Exploring “Unsafe Harbor”

https://www.lexology.com/library/detail.aspx?g=b0b3669d-b9e5-49e3-8010-1d688812cc54

The link above is for the article title below:

Unsafe harbor — attorneys paid fees from criminal proceeds may be charged with money laundering

Fox Rothschild LLP

Fox Rothschild LLP logo

USA November 17 2011

A quote of interest from the article states:

…No matter the forfeiture conversation, defense counsel at least had the apparent assurance offered by a statutory safe harbor provision that they would not themselves become defendants by accepting arguably tainted funds.

At least in the Fourth Circuit, as the result of the decision in United States v. Blair, 2011 WL 4379370 (4th Cir., Sept. 21, 2011) that assurance no longer holds.

Counsel never had to fear facing a charge of concealment money laundering, under 18 U.S.C. § 1956, unless they actively engaged in concealing the nature, source or origin of criminal proceeds, an illegal act not accomplished by transparently accepting payment for legal fees.

But simple money laundering under 18 U.S.C. § 1957 was another matter: that statute does not require an intent to conceal the source of monies, or even require knowledge of the monies’ criminal derivation, only an intent to engage in a monetary transaction with qualifying proceeds, as by depositing a fee check.”

The Alaska Rules of Professional Conduct offer some exceptions where lawyers can defend themselves from disciplinary, criminal, or civil actions of misconduct.  This information is available at:

https://public.courts.alaska.gov/web/rules/docs/prof.pdf

“Where a legal claim or disciplinary charge alleges

complicity of the lawyer in a client’s conduct or other

misconduct of the lawyer involving representation of the

client, the lawyer may respond to the extent the lawyer

reasonably believes necessary to establish a defense. The same

is true with respect to a claim involving the conduct or

representation of a former client. Such a charge can arise in a

civil, criminal, disciplinary, or other proceeding and can be

based on a wrong allegedly committed by the lawyer against

the client or on a wrong alleged by a third person, for example,

a person claiming to have been defrauded by the lawyer and

client acting together. The lawyer’s right to respond arises

when an assertion of such complicity or other misconduct has

been made.

Paragraph (b)(5) does not require the lawyer to

await the commencement of an action or proceeding that

charges misconduct, so the defense may be established by responding directly to a third party who has made such an assertion. The right to defend also applies, of course, when a

proceeding has been commenced”.

Published by Trudy Sobocienski

My blog, "Beyond Leadership" is a creative place to share my personal feelings and thoughts while working in leadership roles for a variety of Alaska Native organizations, both for and not-for profit entities. An incredible leader and mentor of mine once asked while we were in Washington, DC, "What happened to you between the ages of 7-10 that motivated you to serve in a native leadership capacity". I was struck by that poignant thought and as such, include actual entries from my mother and my diaries beginning in the early 1970's. I enjoy sharing these excerpts because it captures the parallels she and I were experiencing throughout life, from two separate worldviews. Hers as a young mother of four and mine as her eldest child. I have never came across a book on leadership that lays bare a leaders personal feelings, thoughts, hopes, fears and dreams they were experiencing. So for me, my goal is two-fold: 1. Share the incredible life my parents created for my siblings and I growing up in remote Alaska; and, 2) Sharing my humanity, through my personal diaries and journals, while serving as the youngest-ever President/CEO for the Alaska Native Health Board. There are passages that will include significant policy issues I was working on throughout my career and travels. There are many more passages that do not. I cannot speak for my mom's passages, because I am reading them as I share them here, with you; with her permission of course.

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