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Letting an outside counsel testify against and help convict a corporate executive who believed his conversation was privileged “eviscerates” the attorney-client privilege, a defense lawyers group has told the U.S. Supreme Court. The National Association of Criminal Defense Lawyers filed its amicus brief [PDF] last week in support of Ian Norris, the imprisoned ex-CEO of the British-based Morgan Crucible Co. Norris is seeking review of his conviction last year for witness tampering in a case that is being closely watched in legal, business, and diplomatic circles here and abroad. Norris, the first foreign national ever extradited on an application from the U.S. Justice Department’s antitrust division, was originally accused of price-fixing in the carbon-brush industry. But a jury found him guilty only of witness tampering and he was sentenced to 18 months in prison last December. The U.S. Court of Appeals for the Third Circuit upheld his conviction, but Norris wants the Supreme Court to overturn it. His lead lawyer, Christopher Curran from White & Case in Washington, D.C., has argued that Norris cannot be guilty of witness tampering for urging colleagues not to give incriminating testimony, because the co-workers had the right to claim the Fifth Amendment against self-incrimination. The NACDL’s amicus brief takes a different approach, focusing entirely on the attorney-client privilege issue, which also had been raised before the Third Circuit. It was written by Jeffrey Green, a partner at Sidley Austin in Washington, D.C., and co-chair of the NACDL amicus committee, along with Joseph Mancano of Pietragallo Gordon Alfano Bosick & Raspanti in Philadelphia. The brief states, “This [Supreme] Court has recognized for over a century that this very type of conversation”—between an executive and an outside counsel representing both the individual and the corporation—”is privileged.” Green was not immediately available for comment. The lower court’s decision endorses government efforts to compel counsel to testify against their clients, the brief says. What’s more, it adds, “when combined with a circuit split that permits defendants in certain parts of the country to be convicted of obstruction for merely attempting to encourage potential witnesses not to talk to a grand jury, even where the witnesses are themselves privileged to refuse to speak, the decision below threatens to erect a wall between attorneys and their clients, and thereby strikes at the very heart of our legal system.” Besides eviscerating the privilege, the conviction burdens defendants’ Sixth Amendment rights to counsel and “renders it impossible for outside counsel to fulfill their ethical duties to both the corporation and its officers,” the brief argues. See also: “Jailed CEO Ian Norris Appeals His Conviction to SCOTUS,” CorpCounsel, July 2011.

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