com- mission complaining that his rights under article 6 of the convention had been violated.

The Court determined that Deweer's right to a fair trial under article 6(1) had been violated because the fine was a criminal sanction and because he had been forced to choose between significant economic loss through the closure of his shop or the payment of the fine without a judicial determination of guilt. The Court found that Deweer had the "right to a court" to determine his guilt when there was such a "flagrant disproportion" in his

69 Neumei s t e r v. Austr ia (No. 1), 8 Eur. Ct. H.R. (ser. A) (1968), reprinted in 1968

Y.B. Eur. Conv. on H.R. 812.

70 Pieter van Dijk & Godefr idus J .H. van Hoof, Theory and Practice of the European Convention on Human Rights 251-53 (1984).

71 Deweer v. Belg ium, 35 Eur. Ct. H.R. (ser. A) (1980), reprinted in 1980 Y.B. Eur.

Conv. on H u m . Rts. 464.


choices. The Court ordered restitution of the fine and costs to be paid to

Deweer's survivors (he had died during the pendency of the Court 's re-

view).

The defendant under investigation for money laundering may also be

forced to choose between improperly competing interests: she must decide

whether to risk paying a lawyer to represent her, thus subjecting herself (and

the lawyer) to criminal charges if the money with which payment is made is

determined to be proceeds, or go unrepresented by counsel of choice in the

proceedings.

Like Deweer, other decisions of the European Court of Human Rights

emphasize the right of the accused to access to court as a basic aspect o f fair

trial. Golder 72 and Airey 73 establish that the absence of counsel is fatal to ac-

cess to criminal justice. Golder was a British prisoner denied access to a so-

licitor to determine his rights to a civil claim against prison officials. Airey

was an Irish national who was effectively denied counsel in separation pro-

ceedings against her husband because of prohibitive costs. In both cases, the

Court held that article 6(1)'s implicit right to access to the courts had been

denied. In Golder, the Court said, "hindering the effective exercise of a right

may amount to a breach of that right, even if the hindrance is of a temporary character. ''74 In fee forfeiture cases, the right in question is also, ultimately,

access to the courts, but the underlying issue, as in the two cases cited, is

access to counsel, as counsel is indispensable to effective access to court.

ARTICLE 6(2): THE PRESUMeTION or INNOCENCE

Unlike the U.S. Constitution, the European Convention on Human Rights

contains an explicit provision stating that anyone charged with a criminal

offense "shall be presumed innocent until proved guilty according to law. ''75

Thus, no argument could be made in the United States that the presumption

of innocence is violated by a pretrial legal determination that the defendant's

assets, which will become the subject of forfeiture only @er conviction, can-

not be used before trial to pay counsel fees. If the presumption is to mean

72 Golder v. United Kingdom, 18 Eur. Ct. H.R. (set. A) (1975); for a discussion, see t Vincent Berger, Case Law of the European Court of Human Rights 59 (1989).

73 Airey v. Ireland, 32 Eur. Ct. H.R. (ser. A) (1979).

74 Golder, 18 Eur. Ct. H.R. at 12.

75 Convention on Human Rights, supra note 46, art. 6(2).


anything, it must mean that the defendant has full access, without government interference, to the tools for his vindication during the time he is under suspicion or accusation.

There is no directly analogous case law from the European Court of Human Rights, At a recent American Bar Association National Institute on International Aspects of Asset Forfeiture, however, Hans J. Nilsson, repre- senting the Division on Crime Problems of the Council of Europe, ex- plained that the confiscation of attorney fees is "alien" in Europe and that the Court "would more than likely rule that confiscation is contrary to the presumption of innocence. ''76

ARTICLE 6(3): THE RIGHT TO COUNSEL OF CHOICE

The European Convention's provision on counsel is similar to that in the other international instruments. Article 6(3)(c) states that a person charged with a criminal offense has the right to "legal assistance of his own choosing." The Court, however, has determined that this right is not absolute but is subject to the relevant law of the legal system in question. 77 Thus, the right

to counsel provisions in each country in which a forfeiture is sought would have to be examined to determine their application to the payment of attor-

ney fees. One arguably relevant case is Goddi. TM In that case, an Italian shepherd

was convicted and appealed. At his appellate hearing, counsel of choice did

not appear because he had not been notified of the hearing; the court appointed substitute counsel, who argued the case without preparation. The defendant himself was also absent, having been arrested on other charges.

The court increased his sentence. Goddi filed a petition with the Commission, alleging that he had not

had legal assistance of his own choosing. In an essentially de novo proceeding, the Court agreed with Goddi, finding that the failure to give notice of the hearing lay squarely at the feet of the government and that Goddi had been deprived of a "practical and effective" defense. To the extent that the absence of counsel of choice is due, in forfeiture cases, to improper interfer-

76 Bruce Zagaris, ABA National Institute Considers International and Foreign Law As- pects of Asset Forfeiture, 6 Int'l Enforcement L. Rep., Dec. 1990, at 435, 438.

77 van Dijk & van Hoof, supra note 70, at 268-69.

78 Goddi v. Italy, 76 Eur. Ct. H.R. (ser. A) (1984).


ence by the government with the attorney-client relationship before trial,

Goddi may apply.

C O N C L U S I O N

At bottom, the power of the state to intervene and effectively control the relationship of a private attorney with that lawyer's client before trial and conviction is simply too onerous to be justified on the basis of crime control alone. The most persuasive arguments in Monsanto and Caplin & Drysdale are those of the dissent, which relied on the centrality to the sixth amendment of the relationship of trust that is fostered in the private attorney-client relationship. The failure to honor the right to counsel of choice results, as the dissent noted, in the possibility of the socialization of criminal defense services and diminution of counsel's independence.

These conclusions, of course, are statements of policy, not empirically provable propositions. Major human rights instruments, as wel! as their interpretation by tribunals, express a policy of overwhelming and explicit commitment to the right to a fair trial, to equality of arms, to the presumption of innocence, to protection from undue government interference with chosen counsel, and to the right to counsel of choice itself. It can only be hoped that these provisions will persuade the European Court of Human Rights to strike the balance of policy equities in favor of protection of the accused.