TX1: Money was lawfully seized by SW from attorney’s bank account as proceeds of theft

The state seized $80,600 from a criminal defense lawyer’s bank account transferred from IOLTA account that was alleged to be the proceeds of crime. The attorney claimed it was earned attorney’s fees under his retainer agreement. “At the hearing, Fisch admitted on the stand that, when he received the money from Pharris and placed it in an IOLTA account, the money belonged to Pharris. He also testified that the money was not his until it was earned. He acknowledged that he had not brought any documentation to establish when any of the money was earned. Instead, he explained that proof of his earning the money would come from his testimony. Fisch testified that he had earned the money before he learned it was stolen, but he did not provide any specific information to support this assertion.” The receiver of stolen money acquires no interest in the property superior to that of the victim, even when in good faith. Here, however, the attorney admitted he knew the money was the proceeds of theft before he earned it. The seizure of the money did not violate the attorney’s Fourth Amendment rights. Finally, the attorney can’t vicariously assert the Sixth Amendment rights of the client that the seizure of the fees denied the client the right to counsel. In re Approximately $80,600.00, 2017 Tex. App. LEXIS 9296 (Tex. App. – Houston (1st Dist.) Oct. 3, 2017).

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