The arrest of a prominent attorney on charges of destroying evidence in a Connecticut child pornography investigation is raising alarm bells that a law targeting corporate accounting schemes could be used to prosecute lawyers over work done on their clients’ behalf.
“Every criminal defense lawyer in the country has to be alarmed at the indictment,” said New York University law professor Stephen Gillers. “It’s going to upset a lot of assumptions about how lawyers can represent clients. I think this is a boundary-pushing case.”
Philip Russell was charged Feb. 16 with destroying a computer that contained child pornography at Christ Church in Greenwich, Conn. Former President George H.W. Bush attended the church while growing up and funeral services for his parents were held there.
Russell, the 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 was charged under the Sarbanes-Oxley Act, which Congress passed in 2002 after a wave of corporate accounting scandals to make it easier to prosecute such cases. He faces up to 40 years in prison if convicted.
“The case will test the meaning of those new provisions,” Gillers said.
The law, which was aimed at cases involving corporate document shredding, made it easier to prosecute obstruction of justice by requiring only that an investigation was foreseeable rather than already pending. Prosecutors also no longer have to show the defendant acted with corrupt intent to keep evidence from investigators, experts say.
While legal experts agree that lawyers can’t destroy evidence, they are concerned that prosecutors’ use of Sarbanes-Oxley will pressure defense attorneys to betray their clients’ confidences and report potential evidence to authorities or risk prosecution themselves.
“The most troubling aspect is it tries to make lawyers shills or hand maidens for police and government investigators,” said Jon Schoenhorn, president of the Connecticut Criminal Defense Lawyers Association.
Future cases could be murkier than child pornography, involving bank records or other documents and items that might incriminate a client in a future investigation, experts say.
“Lawyers will have to be soothsayers,” said Martin Pinales, president of the National Association of Criminal Defense Lawyers. “They will have to figure out what some prosecutor in the future may or may not be charging.”
Russell, whose wife is a member of the church, does not dispute that he destroyed the computer, said his attorney, Robert Casale. But denies he broke the law.
“He didn’t do it to interfere or compromise any government investigation,” Casale said.
The case dates back to Oct. 7, when an employee at Christ Church discovered images of naked boys while using Tate’s computer, according to the indictment. A day later, church officials sealed and wrapped Tate’s laptop, treating it as evidence, authorities said.
Russell destroyed Tate’s computer after learning it contained images of naked boys, according to the indictment.
“Those who possess child pornography or hinder the prosecution of those who do by destroying evidence and impeding investigations will be prosecuted, particularly when the obstructionists are attorneys and officers of the court,” U.S. Attorney Kevin O’Connor said.
Federal authorities declined further comment because the case is pending.
Schoenhorn said defense attorneys should advise their clients that it’s illegal to possess child pornography, but should leave it up to their client on how to treat the evidence.
“Obviously a lawyer should not destroy evidence, but that begs the question what is evidence?” Schoenhorn said.
Russell plans to challenge the use of the Sarbanes-Oxley Act in his case. Others besides attorneys could be liable if authorities are allowed to apply the law broadly, Casale said.
Federal law has a provision designed to protect attorneys. That shield could be a defense for Russell, but it’s rarely been tested, experts say.
The trial in April could spell the end of a career for Russell, whose recent clients included Andrew Kissel, a wealthy Greenwich developer charged in a multi-million dollar real estate fraud case. Kissell was found slain in his home last year days before he was to plead guilty.
“Any criminal conviction will devastate him,” Casale said. “It’s like capital punishment.”