St. Thomas Law Review
The remedy of restitution, used to prevent unjust enrichment, is a fundamental right firmly entrenched in the common law. This is especially true in cases where a victim seeks equitable relief to require the return of money or property obtained as a result of fraud. However, should the defrauded person always be entitled to be made whole? Similarly, the remedy of forfeiture is also a deeply rooted legal concept, finding its beginnings in early English common law. Originally, forfeiture was a punishment annexed by law to some illegal act. However, the concept of deodand now not only includes forfeiture of "any personal chattel which was the immediate occasion of the death of any reasonable creature, but has also expanded to all monies and properties derived from criminal statutes, such as Racketeer Influenced and Corrupt Organizations Act (RICO) or Continuing Criminal Enterprise (CCE). Under these statutes, a forfeiture need not be predicated upon a criminal conviction. The government has the right to obtain the property suspected of being the fruit of ill-gotten gains, before it is proved in court that the government's suspicions are true. Some would argue that such prejudgment forfeiture results in the visceration of the presumption of innocence. Moreover, in terms of the ability to engage counsel, it works a terrible hardship on the possessor of the forfeited property. However, should the doctrine of forfeiture always apply?
Leonard D. Pertnoy, Attorney's Right to Retain Fees Derived from a Fraudulent Law Suit, An , 8 St. Thomas L. REV. 533 (1996).