2102
Bona Fide Fees
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This prosecution policy applies only to property transferred to an
attorney as a bona fide fee for representation in a criminal matter. The
question whether a fee is bona fide will have to be answered on a
case-by-case basis; however, the fundamental inquiry is whether the fee was
paid in good faith without fraud or deceit for representation concerning the
defendant's personal criminal liability.
Thus, for example, if a defendant's legal fees are paid by another
in an effort to protect that other person's identity or legal interests or
any other interests of the overall criminal venture, such payments may not
be bona fide. However, fee payments by third parties, standing alone, do
not create any presumption of lack of bona fides, so long as the attorney's
loyalty and obligation remains to the client and the third-party payment
does not create any conflicting obligation to the payor.
Similarly, if there is a reasonable basis to believe that the fee
transaction was a fraudulent or sham transaction designed to shield the
property from forfeiture, hide its existence from governmental investigative
agencies, or was conducted for any purpose other than for legitimate legal
representation, the fee would not be bona fide. Generally, a transaction is
a sham or fraud if there is evidence that a scheme or plan existed to
maintain the client's or any other person's or corporation's interest in the
asset or the ability to use it beneficially. This may be established, for
example, by proof that the value of the property transferred far exceeded
the value of the services rendered and that there was an agreement by the
attorney to transfer the asset or some portion of it back to the client, a
third party or any other legal entity. There need not be proof that the
attorney was a participant in the criminal activity giving rise to the
property or that he otherwise violated the law. Quite obviously, however,
proof that an attorney knowingly acted in a manner as to aid and abet or
serve as an accessory after the fact to a money laundering transaction or
otherwise to facilitate criminal conduct would lead to the conclusion that
the property was not a bona fide fee.
[cited in USAM 9-105.600] | |