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FORT LAUDERDALE, FLA. � The indictment of a Miami criminal defense attorney has triggered concern among defense attorneys and renewed calls for federal officials to establish guidelines for avoiding money laundering charges when accepting legal fees. A further fallout from the federal indictment of defense attorney Ben Kuehne is that many lawyers are now reluctant to “vet,” or perform due diligence checks on, potential criminal liabilities connected with other attorneys’ legal fees. “This is a matter of grave concern for lawyers all over the country,” said Michael Monico, a former Chicago federal prosecutor and president of the American Board of Criminal Lawyers, a select, invitation-only group of top defense lawyers. “It will absolutely have a chilling effect on legal representation,” said Monico of Chicago’s Monico, Pavitch & Spevack. “There has to be some trust between the defense bar and prosecutors.” In a statement issued to The National Law Journal, the U.S. Department of Justice, which is handling the Kuehne case, said it is “longstanding Department of Justice policy that the Department approaches with great care the prosecution of an attorney for money laundering based on financial transactions involving funds allegedly derived from a criminal activity.” The DOJ statement added: “However, when there is clear evidence of wrongdoing, the Department will honor its commitment to the pursuit of justice. Attorneys are not immune from prosecution of money laundering simply on the basis they represent criminal defendants.” Kuehne isn’t the only lawyer the Justice Department has ever charged with money laundering for allegedly taking tainted funds for fees. There have been several other cases in the past decade, most in Miami, stemming from the acceptance of drug proceeds. A Miami lawyer is currently serving 17 years in prison for money laundering charges in connection with his fee. In a 1999 case, a Michigan defense lawyer was charged with two counts of money laundering for accepting $100,000 and then arranging for delivery of the money “with the intent of promoting a client’s continued marijuana trafficking,” according to the appellate ruling. A jarred bar Still, the indictment of Kuehne, a former president of the Dade County Bar Association, former president of the Miami chapter of the Florida Association of Criminal Defense Lawyers and member of the Florida Bar Board of Governors, has jarred the criminal defense bar. “This makes us wonder, ‘Are we doing something wrong?’ ” said Brian Tannebaum, president of the Miami chapter of the Florida Association of Criminal Defense Lawyers. “ It causes people to step back and say, ‘whoa.’ How far does a criminal defense lawyer have to go to check out his legal fees? I think the DOJ has been trying to send us a message for a long time and won’t stop until there are rules in place.” Kuehne’s indictment stemmed from his 2002 role in vetting legal fees for Miami attorney Roy Black. Black was representing Fabio Ochoa, an alleged kingpin of the Medellin cocaine cartel. Kuehne traveled to Colombia to investigate the source of the fees before giving Black an OK to take $5.2 million in supposedly clean legal fees. Black paid Kuehne $197,000 for his vetting work. Kuehne, 53, was indicted on Feb. 7 along with Gloria Florez Velez, personal accountant for Fabio Ochoa and Oscar Saldarriaga Ochoa, a Colombian attorney for Ochoa. According to the indictment, the three defendants allegedly “commingled and transferred drug proceeds through the ‘Black Market Peso Exchange,’ ” a “ sophisticated money laundering scheme used by South American drug cartels to launder their U.S. dollar drug proceeds located in the United States.” It turned out that several of the wire transfers on which Kuehne signed off originated from U.S. undercover agents. According to federal sources, the feds were not targeting Kuehne but were simply tracking Ochoa’s drug proceeds when they led to Kuehne. Kuehne pleaded not guilty to the charges and his lawyer, Jane Moscowitz of Miami, has vigorously denied them. The indictment also calls for forfeiture of the $5.2 million in attorney fees paid to Black. However, the three defendants would have to pay that money back to the government, not Black, who has not been indicted. The Florida Association of Defense Lawyers quickly issued a statement in support of Kuehne. Fifty attorneys � including former U.S. Attorney Kendall Coffey � showed up at Kuehne’s initial appearance and arraignment in a show of solidarity. According to sources, internal debate has raged within the National Association of Criminal Defense Lawyers over what stance to take. Some are pushing for a strong statement, while others want the statement toned down or put off until the facts of the case are better known. But in the face of Kuehne’s indictment, many criminal defense lawyers are renewing their call for the Justice Department to establish guidelines as to how far attorneys have to go in vetting legal fees. “We begged the DOJ for years to set out guidelines for lawyers to follow and they turned us down,” said Neal R. Sonnett of Miami’s Neal R. Sonnett P.A. “I had one DOJ official tell me years ago that they would prefer these drug kingpins never get competent lawyers. The official line is they’re not in the business of vetting legal fees.” The DOJ has plenty of other guidelines, including guidelines on forfeiture of attorney fees, subpoenas to