RICO and the Forfeiture of Attorneys\u27 Fees: Removing the Adversary from the Adversarial System?

Analysis of the courts\u27 application of RICO\u27s amended forfeiture provisions to attorneys\u27 fees entails consideration of the language of the statute, congressional intent, and the requirements of the fifth and sixth amendments. That analysis leads to a conclusion that neither legislative history nor statutory language requires the inclusion or exclusion of attorneys\u27 fees from RICO forfeiture. Likewise, the right to counsel provided by the sixth amendment, upon which some courts have relied, does not adequately resolve the issue. Instead, fifth amendment due process analysis provides the requisite constitutional framework to resolve the fee forfeiture issue. Fifth amendment considerations compel recognition of a due process right of the accused to use potentially forfeitable assets in his own defense