Vanderbilt Law Review

First Page



In 1984 the President's Commission on Organized Crime concluded that money laundering was the lifeblood of organized crime.'The Commission found that drug traffickers and racketeers exploited weaknesses in the Bank Secrecy Act to launder much of their income,estimated by one source to be 150 billion dollars annually. In response,the Commission recommended legislation to strengthen currency reporting laws, to extend the investigative powers of federal agencies, and to create a new money laundering offense.' This new legislation would hold criminally liable persons who conduct a monetary transaction with knowledge or reason to know that the funds involved were derived from unlawful activity. The Commission intended the offense to reach those who perform "ministerial duties" necessary for money laundering, but the broad language of the proposed legislation threatened anyone who received and banked money derived from illegal activities.

The broad reach of the Commission's offense had ample precedent in laws proscribing the receipt of stolen property. The crime of receiving stolen property typically imposes liability on anyone who knowingly receives property belonging to another with an intent to conceal it from the true owner; the crime does not require complicity in the underlying theft.' Despite this precedent, the National Association of Criminal Defense Lawyers (NACDL) vociferously opposed the new legislation, arguing that the money laundering offense would expose innocent people to criminal liability. The NACDL was particularly concerned about the potential liability of attorneys who receive tainted funds from clients.The NACDL argued that the "in terrorem" effect of the statute on lawyers would deprive defendants of their right to counsel of choice, cripple the adversary system, and radically change the criminal bar." These arguments did not persuade the United States Congress. A version of the Commission's proposed offense passed the House and Senate in October 1986 and was enacted as section 195712 of the Money Laundering Control Act of 1986.

This Note considers whether attorneys should be prosecuted under section 1957 for knowingly receiving tainted, bona fide attorneys' fees.It concludes that prosecution would serve the public interest in certain cases. Part II discusses the statute, its legislative history, and congressional intent. Part III considers the constitutionality of the statute as applied to bona fide attorneys' fees. Part IV considers the policy implications of including bona fide fees within the ambit of section 1957.Part V discusses the proposed policy of the Justice Department for section 1957 and revisions to that policy offered by the American Bar Association (ABA) and the NACDL. Finally, Part VI recommends to Congress an amendment to section 1957 that would accommodate the interests of both criminal defendants and the government.