Paying Daniel Webster: Critiquing the Contract Model of Advancement of Legal Fees in Criminal Proceedings

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Employees facing the potential of criminal prosecution for white collar crimes have a keen interest in securing the best defense counsel available. Organizational employers, potentially facing prosecution in their own right, recognize the value of advancement in aligning the legal strategy of individual defendants with its own defense strategy. This article examines the contract model which is used to structure advancement of legal fees to employees facing criminal investigation - a 'contract' which is frequently allocates 'too much' advancement to those with significant bargaining power, while imposing legal or practical restrictions on other employees. The article posits that the use of the current contract model does little to advance the traditional goal of advancement of encouraging prudent risks taking. It argues that the use of a contract model, focused on almost exclusively on the rights of the parties to the agreement, discourages consideration of the interest of the larger community in fair and efficient prosecution of white collar crimes. The article proposes adoption of a duty model as an alternative to the contract analysis which currently dominates advancement jurisprudence. It argues that the use of a duty model will allow for a reevaluation of the purpose of advancement in white collar criminal proceedings and will encourage conscious consideration of legitimate interests beyond those of the immediate parties to the bargain.

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