journalists and attorney-client privilege, Sonnett said. Dennis Kainen of Weisberg and Kainen, another Miami criminal defense attorney, agrees. “The problem is the DOJ won’t give you guidance,” he said. “They give guidance on certain fees, but not this. The government needs to promulgate some rules and guidance. After all, we work within a system of laws.” The DOJ said it has guidelines on lawyers avoiding money laundering charges set forth in the U.S. Attorney’s Manual, Section 9-105.6. However, Sonnett said those guidelines do not answer the broader question of what kind of due diligence an attorney must conduct to avoid criminal liability or even forfeiture. But a federal prosecutor who spoke on condition of anonymity cautioned lawyers to wait until the trial before calling for widespread changes. They might change their minds once they see the evidence against Kuehne, he said. “People see an indictment and don’t know what the evidence is yet and they jump to a conclusion,” said the prosecutor. “They think, ‘There but for the grace of God goes I.’ But they should wait until after the trial stage to make a decision.” Another prosecutor noted how rare the prosecution of a lawyer for money laundering is. Only a handful of lawyers have been charged with the crime, most in Miami, while 26,000 drug traffickers were convicted last year. But local criminal defense attorneys are wasting no time in leaping to Kuehne’s defense. If Kuehne is guilty of anything, it’s of being naive, said Jose Quinon, a solo Miami criminal defense attorney. Quinon represented Ochoa before Black, but withdrew from the case after failing to satisfy himself that the legal fees were entirely clean. Quinon said Ochoa was ostensibly going to pay his legal fees through the sale of cattle. For Kuehne to travel to Colombia, where he does not speak the language, and oversee the sale of cattle was pure folly, Quinon said. “Ben does not have street smarts,” Quinon said. “What the hell does Ben know about cows? He’s a city slicker. Ben doesn’t do drug cases; he has no idea what the hell he is doing. They gave him documents and they were phony documents. He didn’t know they were phony documents.” Fear of drug defendants Many of Miami’s so-called white powder bar stopped representing drug dealers years ago for fear of being tagged with money laundering charges or losing the entire fee due to forfeiture measures. Richard Sharpstein of Miami’s Jorden Burt dropped drug clients in the early 1990s and now concentrates his practice on prominent athletes such as Randy Moss, the New England Patriot charged with domestic violence, police officers and white-collar matters. “Most criminal defense attorneys consider this an outrageous prosecution,” Sharpstein said. “If you take this a few steps beyond, lawyers that advise banks or financial institutions could be in the line of fire next. If you extend the logic, it’s kind of frightening. I had several cases many years ago where I went to the U.S. attorney’s office and spelled out the source of my fee to the prosecutor looking for their blessing. I’ve gone to judges for approval.” Kainen is one lawyer who is thinking of withdrawing from a case following Kuehne’s indictment. Although the case does not involve drugs, Kainen said he is concerned about how he can ensure the funds are clean. He declined to name the case, or what it involved. “We’re doing due diligence about the fee and talking to other lawyers,” he said. “No one has definitive answers as to what you can do. Some people are in legitimate businesses and arrested for doing illegitimate stuff. For example, can a lawyer take a mortgage on a house? It’s frightening.” David O. Markus, president of the Miami chapter of the Federal Bar Association and a Miami criminal defense attorney, was so concerned about his legal fees in representing Cali cocaine cartel kingpin Gilberto Rodriguez-Orejuela in 2006 that he, like Black, hired a lawyer to “vet” the fees. During long hearings before U.S. District Judge Federico Moreno, Markus sought to get a “blessing” for his fees, which ostensibly came from a book advance obtained by Rodriguez-Orejuela. Even Moreno tried to force prosecutors into “blessing” the fee. They refused. “This is another message from the government that they don’t want criminal defense lawyers being criminal defense lawyers,” Markus said. “Most lawyers find this offensive. If they can go after Ben Kuehne, who is as ethical and standup as there is, anyone is at risk.” Matt Axelrod, assistant U.S. attorney in the U.S. attorney’s office in Miami who prosecuted the Rodriguez-Orejuela case, declined to comment. Michael Pasano, a partner in Washington-based Zuckerman Spaeder’s Miami office who was hired by Markus to vet the fees, insists he is not nervous. “I think that the two situations were much different and not in the least related,” he said. “We represent a lot of law firms. This has not afforded me any concern. I remain comfortable.” But not everyone is as confident as Pasano. One potential byproduct of the indictment is that the legal act of vetting legal fees will most likely not be taken on by some attorneys in the future. “The most dangerous job now is to be the vetter,” Quinon said. “That’s the guy in Vietnam walking the point.” Tannebaum agrees. “There is no way I would feel comfortable vetting legal fees knowing that, if the government disagrees with my opinion, I could be prosecuted,” he said.

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