Our Connecticut law maven, Gideon, brought the blawgosphere the news about midday yesterday that Phillip Russell, whose story has been followed here for some time, bit the bullet. Russell pleaded guilty in the United States Court for the District of Connecticut of the crime of Misprision of Felony. Remember kids, Connecticut is in the Second Circuit, just like New York, so this is not merely a parochial anomaly, and matters to New York lawyers.
While most of us will recall this offense from law school days, it’s unlikely that we’ve heard the words since. I can’t recall a single prosecution for misprision of felony in the past 25 years. The elements of the crime are knowledge of the commission of a felony offense and failure to report it to law enforcement.
From the Russell standpoint, it appears that his deal puts him at a level 11 (with a criminal history of 1), making him eligible for probation in Zone C of the United States Sentencing Guidelines. Thus, while rolling the dice on a trial might well have been important for the rest of us, Philip just cut his exposure down to the bone. According to an unattributed quote, Russell decided not to be a martyr for the cause. Completely understandable.
But the cause will most assuredly suffer because of this outcome. Indeed, the cause may suffer worse because of the Misprision plea than it would under the Sarbanes-Oxley charge, which brought the allegations far afield of the Congressional intent of SOX and implicated a whole lot of other issues that would have tied up the Circuit for a long time. Of course, we will never know now whether this journey into SOX fantasy world would fly with the Circuit, as a plea puts the issue to bed.
Before the deal was cut, Russell’s lawyer, Robert Casale, was quoted as saying, “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.”
He as right then. He’s still right now. Even more so given the plea to misprision, which goes directly to a criminal defense lawyer’s duty to protect client privilege. All criminal defense lawyers, even Mark Bennett’s V6s, know that they have an ethical duty to keep their traps shut when they know about their client’s criminal conduct. It goes to the very heart of the 6th Amendment, and even the staunchest Republican (especially the staunchest Republican?) wants their lawyer to devote themselves to the client first. They all get it. If lawyers disclose confidences about bad stuff clients do, no one can ever tell their lawyer anything bad, and lawyers can never adequately defend. The primary weapon in the criminal defense lawyers’ arsenal is knowledge. Without it, the lawyer is unarmed.
According to the Russell case, that is done. We can no longer safeguard client confidences, except at risk of becoming a criminal ourselves and at risk of conviction.
While Alberto Gonzalez may be smiling today, thinking that he’s finally contributed something to the American criminal law landscape that will be worthy of his legacy, I have to wonder if Judge Michael Mukasey is proud of what happened here. Had Russell held out a little longer, would Judge Mukasey have seen the fundamental error of this prosecution, and put an end to it as one of the most ill-considered directions the DOJ could possibly take. I want to think so. I really want to.
But the problem isn’t limited to those criminal defense lawyers whom the government finds reason to believe “know something.” All criminal defense lawyers “know something,” and everyone knows that we “know something.” It inherent in the nature of our work.
So this gives the government a weapon to be pulled out at will and aimed at lawyers they don’t like.
Who doesn’t the government like? How about lawyers who fight too hard. Lawyers who are too successful. Lawyers who are uncooperative. Lawyers who are too imaginative. Lawyers who are too radical. Lawyers who don’t advise their clients to rat.
You see, the government needs criminal defense lawyers. They can’t convict people without them. But they don’t need disagreeable criminal defense lawyers, just warm bodies willing to stand there and smile. Some make the government’s day so much easier than others.
Should we anticipate wholesale indictments of criminal defense lawyers following this case? I wouldn’t, but I can easily foresee the surgical use of this very sharp weapon going forward. Worse yet, one day in the future we will take it for granted that criminal defense lawyers “are required by law” to squeal on their clients. When that day comes, remember that it started here.
While most of us will recall this offense from law school days, it’s unlikely that we’ve heard the words since. I can’t recall a single prosecution for misprision of felony in the past 25 years. The elements of the crime are knowledge of the commission of a felony offense and failure to report it to law enforcement.
From the Russell standpoint, it appears that his deal puts him at a level 11 (with a criminal history of 1), making him eligible for probation in Zone C of the United States Sentencing Guidelines. Thus, while rolling the dice on a trial might well have been important for the rest of us, Philip just cut his exposure down to the bone. According to an unattributed quote, Russell decided not to be a martyr for the cause. Completely understandable.
But the cause will most assuredly suffer because of this outcome. Indeed, the cause may suffer worse because of the Misprision plea than it would under the Sarbanes-Oxley charge, which brought the allegations far afield of the Congressional intent of SOX and implicated a whole lot of other issues that would have tied up the Circuit for a long time. Of course, we will never know now whether this journey into SOX fantasy world would fly with the Circuit, as a plea puts the issue to bed.
Before the deal was cut, Russell’s lawyer, Robert Casale, was quoted as saying, “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.”
