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November 20, 2008 -- Wall Street Journal (US)

The Right To Counsel Vs The Need To Bar Tainted Legal Fee

Column: Scales of Justice

By Dan Slater

Return to Drug War News: Don't Miss Archive

When criminal defense lawyers face criticism for representing the "bad guys," they respond with a familiar refrain: Defending unpopular clients amounts to defending the constitutional right to representation and the presumption of innocence.

Now, some lawyers say, that right is coming under fire in the defense of narcotics traffickers. Specifically, they say, the Justice Department has failed to provide guidance on how defense attorneys can protect themselves against prosecution for taking legal fees that turn out to be tainted by dirty money -- thus deterring them from representing accused drug dealers.

The criminal defense bar is closely watching the coming trial of a prominent Miami attorney, Ben Kuehne. In late 2001, Mr. Kuehne was hired by a fellow attorney to vet the source of his fees, and subsequently was himself indicted for money-laundering.

The Kuehne case casts a spotlight on the challenge of how to uphold the Sixth Amendment right to counsel of one's choice while ensuring that drug defendants aren't using ill-gotten gains to fund their legal defense. To some in the defense bar, the Kuehne case points up confusion over the steps that defense lawyers need to take when accepting fees.

According to Kathleen Williams, the head of the federal public defender's office in Miami, the government has been unresponsive to attempts by private defense lawyers to establish a set of guidelines.

"This is not just chilling on the defense community, it's paralyzing," says Kendall Coffey, a former U.S. attorney who is now a private defense lawyer. A spokeswoman for the Department of Justice said the department doesn't comment on ongoing matters.

The Kuehne case has its roots in the arrest of the Colombian drug kingpin Fabio Ochoa, who was convicted in 2003 and sentenced to 30 years in prison for conspiring to smuggle cocaine into the U.S. Mr. Ochoa hired Florida attorney Roy Black to defend him.

In order to ensure that his legal fees would be paid not with proceeds from Mr. Ochoa's alleged drug deals but with clean assets, Mr. Black turned to Mr. Kuehne, a lawyer who has devoted much of his career to volunteer work and community activism. In addition to serving as pro bono counsel to organized labor groups in South Florida, including a local firefighters' union, he has worked to rehabilitate teenage criminal offenders and promote democracy in Cuba.

After traveling to Colombia to identify untainted Ochoa family assets that could be sold, Mr. Kuehne approved the conversion of the proceeds from pesos to dollars. Mr. Black, whose team was paid $5.3 million in legal fees, paid Mr. Kuehne about $200,000 for his work.

It turned out that U.S. law enforcement agencies were leading a sting operation against what the government calls the Black Market Peso Exchange, a currency exchange that has been used by drug cartels. In February of this year, nearly five years after Mr. Ochoa's trial ended, Mr. Kuehne was indicted.

The Justice Department says in the indictment that Mr. Kuehne approved assets for sale that he knew were tainted with the proceeds of drug money, and that even if the assets were clean, Mr. Kuehne sullied the resulting funds in the conversion. Mr. Kuehne's lawyers, in court papers, say the Black Market Peso Exchange, which they refer to as the parallel market, also is used to carry out legitimate business. They say the assets themselves were clean to begin with.

Mr. Black, who wasn't implicated in the case against Mr. Kuehne, declined to comment. Through his lawyers, Mr. Kuehne declined to comment. Going after drug dealers' lawyers for tainted fees isn't new, but the case is unusual in that Mr. Kuehne didn't directly represent an accused drug dealer himself. In addition, Mr. Kuehne's attorneys argue that allegedly tainted legal fees are not typically subject to federal money-laundering charges and should be handled in civil court.

The southern Florida defense bar has rallied around Mr. Kuehne, with a fund-raiser co-hosted by a former Florida Supreme Court justice scheduled for Thursday night. Last spring, after Mr. Kuehne's indictment, the Florida Association of Criminal Defense Lawyers honored Mr. Kuehne as a defender of constitutional rights with its Founders Award. In his acceptance speech, Mr. Kuehne said, "We live in a time that is not kind to the justice system, when the right to counsel is under attack, when those who oppose government overreaching are viewed as trouble."

However the Kuehne case affects the future of the Sixth Amendment's application, not everyone in Miami's legal community sees private lawyers fleeing drug cases.

"I don't see attorneys being scared away from cases because their fees would be seized," says Ms. Williams, the public defender. "Numbers-wise, we're not getting any more cases."

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