Defense Attorney’s Arrest Raises Questions About Law

The arrest of a distinguished defense lawyer who allegedly destroyed evidence in a child pornography case is raising concern that a law aimed at corporate accounting scams could be enforced to indict attorneys over work performed on their clients’ behalf.  

“Every criminal defense lawyer in the country has to be alarmed at the indictment,” said Stephen Gillers, a New York University law professor. “It’s going to upset a lot of assumptions about how lawyers can represent clients. I think this is a boundary-pushing case.”

Details of the Case

In February, Philip Russell was arrested on charges of destroying a church computer that had child pornography on it—evidence that was part of an FBI investigation that led to the conviction of Robert Tate, the music director at the church.

Russell, the former church attorney, is facing charges under the Sarbanes-Oxley Act, a law passed in 2002 after a flood of corporate accounting scandals necessitated an act that would make prosecuting such cases easier. If Russell is convicted, he could face up to 40 years in prison.

Sarbanes-Oxley Act

The statute, which targets cases that involve the shredding or destroying of corporate documents, makes it easier for prosecutors to charge those involved in the obstruction of justice. Prosecutors don’t have to prove that the defendant acted with fraudulent intent to hold evidence from authorities.

Although legal experts agree that attorneys can’t destroy evidence in a case, they are worried that this law will force defense lawyers to betray their clients’ trust and submit any possible evidence to investigators or face charges themselves.

“The most troubling aspect is it tries to make lawyers shills or hand maidens for police and government investigators,” said John Schoenhorn, president of the Connecticut Criminal Defense Lawyers Association.

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