An employee of a client of yours comes to you with a problem. He has been downloading child pornography on his computer in violation of child predator laws. He has not distributed it and has no information that he is under investigation. However, he is quite ashamed of himself and wants to start over. The client leaves the computer with you and asks you to destroy it. What do you do?
Well, according to this article (related NY Times article here), you better be very careful if you decide to do what your client asks:
NEW HAVEN, Conn. — Federal prosecutors who charged a prominent attorney with destroying evidence in a child pornography investigation want to use his own words and actions in past cases to show he should have known better
Philip Russell was charged Feb. 16 with destroying a computer that contained child pornography at Christ Church in Greenwich. Russell, a former attorney for the church, is accused of obstructing an FBI investigation that led to the January conviction of the church’s music director, Robert Tate, for possessing child pornography.[. . .]
Russell acknowledges he destroyed the computer, but says he had no reason to believe the matter was under investigation or that it would lead to an investigation.
As the Times article notes, Russell pleaded guilty yesterday to one count of assisting the commission of a felony by failing to report it or by concealing it. Had he continued to fight the charge, he would have stood trial on two counts of obstruction of justice, which could have resulted in a far harsher sentence. Nonetheless, the charge that he pled to is a felony, so Russell still faces the possible loss or suspension of his law license.
Before the plea deal, prosecutors contended that Russell should have given the FBI his client’s computer containing child pornography instead of destroying it. Thus, they accused him of obstructing justice under the Sarbanes-Oxley Act, which only requires a showing that an investigation was “foreseeable” rather than pending. Russell had ìsubstantial experienceî in such cases and, thus, prosecutors are contending that he knew that a federal investigation “was foreseeable and likely.”
Russell’s lawyer, Robert Casale, contended that the prosecution’s reliance on his clientís positions in past cases to prosecute him in this case has dangerous implications to the defense of defendants’ rights in the American criminal justice system. “In a democratic society that employs an adversarial system of justice, lawyers must be free to zealously advocate their client’s interests without fear of the consequences that their words will someday be used against them personally,” he wrote.
Casale’s point sure sounds right to me.
Update: Ellen Podgor has more.
