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Fee Payments to Criminal Defense Lawyers From Third Parties: Revisiting United States vs. Hodge and Zweig

Submitted by Chittam Thakore on Tue, 11-10-2009
Orentlicher, David
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Fordham Law Review
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United States
United States v. Hodge and Zweig is well-known for its analysis of the attorney-client privilege when lawyers are asked to disclose the names of their clients or the fee arrangements they have with their clients. More specifically, the Hodge and Zweig court addressed the confidential status of client identity and fee arrangements when a criminal defendant's attorneys' fees are paid by the defendant's confederate in crime. The court concluded that the attorney-client privilege does not prevent disclosure of a fee payer's name or fee arrangement when a co-conspirator pays attorneys' fees as remuneration for a defendant's participation in a criminal scheme. The court reasoned that, when drug kingpins or other crime bosses promise to pay their minions' attorneys' fees in the event the minions are arrested, the payments constitute an element of the criminal conspiracy. As such, the payments fall under the crime-fraud exception to the attorney-client privilege; defendants and fee payers cannot use their attorneys to hide information about their crimes or frauds. While Hodge and Zweig is important for its discussion of the attorney-client privilege, it is probably more important for its other implications. I argue that the case changes the way defense lawyers may interact with drug dealers, mobsters, or other participants in organized criminal activity when the lawyer's fees are paid--or might be paid--by a person other than the defendant. Specifically, I argue that ethical norms require criminal defense lawyers to decline the payment offered and instead refer the potential client to a public defender. By accepting such payments, lawyers would violate their professional obligation not to assist a client's criminal activity. In other words, the real issue is not whether these fee arrangements are protected by the attorney-client privilege, but whether they are permissible in the first place.