[textbook]Traversing the Ethical Minefield Problems, Law, and Professional Responsibility by Susan R. Martyn (z-lib.org)(1) (1)

Total or Partial Forfeiture When the client has shown a clear and serious breach, Burrow
relies on the Restatement of the Law Governing Lawyers for the proposition that, normally,
fee forfeiture will be total. 13 The court also recognized that other courts have imposed
partial fee forfeiture when the misconduct can be separated in time from other valuable
services the lawyer has performed. The court avoids, however, the question of burden of
proof. The most logical view seems to be that the client must show the clear and serious
breach, at which point total forfeiture is presumed. The burden of proof then shifts to the
lawyer to justify less than full forfeiture, by establishing the value of the service rendered
apart from the breach. 14 Such an approach parallels the reasoning in Liggett, where the
court presumed undue influence because of the lawyer’s self-dealing and then shifted the
burden of proof to the lawyer to establish that the transaction was indeed reasonable and
fair.
How might these factors play out on remand in Burrow? If the aggregate settlement rule
was violated, suppose that subsequent evidence shows that the firm vigorously developed
the liability issues in the case and worked up the damage claims of each client individually.
In such a case, a court might find that this work prompted the settlement negotiations,
which would not have otherwise occurred. At that point, the breach of the aggregate
settlement rule, although still a serious matter, might be viewed as less of a breach of all
duties owed during the total representation. On the other hand, if the law firm did little of
this work and the defendant conceded liability, the breach appears nearly total.
Thus, where the breach of fiduciary duty permeates the entire relationship, the grounds
for total fee forfeiture are found. 15 This explains why so many of the full forfeiture cases
involve conflicts of interest that tainted the entire representation. But when the conflict
arises during the representation, the lawyer may be reimbursed for services provided before
he should have responded to the conflict. 16
Statutory Fee Forfeiture
Fee forfeiture also can occur pursuant to statute. 17 Most prominent are criminal statutes
that provide for forfeiture of the fruits of criminal activity, including lawyer’s fees. 18
Forfeiture statutes provide for civil forfeiture of the client’s funds traceable to criminal
activity, on the theory that they passed to the government at the time of the crime. 19 The
government can seize all assets of a defendant at the point of indictment on a showing of
probable cause to believe that the assets will ultimately be found to be subject to
forfeiture. 20 If the criminal case determines that the assets are the proceeds of the crime,
they are permanently forfeited to the government, but the statute exempts a “bona fide
purchaser for value” of property otherwise subject to forfeiture. 21
The Supreme Court has held that these statutes are intended to reach lawyer’s fees, as
well as other assets of the defendant, and that using this statutory power to freeze cash paid
to a lawyer does not violate a client’s rights. 22 The Court was not persuaded by the
argument that this meant that some defendants would be deprived of counsel of their
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