Analysis of the courts' application of RICO's amended forfeiture provisions to attorneys' 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' 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.
RICO and the Forfeiture of Attorneys' Fees: Removing the Adversary from the Adversarial System?,
62 Wash. L. Rev.
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