a public defender

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I think it’s about time that I blog about Philip Russell. Mr. Russell is a Connecticut attorney who has been indicted by the Federal Government for a violation of the Sarbanes-Oxley Act. His alleged offense is that he destroyed the computer of a client that contained child pornography. At the time this act occurred, he had no reason to believe that the matter was under investigation or that it would lead to an investigation.

Mr. Russell has been charged [DOJ press release] with obstruction of justice under the S-OA.

Russell filed court papers [in March] urging a judge to dismiss a count that involves the Sarbanes-Oxley Act, saying the law was meant to prevent corporate document shredding. The law made it easier to prosecute obstruction of justice by requiring only that an investigation was foreseeable, rather than pending.

“A parent who finds pictures of ‘naked boys’ in his/her child’s backpack would also face a 20-year federal felony for obstruction … if he/she throws the pictures out to insulate the child from future legal difficulties,” wrote Russell’s attorney, Robert Casale.

Recently, the Connecticut Criminal Defense Attorneys’ Association filed an amicus brief in support of Mr. Russell.

The association says in court papers that applying a law aimed at corporate fraud to Russell’s case “effectively criminalizes the role of the attorney as a zealous advocate fulfilling his ethical duty of constitutional dimension to protect his client from self-incrimination. It will open the flood gates enabling the government to criminalize a broad range of traditionally legitimate attorney advice and appropriately zealous advocacy,” the association wrote.

“If attorneys are forced to incriminate their clients in an effort to avoid being charged with obstruction of justice themselves, zealous advocacy becomes impossible, the attorney-client relationship becomes imperiled, and the careful balance of our adversarial system is disrupted,” the association wrote.

If the government is allowed to apply the law to such cases, other attorneys could face prosecution for advising clients not to produce documents that are not identified in a subpoena, trying to persuade government officials to stop investigating a client, or trying to suppress statements made by a client or evidence seized by police, the association contends.

This truly is troublesome and while Russell’s analogy above is a little exaggerated, the point holds true. This act was not passed for this purpose and if used for this purpose will create severe problems in the attorney-client relationship. It takes the Rules of Professional Conduct to a whole new level. What is even more troubling is that prior to the enactment of this Act, there had to be a requirement that the person destroying the evidence knew that an investigation was pending and acted intentionally to obstruct that investigation.

As charged, there is no mens rea requirement for this offense, making it a per se crime. Per se crimes are troublesome anyway, but they become even more dangerous when injected into the highly confidential nature of an attorney-client privilege.

I will attempt to obtain a copy of the amicus brief, but I do not want to use Pacer for this purpose. So if someone has a copy, please send it to me.

I will be keeping a close eye on this and if you are a criminal defense attorney, you should be too.

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