Sorted by Commenter - Ethics - State of California
Sorted by Commenter - Ethics - State of California Sorted by Commenter - Ethics - State of California
seizure, restraining order or potential forfeiture arising out of any: (a) criminal case, state 37 by the or federal, (b) SEC civil restraining order, or (c) a jeopardy assessment the Franchise Tax Board. In fact, to make the situation even more egregious, if money to be paid to the lawyer is contingent on an event that never occurs (i.e. trial), in the face of either (a), (b), or (c) above, the lawyer attorney may not return any funds subject to restraint to the client even when she is fired by the client and even if they are necessary to retain a new lawyer. 38 Lawyers have been accused of and charged with subject to discipline by the court returned to the client. The , let alone resolved, this aspect of the significant problem. 39 and decisions control Federal and state statutes provision in Section (e , not a Jeopardy assessments present a clear create. In hundreds , clients have transferred funds that have been seized by an investigative case. The irrevocable client' s rights, title and interest in the , this often gives the lawyer priority over the IRS or the Franchise Tax Board jeopardy If the client , the funds would be seizure with a jeopardy and abused in state and federal criminal related matters. 38 Why of a fee after firing a lawyer without cause when that fee cannot be returned to the client? In addition, there is no reported case that we are aware of where a lawyer who received a nonrefundable retainer and was discharged without cause could transfer the money to a new lawyer selected by the client. 39 Under federal law , attorneys' fees may be number of statutes, including 21 U. C. ~ 853 , 18 U. C. ~~ 981 and 982 or 18 U. ~ 1963 (RICO). defendant has used to pay his lawyer under 21 U. C. ~ 853 , the lawyer s sole defense is that he or she is "a bona fide , title or property and was at the time of the purchase reasonably without cause to believe that the property was subject to forfeiture. " 21 D. C. ~ 853(n)(6)(B); United States v. Saccoccia VL 165 F. Supp. 2d 103 , 111- 13 (D.R.I. Aug. 3 , 2001) (lawyers often qualify as bona fide purchasers for value and conviction). The forfeiture under RICO. C. ~ 1963(c). An attorney or other third party can defend 168
fee is "the lawyer s property on receipt") that is artificially character of funds that are actually not "earned when received. " The forfeiture or restraining order situations is not what the fee is called in a fee agreement but who in reality owns the funds. The only way services and the lawyer is involved in a bankruptcy, SEC, criminal or jeopardy tax situation, or has creditors, is if there is a nonrefundable assignment or absolute transfer of the funds. This is the key principle of defense restraint, and forfeiture. 40 When the client maintains the right to the funds before they are used, the state, the SEC, and IRS, or the bankruptcy lawyers or prosecuting agencies could and will client' s property and therefore it can be seized and forfeited. The Proposal enhances the risk of seizure, restraint, attachment, and/or forfeiture of legal fees. If a fee paid to a , it is the property of the lawyer. The client's right to have nonrefundable retainers mandates that a forfeiture proceeding under 18 C. ~~ 981 and 982 to the extent that the lawyer can show an interest as an owner. 18 C. ~ 981(2). California law provides for various forms of asset restraint and/or insurance and health fraud cases. See g., California Penal Code ~ It also provides for See California Health and Safety Code ~ , the legislature has provided that lawyers may that the fee is "solely owned by a " Cal. Penal ~ 186.7(a). 40 See Buker v. Superior Court 25 Cal. App. 3d involving an "irrevocable assignment " the equivalent of a , in a jeopardy assessment case, enabling the client to receive representation and the lawyer to maintain the fee); People v. Vermouth, supra 42 Cal. App. 3d at 359. and People Vermouth 42 Cal. App. 3d 353 , 359 (1974) (reversing conviction holding that the trial court deprived the defendants of their right to be choice by failing to s irrevocable assignment (treated as a nonrefundable retainer) of the seized funds that had priority over the IRS lien). This clients ' constitutional right to representation by a lawyer of their choice while collecting their fee. See also Tarlow Criminal Defendants and Abuse of Jeopardy Tax Procedures 22 UCLA L. Rev. 169
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seizure, restraining order or potential forfeiture arising out <strong>of</strong> any: (a) criminal case, state<br />
37 <strong>by</strong> the<br />
or federal, (b) SEC civil restraining order, or (c) a jeopardy assessment<br />
the Franchise Tax Board. In fact, to make the situation even more egregious, if money to<br />
be paid to the lawyer is contingent on an event that never occurs (i.e. trial), in the face <strong>of</strong><br />
either (a), (b), or (c) above, the lawyer<br />
attorney may not return any funds subject to restraint to the client even when she is fired<br />
<strong>by</strong> the client and even if they are necessary to retain a new lawyer.<br />
38 Lawyers have been<br />
accused <strong>of</strong> and charged with<br />
subject to discipline <strong>by</strong> the court<br />
returned to the client. The , let alone<br />
resolved, this aspect <strong>of</strong> the significant problem.<br />
39 and decisions control<br />
Federal and state statutes<br />
provision in Section (e<br />
, not a<br />
Jeopardy assessments present a clear<br />
create. In hundreds , clients have transferred funds that have been<br />
seized <strong>by</strong> an investigative<br />
case. The irrevocable<br />
client' s rights, title and interest in the , this <strong>of</strong>ten<br />
gives the lawyer priority over the IRS or the Franchise Tax Board jeopardy<br />
If the client , the funds would be<br />
seizure with a jeopardy<br />
and abused in state and federal criminal related matters.<br />
38 Why<br />
<strong>of</strong> a fee after firing a lawyer without cause when that fee cannot be returned to the client?<br />
In addition, there is no reported case that we are aware <strong>of</strong> where a lawyer who received a<br />
nonrefundable retainer and was discharged without cause could transfer the money to a<br />
new lawyer selected <strong>by</strong> the client.<br />
39 Under federal law , attorneys' fees may be<br />
number <strong>of</strong> statutes, including 21 U. C. ~ 853 , 18 U. C. ~~ 981 and 982 or 18 U.<br />
~ 1963 (RICO).<br />
defendant has used to pay his lawyer under 21 U. C. ~ 853 , the lawyer s sole defense is<br />
that he or she is "a bona fide , title or<br />
property and was at the time <strong>of</strong> the purchase reasonably without cause to believe that the<br />
property was subject to forfeiture. " 21 D. C. ~ 853(n)(6)(B); United <strong>State</strong>s v. Saccoccia<br />
VL 165 F. Supp. 2d 103 , 111- 13 (D.R.I. Aug. 3 , 2001) (lawyers <strong>of</strong>ten qualify as bona fide<br />
purchasers for value and<br />
conviction). The<br />
forfeiture under RICO. C. ~ 1963(c). An attorney or other third party can defend<br />
168
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