FORFEITURES: Crossing the Criminal/Civil Line Before .READ - - PowerPoint PPT Presentation

FORFEITURES:

Crossing the Criminal/Civil Line

Before accepting a forfeiture case….

….READ CHAPTERS 22 and 22.2

• f Title 19.2, along with their

case notes!

Why?

Because it is your Professional Responsibility!

Rules of Professional Conduct Potentially Implicated

Rule 1.1 Competence

Rule

Rule 3.1 Meritorious Claims and Contentions

Rule

Rule 1.2 Scope of Representation

Rule

Rule 1.5 Fees

Rule

Rule 1.6 Confidentiality

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

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

• f 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)

CO COMMENT [ [9]: Crim imin inal, Fraudulent a and Prohibi bited d Trans nsactions ns

A lawyer is required to give an honest

• pinion 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 criminal or fraudulent does not, of itself, make a lawyer a party to the course of

• action. However, a lawyer may not

knowingly assist a client in criminal or fraudulent conduct. There is a critical distinction between presenting an analysis of legal aspects of questionable conduct and recommending the means by which a crime or fraud might be committed with impunity.

COM OMMENT[10]: Crimi minal, F Fraudulent and P Prohibited Transa sactio ions

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

reveal the client's wrongdoing, except where permitted or required by Rule 1.6. However, the lawyer is required to avoid furthering the purpose, for example, by suggesting how it might be concealed. A lawyer shall not continue assisting a client in conduct that the lawyer

• riginally 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

• ther 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

• ut the representation, and except as

stated in paragraphs (b) and (c).

Rule 1.6: Confidentiality Exceptions

• (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:

(1) the intention of a client, as stated by the client, to commit a crime reasonably certain to result in death or substantial bodily harm to another or substantial injury to the financial interests

• r property of another and the information necessary to prevent the

crime, but before revealing such information, the attorney shall, where feasible, advise the client of the possible legal consequences

• f 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.

COMMENT: Disclosure Adverse to Client

• [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.

• [7c] Third, the lawyer may learn that a client intends

prospective criminal conduct. As stated in paragraph (c)(1), the lawyer is obligated to reveal such information if the crime is reasonably certain to result in death or substantial bodily harm to another or substantial injury to the financial interests or property of another. Caution is warranted as it is very difficult for a lawyer to "know" when proposed criminal conduct will actually be carried

• ut, 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).

Rule 3.3: Candor Toward the Tribunal

• (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

• f the client and not disclosed by opposing counsel; or

(4) offer evidence that the lawyer knows to be false. If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall take reasonable remedial measures.

• (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

• ther

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

• ther tax

ax-pa payer er c contribu buting t ng to Social Security, M Medicar are, Medicai aid, a and o

• ur

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

§ 19. 19.2- 386. 386.3(B): ): An Answer r Requ quirements

• a. an answer under oath must be filed

in the proceeding

• b. setting forth
• (i) the nature of the defendant's claim,
• (ii) the exact right, title or character of the
• wnership or interest in the property and the

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

ANSWER OF BENEDICT ARNOLD COMES NOW Benedict Arnold and files his answer to the Notice of Seizure herein, stating the following:

• 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 does not meet the requirements of Va. Code Sec. 19.2-386.22

• 2. Benedict Arnold is the lawful and rightful owner of the money which is the subject of seizure.
• 3. The money seized does not have a substantial connection to the conduct allegedly giving rise

to the seizure.

Respectfully, By ______________________ Counsel By______________________ Benedict Arnold STATE OF VIRGINIA, COUNTY OF CHESTERFIELD, to wit: Subscribed and sworn to me by Benedict Arnold, whose signature appears above and who made oath to 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. _____________________, Notary Public My commission expires: __________ Registration No.:____________

This invokes Rule 1.1 and Rule 3.1

• Rule 1.1: 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 [5] Competent handling of a particular matter includes inquiry into and analysis of the factual and legal elements of the problem…)

• Rule 3.1: A lawyer shall not bring or defend a

proceeding, or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law. A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established.

Straw Owners, Straw Purchasers, and Straw Lien Holders

• 3rd Party Claimants often are

assisting in covering up monetary trails and property ownership

• You need to be extremely

careful helping both parties due to conflicts and inconsistent statements— especially once you know the facts of the criminal matter

3rd Parties Representation Can Implicate Rule 1.7(a)

Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict

• f interest exists if:

(1) the representation of one client will be directly adverse to another client; or (2) there is significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.

Rule 1.7 (b) Exception

Notwithstanding the existence of a concurrent conflict of interest under paragraph(a), a lawyer may represent a client if each affected client consents after consultation, and: (1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client; (2) the representation is not prohibited by law; (3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and (4) the consent from the client is memorialized in writing.

