Here is the amicus curie brief of the National Association of Criminal Defense Lawyers in Arthur Andersen’s appeal of its witness tampering conviction to the United States Supreme Court. The NACDL’s brief addresses the prejudicial impact that the Andersen conviction will have on the attorney-client relationship, and notes the following in its Summary of the Argument:

This case places lawyers at risk of investigation, prosecution, and imprisonment for doing their jobs. When a lawyer represents a client in connection with a potential government investigation, one of the lawyer?s goals may appropriately be to prevent the government from developing evidence against the client. Within the bounds of ethics and the law, that is what lawyers do. . .
In prosecuting the accounting firm Arthur Andersen LLP (?Andersen?), the government singled out the conduct of an in-house lawyer, Nancy Temple. Her crime, in the government?s view, was providing legal advice even before the SEC had issued a subpoena or launched a formal investigation. Specifically, she reminded Andersen employees to adhere to a lawful, established document retention policy and recommended changes to a draft memorandum ? actions that lawyers undertake every day. According to several of the jurors, her edits to the draft memorandum were the principal basis for Andersen?s conviction.
By criminalizing this conduct, the Fifth Circuit disregards the traditional role of lawyers, which includes a duty to protect their clients by deflecting potential government investigations. In the court?s view, this goal itself is ?improper? and reflects a ?corrupt? purpose. Any action by the lawyer ? such as vigorously asserting privileges, counseling potential witnesses about their rights, or, as here, advising employees about a company?s document retention policy and editing a draft memorandum ? can violate the witness tampering statute if it is motivated even in part by this goal. Lawyers in the post-Andersen era now will operate in fear of investigation and prosecution. Those fears inevitably will dampen the zealousness of their advocacy. And that will imperil the fair administration of justice.
If allowed to stand, the decision below also will damage the attorney-client relationship by engendering potential conflicts of interest between lawyers and clients. On every close call regarding tactical and legal issues ? and on many that are not so close ? lawyers will have to weigh in the balance their own potential exposure to criminal liability. Yet the fundamental tenet of the attorney-client relationship is that the lawyer?s commitment to the client must be undiluted by concerns for his or her own personal interests. Moreover, by expanding the government?s ability to investigate counsel, the Fifth Circuit?s decision undermines the communication between attorney and client. If the advice of the Andersen lawyer here amounts to witness tampering, then communications long assumed to be privileged are in jeopardy of disclosure under the crime-fraud exception. Clients who are uncertain of the loyalty of their counsel or the confidentiality of their communications will simply not disclose information their lawyers need to know. That, too, imperils the fair administration of justice.

As a technical aside, neither the Anderson brief nor the NACDL brief in this SCOTUS case are bookmarked or linked in Adobe Acrobat to faciliate ease of review. Get with it, appellate lawyers. As federal courts are increasingly relying on electronic versions of pleadings and briefs, using Adobe Acrobat’s bookmarking and linking tools is an easy way to make such documents more reader-friendly. And, as any judge or law clerk will tell you, a brief or pleading that is easy to read is always easier to adopt.