He as right then. He’s still right now. Even more so given the plea to misprision, which goes directly to a criminal defense lawyer’s duty to protect client privilege. All criminal defense lawyers, even Mark Bennett’s V6s, know that they have an ethical duty to keep their traps shut when they know about their client’s criminal conduct. It goes to the very heart of the 6th Amendment, and even the staunchest Republican (especially the staunchest Republican?) wants their lawyer to devote themselves to the client first. They all get it. If lawyers disclose confidences about bad stuff clients do, no one can ever tell their lawyer anything bad, and lawyers can never adequately defend. The primary weapon in the criminal defense lawyers’ arsenal is knowledge. Without it, the lawyer is unarmed.
According to the Russell case, that is done. We can no longer safeguard client confidences, except at risk of becoming a criminal ourselves and at risk of conviction.
While Alberto Gonzalez may be smiling today, thinking that he’s finally contributed something to the American criminal law landscape that will be worthy of his legacy, I have to wonder if Judge Michael Mukasey is proud of what happened here. Had Russell held out a little longer, would Judge Mukasey have seen the fundamental error of this prosecution, and put an end to it as one of the most ill-considered directions the DOJ could possibly take. I want to think so. I really want to.
But the problem isn’t limited to those criminal defense lawyers whom the government finds reason to believe “know something.” All criminal defense lawyers “know something,” and everyone knows that we “know something.” It inherent in the nature of our work.
So this gives the government a weapon to be pulled out at will and aimed at lawyers they don’t like.
Who doesn’t the government like? How about lawyers who fight too hard. Lawyers who are too successful. Lawyers who are uncooperative. Lawyers who are too imaginative. Lawyers who are too radical. Lawyers who don’t advise their clients to rat.
You see, the government needs criminal defense lawyers. They can’t convict people without them. But they don’t need disagreeable criminal defense lawyers, just warm bodies willing to stand there and smile. Some make the government’s day so much easier than others.
Should we anticipate wholesale indictments of criminal defense lawyers following this case? I wouldn’t, but I can easily foresee the surgical use of this very sharp weapon going forward. Worse yet, one day in the future we will take it for granted that criminal defense lawyers “are required by law” to squeal on their clients. When that day comes, remember that it started here.
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I’ve been trying to figure out what to think about this case and I haven’t a clue.
The original charge made some sense to me: The lawyer must have done something wrong by advising his client to delete those files, even if maybe SOX doesn’t cover it. Perhaps aiding and abetting? Accessory? I have no idea what those terms really mean, but I’m pretty sure there’s a difference between not telling police your client is guilty of murder and advising your client how best to clean blood off a hardwood floor.
On the other hand, the crime was one of possession of porn. By telling the client to delete the files, didn’t the lawyer just get him to stop committing a crime?
Consider the charge in a simpler context. Mom comes home to find junior has a kilo of coke under the bed. What does Mom do?
A. Call the cops on Junior and turn over the evidence
B. Leave it alone
C. Flush it down the toilet
D. Ask Junior if Mom can have a piece of the action and sell it on the street for pin money
The government’s position is A. Russell’s position was C. D is obviously criminal and B accomplishes nothing.
I know. That’s kind of what I was saying in my last paragraph.
But suppose Mom found a knife with blood on it. Mom might throw it away, but what should a lawyer do?
(By the way, I think flushing a kilo of coke down the toilet would probably get junior killed if he’s just holding it.)
Or here’s one I find fascinating: Your client is accused of stealing a laptop from someone’s car, but police don’t find it. The first time he comes to your office, he brings the laptop in and asks you what to do with it.
There are two critical constants that distinguishes the Russell case and my hypothetical: There was no direct harm to another person and there was no pending police investigation. If there is a pending investigation, or an inherently necessary one (i.e., a dead body in an alley, which will eventually be found and start an investigation), then the scenario changes.
As for junior getting whacked for not safeguarding the coke, remember that we’re dealing with simple hypos. We can always throw in a multitude of unusual circumstances that change the situation.
The classic law school ethics problem, now made more difficult. You’re basically screwed.
Classic Ethics Problem: Lawyer is paid by client in cash. In counting the money, he finds that two $100 bills are stuck together. Question: Does lawyer tell his partner?
If we put aside the hypotheticals for a moment – what will this mean for your practices? Will anyone be more hesitant to keep certain information in confidence? Will you have lengthy disclosure discussions with potential clients? Will you just keep client confidences the way you’ve always been, notwithstanding the government’s decision to prosecute Russell?
Great question OS. I don’t have an answer for myself as yet, and don’t expect I will until I’m confronted with the problem directly. I know what I won’t do, and that is rat out my clients or breach confidence. Of course, that’s not much of an answer.
Anybody else have any ideas about this?
Keep doing the same thing you’ve been doing, I guess. I’d rather fight prosecution than rat out a client?
Further thoughts on the Russell plea and its implications
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A Most Extraordinary Raid
The