The Russell Case Could Be Any of Us

Gideon at A Public Defender has been keeping tabs of the Phillip Russell prosecution for the benefit of the criminal defense bar.  You may recall that Phillip Russell is the attorney who is now being prosecuted by the feds under Sarbanes-Oxley, of all things, for having destroyed a computer that allegedly contained pornographic images.  At the time he is alleged to have done so, there was neither prosecution nor threat of prosecution.  When this bizarre case started, I wrote about the SOX abuse aspect and the law of unintended consequences.

The significance of this case for criminal defense lawyers, and their clients, cannot be understated.  Bear in mind, as we discuss this further, that this is no parochial prosecution by some small town prosecutor looking to make a name for himself by bringing bizarre charges.  This comes from the United States Attorney in Connecticut, and we all know that the Department of Justice is above petty political concerns. Sorry, wrong story.

While there’s been no explicit confirmation of this, it is inconceivable that the  US Attorney would prosecute an attorney without express approval from Washington.  Thus, it reflects a policy decision that the DOJ isn’t satisfied with V-6 lawyers turning their unsuspecting clients into agents of the government.  They want the lawyers too.

But wouldn’t the District Court Judge recognize this attempt to hijack the right to counsel from citizens and force lawyers into involuntary servitude to the government?  Check out this quote via Gideon:

[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.

Note the language “would ensue” first.  Lawyers are trained in many things, but seeing into the future with sufficient certainty to be held criminally accountable is not one of them.  Perhaps Judge Nevas’ post-hoc comprehension of events was a bit facile?  But bear in mind, this is to hold a lawyer criminally liable for circumstances that have yet to occur. 

More dangerous is the second part of the quote, where the judge noted that certain professionals are required to inform law enforcement about child abuse.  Notably, lawyer is not in the list.  The reason why is obvious, since the duty of a lawyer is fundamentally different than the others.  By mentioning this, however, Judge Nevas suggests it bears a nexus to the case, there obliterating by implication the different duty of a lawyer.  While I don’t know Judge Nevas’ background, I feel it safe to assume that he went to law school and learned about these things.

Phillip Russell’s lawyer, Robert Casale, nails the problem: 

“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.”

That’s what this is all about.  Nice talk about ethics and professional responsibility aside, since they have long since lost their meaning when it comes to the DOJ (anybody remember the Thornburgh Memo?), the federal government is trying to make new rules for the game.  Lawyers don’t have to become secret government agents when, as a result of their representation of a client, they come into possession of evidence of wrongdoing.  They just have to go to jail for their failure to do so.