3rd

rd Parties must An

Answer P r Pursuant to § 19. 19.2-386. 86.8 8

• 3. No owner's interest may be forfeited under this chapter if the court finds that:
• a. He did not know and had no reason to know of the conduct giving rise to forfeiture;
• b. He was a bona fide purchaser for value without notice;
• c. The conduct giving rise to forfeiture occurred without his connivance or consent, express
• r implied; or
• d. The conduct giving rise to forfeiture was committed by a tenant of a residential or

commercial property owned by a landlord, and the landlord did not know or have reason to know of the tenant's conduct.

• 4. No lien holder's interest may be forfeited under this chapter if the court finds that:
• a. The lien holder did not know of the conduct giving rise to forfeiture at the time the lien

was granted;

• b. The lien holder held a bona fide lien on the property subject to forfeiture and had

perfected the same in the manner prescribed by law prior to seizure of the property; and

• c. The conduct giving rise to forfeiture occurred without his connivance or consent, express
• r implied.

This often creates a conflict!

Especially because the 3rd party has the SAME requirements of asserting a factual defense and providing actual evidence thereof

Standards of Proof:

• Va. Code § 19.2-386.10

Commonwealth’s Burden: Clear and Convincing

Evidence Defined by Black’s Law Dictionary: “the persuasive quality of clear-and- convincing evidence must establish that “the thing to be proved is highly probable or reasonably certain.” Quoted in: In Re: Brown, Va. Supreme Court (March 2018) Clear and convincing evidence is "more than a mere preponderance, but not to the extent of such certainty as is required beyond a reasonable doubt as in criminal cases. It does not mean clear and unequivocal." See Judicial Inquiry & Review Commission v. Lewis, 264 Va. 401, 405, 568 S.E.2d 687, 689 (2002)

Defense Burden: Preponderance

• f the Evidence

By law, respondents must prove an affirmative defense An affirmative defense standard is Preponderance of the Evidence Therefore, be prepared to have the respondent testify

Forfei eitures ar s are e Indepen ndependen ent o

• f the

he Criminal Ma Matte ter

• Va. Code § 19.2-386.10 (B): The

information and trial thereon SHALL BE INDEPENDENT of any criminal proceeding against any party or other person for violation of law.

• The forfeiture law suit is against the

“res’” or property and is not criminal in

• nature. See Jenkins v. Commonwealth,

13 Va. App 420 (1991).

Civil versus Criminal Issues

• Civil Rules of Evidence are applicable (for instance,

the expert can testify to the ultimate issue)

• Rules of Civil Procedure under Va. Code § 8.01 are

applicable unless otherwise stated in the forfeiture provisions Virginia Code §19.2 (for instance, the 90- day rule)

• Amendments to pleadings are to be allowed liberally.

See Bryson on Bryson on Civil Procedure § 9.01

The 5th Amendment and the Stay

• Va. Code § 19.2-386.10 (B): However, upon motion

and for good cause shown, the court may stay a forfeiture proceeding that is related to any warrant, indictment, or information.

• On all contested matters our office moves for a stay

to protect the defendant’s 5th Amendment rights during pendency of related criminal matters

Civil Discovery Prohibits Trial by Ambush

a. The general purpose of civil discovery is to narrow the litigable issues and to prevent surprises at trial. See Bryson

• n Civil Procedure § 9.01
• b. A party is entitled to find out

who witnesses are, what their testimony may be, and what information or evidence the party opponent possesses. See id. c. Discovery must be answered properly and timely

• d. The intent is to eliminate

gamesmanship and “just setting it for trial”

Be Be careful t treading t the fine line o

• f

a cr criminal c case contingency cy f fee

• a. Rule 1.5 Fees

(d)A lawyer shall not enter into an arrangement for, charge, or collect a contingent fee:

• (1) in a domestic relations matter, except in rare instances; or
• (2) for representing a defendant in a criminal case.
• b. Rule 1.8 Conflict of Interest: Prohibited Transactions

(j) A lawyer shall not acquire a proprietary interest in the cause of action or subject matter of litigation the lawyer is conducting for a client, except that the lawyer may:

• (1) acquire a lien granted by law to secure the lawyer's fee or expenses; and
• (2) contract with a client for a reasonable contingent fee in a civil case, unless

prohibited by Rule 1.5.

Conclusi sion

• n:

Whether you are a judge or an attorney, when it comes to forfeitures remember you are in the civil arena now—and there are different standards and rules than those that apply in criminal cases!