This prosecution policy applies only to property transferred to an attorney as a bona fide fee for representation in a criminal matter. The question whether a fee is bona fide will have to be answered on a case-by-case basis; however, the fundamental inquiry is whether the fee was paid in good faith without fraud or deceit for representation concerning the defendant's personal criminal liability.
Thus, for example, if a defendant's legal fees are paid by another in an effort to protect that other person's identity or legal interests or any other interests of the overall criminal venture, such payments may not be bona fide. However, fee payments by third parties, standing alone, do not create any presumption of lack of bona fides, so long as the attorney's loyalty and obligation remains to the client and the third-party payment does not create any conflicting obligation to the payor.
Similarly, if there is a reasonable basis to believe that the fee transaction was a fraudulent or sham transaction designed to shield the property from forfeiture, hide its existence from governmental investigative agencies, or was conducted for any purpose other than for legitimate legal representation, the fee would not be bona fide. Generally, a transaction is a sham or fraud if there is evidence that a scheme or plan existed to maintain the client's or any other person's or corporation's interest in the asset or the ability to use it beneficially. This may be established, for example, by proof that the value of the property transferred far exceeded the value of the services rendered and that there was an agreement by the attorney to transfer the asset or some portion of it back to the client, a third party or any other legal entity. There need not be proof that the attorney was a participant in the criminal activity giving rise to the property or that he otherwise violated the law. Quite obviously, however, proof that an attorney knowingly acted in a manner as to aid and abet or serve as an accessory after the fact to a money laundering transaction or otherwise to facilitate criminal conduct would lead to the conclusion that the property was not a bona fide fee.
[cited in JM 9-105.600]