Can a lawyer be indicted for issuing a bad legal opinion?

Great article by Scott Horton at Harper Magazine.

Scott wrote:

Alice Fisher, the head of the Bush Justice Department’s Criminal Division—whose resignation was just announced—apparently believes the answer is “yes,” because she signed the charges against Miami lawyer Ben Kuehne. Among other things, Kuehne had previously advised Vice President Al Gore in the 2000 Florida recount litigation.

Read my analysis of the case in the current issue of the American Lawyer, just out:

Is my client paying me with tainted money? That's a routine concern of criminal defense counsel. When the cases are high-profile and involve money laundering charges, the stakes, the complications, and the headaches rise accordingly.

Now the U.S. Department of Justice may be giving defense lawyers more to worry about. In an unprecedented step, the Justice Department has filed criminal charges against Miami lawyer Ben Kuehne. The government argues that Kuehne is guilty of money laundering because he gave an opinion that a Medellín drug kingpin had enough money-independent of his drug operation-to pay his legal fees, and that the opinion was wrong. The charges have provoked a storm of outrage and disbelief among the Miami bar and raise troubling questions about Justice's attitude toward a defendant's right to counsel.

The story starts in 2002. Roy Black, a leading figure in the defense bar whose clients have included Rush Limbaugh and William Kennedy Smith, won a beauty contest to represent Fabio Ochoa-Vásquez, a Colombian narcotrafficker. At the beauty contest, Ochoa told runner-up Milton Hirsch: "Mr. Black must be a better lawyer because he charges so much more than you do." Black and his cocounsel ultimately charged Ochoa $5.3 million for the defense.

Better lawyer or not, Black had a novel approach to the problem of tainted money. He hired Kuehne to examine Ochoa's finances and offer his assessment about whether the money was clean.

Kuehne is a former president of the Dade County Bar Association and a member of the board of governors of The Florida Bar. He served as counsel to Al Gore during the bitter 2000 Florida recount contest. He has been deeply engaged in community service matters and is uniformly seen as a pillar of the legal community.

Ochoa is an admitted drug lord. But he also comes from serious, established money in Medellín. His family owned and operated several businesses long before he took the plunge into the riskier and more profitable drug trade. Kuehne's complex task was to sort through these different sources and determine which money was and was not tainted. He concluded that Ochoa has enough clean money to pay Black. Kuehne billed for this work by his hourly rate, drawing about $200,000 for his effort.

The government says Kuehne was wrong, and that by giving opinions that the money was clean, Kuehne was himself engaging in criminal money laundering. Kuehne was indicted in February.

Following the indictment, the Miami bar rang with contemptuous denunciations of the Bush Justice Department. Many Miami lawyers angrily reject the idea that what Kuehne did-even accepting the government's allegations as true-was a crime of any sort. He may have given a bad opinion, they note; he may even have been sloppy or inept in conducting the due diligence behind it. But they bristle at the suggestion that issuing a legal opinion in good faith can be a crime.

Making an odd situation even odder: The U.S. attorney in Miami, R. Alexander Acosta, and his entire office, have recused themselves from the case. Their withdrawal is total. Equally noteworthy is the fact that the case is being shepherded at an extraordinarily high level in Washington, D.C., involving political appointees, most prominently the controversial head of Justice's criminal division, Alice Fisher. She signed the indictment herself and has been directly involved in the management of the case.

The Justice Department insists that it will be vindicated when the evidence is brought forward. Maybe so, but as it stands, I have difficulty understanding why a criminal complaint, rather than civil, was filed. The issue at the crux of this controversy is a defendant's right to counsel. The Justice Department's position would lead all but the most intrepid attorney to refuse an engagement in any case where drug money is an issue. The accused in those cases would have to resort to a public defender. It is unclear exactly what public interest would be served by requiring that all these cases be handled by public defenders at taxpayers' expense; indeed, the Justice Department advances no policy-based explanation for its position.

Congress specifically excluded attorneys' fees from the criminal anti-money-laundering laws. By doing so, Congress expressed its intention that the Justice Department raise concerns about fees under civil law, rather than criminal. This ensures that a prosecutor's questions about tainted money do not chill an accused's ability to retain the counsel of his choice. By prosecuting Kuehne, the Justice Department is demonstrating its indifference to the statute. This is a disturbing position for an organization that is-in theory at least-committed to the enforcement of the law.

http://www.law.com/jsp/PubArticle.jsp?id=900005634208