Further thoughts on the Russell plea and its implications
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In reporting Phil Russell’s guilty plea last week, I touched on what this means for all of us and Scott at SJ explored it a bit further, but I don’t think anyone has any real answers yet.
So I’m going to give it another shot. What are the implications of this guilty plea, if any? This is a tricky intersection of attorney-client confidentiality and the fear of prosecution.
Attorney Russell was charged with obstruction of justice for destroying a computer that contained evidence for a future prosecution. He pled to failing to report a felony.
Some have noted the distinction between failing to report a felony committed by your client and by someone else. In Russell’s case, his client was the church, not the employee whose computer was in question.
So does this mean that the attorney-client privilege would be a defense (or would it be a bar) to prosecution for failing to report a crime/obstructing justice, where the crime has been committed by your client? Is that what this hinges on? Whether you represent the individual whose felony you failed to report?
I don’t think this is as instructive as it might seem. Consider this scenario: Your client tells you that his cellmate has committed crimes other than the one he is arrested for. Do you then have to report that cellmate and that crime? Do you have to advise your client that he has to report the crime?
Obviously this teaches us things we cannot do: We cannot personally destroy evidence/contraband and we cannot tell our clients to do that either. Where does that leave the attorney?
I guess I still don’t have an answer, but I am a little surprised at the lack of discussion in the blogosphere on this topic, which certainly impacts us all.
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Gideon,
I wasn’t under the impression, before the Russell case, that we were permitted to destroy evidence or advise our clients to do so. Were you?
I see a successful misprision prosecution — for failing to report a felony, the knowledge of which comes from privileged communications — as a much worse precedent than a tampering prosecution.
The plea papers in the misprision case might be enlightening, but they’re not showing up on PACER yet.
[quote comment="6232"]
Gideon,
I wasn’t under the impression, before the Russell case, that we were permitted to destroy evidence or advise our clients to do so. Were you?
I see a successful misprision prosecution — for failing to report a felony, the knowledge of which comes from privileged communications — as a much worse precedent than a tampering prosecution.
The plea papers in the misprision case might be enlightening, but they’re not showing up on PACER yet.[/quote]
Of course not. What I was attempting to say is that we don’t know anything new.
I agree that the misprision plea is far more worrisome than the obstruction prosecution.
Without venturing an opinion on Phil’s plea, I think it instructive to note the requirement in the federal misprision statute of “conceals”. Would simple knowledge of a felony without reporting suffice? Does concealment exist before one is asked? Is “destruction” of evidence “concealment”?
My old (4th ed.) Black’s says: To hide; secrete; withhold from the knowledge of others…
Does the above change anyone’s opinion?
Bob,
Caselaw — at least in the 2nd, 5th, 9th and 10th circuits — requires that the accused take affirmative steps to conceal the crime. Failing to report a felony is not enough.
Mark,
Without beating the proverbial horse, would silence upon being questioned about the evidence be considered an “affirmative step[s]to conceal the crime”?
It would seem so and that drags us on to some tricky turf.