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Phil Russell, the embattled Greenwich attorney who pled guilty to misprision of a felony for destroying a client’s laptop which contained pronography, was sentenced to 6 months home confinement, 240 hours of community service and a $25,000 fine.

Russell, a former attorney for Christ Church in Greenwich, was charged with obstructing an FBI investigation that led to the conviction of the church’s music director, Robert Tate, for possessing child pornography.

Russell acknowledged he destroyed the computer, but said he did not expect an investigation. A prosecutor said Russell knew an investigation was likely, noting that Russell gave Tate the name of a criminal defense lawyer.

As previously noted, this resolution, albeit great for Russell, leaves many unanswered questions. Hopefully they’re never asked again.

Although he hasn’t been sentenced yet, Phil Russell has been suspended from the practice of law for six months.

State Superior Court Judge Richard Robinson approved an agreement between Philip Dale Russell, 48, and the judicial branch¹s Statewide Grievance Committee in Stamford yesterday to suspend Russell’s law license for six months, according to Marc A. Dubois, chief disciplinary counsel for Connecticut.

“We think it is an appropriate disciplinary response to the facts of the case,” Dubois said. Robert Casale, a Branford attorney representing Russell, said the Grievance Committee could lengthen the on how much jail or probation time Russell receives. It would be unorthodox for the Grievance Committee to readmit Russell during his period of probation, Casale said.

My thoughts on this are well known. It is sad that it had to come to this.

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.

In a bit of a surprise, attorney Philip Russell pled guilty earlier today. Not to the original charge of obstruction of justice, but to a subbed down charge of “misprision of felony”. What it basically means is that he knew of a felony and didn’t report it.

While the bigger issue of whether what he did should be a crime goes unresolved and is left for another attorney on another day, this plea itself raises some questions. Attorneys are under no ethical duty to report a crime unless they believe there is a substantial risk of death or serious physical injury. In this case, the crime was possession of child pornography. No such risk there.

So what does this mean, then? Does this still mean that if attorneys do not report any sort of crime, they can be prosecuted? Does this make mandatory reporters of us all?

I’m not sure that anyone should breathe a sigh of relief - except, perhaps, Attorney Russell himself.

Most recent coverage here and here and all previous coverage here and the Cool Justice Report has a collection of links here.

Image license details here.

On Wednesday, Judge Nevas denied Philip Russell’s motion to dismiss. The prosecution shall continue. In his decision, the judge said:

“In sum, there is no merit to Russell’s arguments, which essentially ask the court to make a factual determination that the government cannot prove either a nexus or intent,” Nevas wrote. “It is well settled that such factual determinations are for a jury, not the court, to decide after hearing the government’s proof and being instructed on the law.”

Russell had argued that he cannot be guilty of obstructing an FBI pornography investigation because he was unaware that the computer had become the subject of a secret FBI investigation two days before he destroyed it.

Because he was unaware of an investigation, Russell argued, he lacked the intent necessary to be convicted of obstruction of justice.

Previous Phil Russell coverage here.

The mainstream media seems to have reported on Philip Russell’s hearing over the weekend. Here are stories from the Greenwich Time, the Courant and the Connecticut Post. The story everywhere, however, is the same.

If prosecutors are allowed to pursue cases against defense lawyers caught in similar predicaments, their ability to defend clients could be compromised, said Hartford defense lawyer Moira Buckley, who addressed the court on behalf of the defense lawyers group.

“To me, it betrays a mentality that I find kind of frightening,” she said.

The prosecutors dropped this nugget:

Prosecutors argued that Russell did not face any such charge because he did not “knowingly” possess the pornography — a standard that was not met in this case because the church sealed the laptop with tape and Russell did not try to turn on the computer to see if the images were indeed of naked boys. But by trying to take the computer apart, Russell tampered with evidence and violated the Sarbanes-Oxley Act, prosecutors said.

“One thing Mr. Russell did that he can’t do is he destroyed it,” Assistant U.S. Attorney Peter Jongbloed said.

Oh. So he wasn’t in trouble because he didn’t knowingly possess anything illegal. So…if he had not destroyed the computer and it had been turned over, he wouldn’t have been prosecuted under the theory that he should have known that it possessed pornography. Yep.

Indeed, the judge almost made that argument:

[Judge] Nevas fired back that “a lawyer certainly could see that an official proceeding would ensue. He knew this computer contained images of children engaged in terrible acts.”

Nevas also maintained that, under state law, certain people like doctors, teachers and clergymen are required to inform law enforcement authorities of evidence of child abuse.

Here’s the bottom line:

Robert M. Casale, Russell’s lawyer, said after the hearing that a conviction would send a message to all defense lawyers: “By virtue of the case of the United States against Philip Russell, you’re all conscripted to be agents of the government. And if you don’t act in that capacity, we’ll prosecute you.”

A hearing in the matter of attorney Philip Russell was scheduled for today. News media haven’t picked up the story yet, but from what I’ve heard, there was no decision from the bench. It does seem as though the hearing went well. No word on whether the judge will grant or deny the motion to dismiss.

Previous coverage here and here. As soon as there is something, I will post it.

For those who are interested, I have found a copy of the amicus brief [pdf] filed by the CCDLA in support of Philip Russell. Via Andy Thibault at The Cool Justice Report.

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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