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Washington—It began with an e-mail that any in-house counsel could have written: a reminder to colleagues about the company’s document-retention policy. “It will be helpful to make sure that we have complied with the policy,” wrote Nancy Temple, a Chicago-based in-house lawyer for the Arthur Andersen accounting firm, in October 2001. The policy called for destroying documents when they were “no longer useful” for an audit. But coming as it did, just as government inquiries into the Enron Corp. scandal were about to include Andersen, Enron’s accounting firm, the e-mail led to the criminal prosecution and conviction of the accounting giant for destroying thousands of Enron-related documents, and brought about its collapse. On April 27, the U.S. Supreme Court hears arguments over the meaning of the law Andersen was prosecuted under in a case that has sent shudders throughout corporate legal departments nationwide. “The feeling is, ‘There but for the grace of God go I,’ ” said Stephen Bokat, vice president and general counsel of the U.S. Chamber of Commerce, which filed a brief in the case, Arthur Andersen v. United States. “That memo is the kind of thing lawyers do all the time.” Narrow reading urged Professional organizations from the National Association of Criminal Defense Lawyers to the American Institute of Certified Public Accountants have also weighed in to urge the high court to interpret the law under which Andersen was prosecuted narrowly and to not criminalize routine legal and professional advice. The government, for its part, denies that lawyers will be discouraged from giving proper advice if it wins. In his brief to the court, Acting Solicitor General Paul Clement recounts the massive document shredding and deleting of e-mails at Andersen that followed Temple’s memos. And he ridicules Andersen’s assertion that Temple’s advice was legitimate, “as if American corporations routinely find it proper to instruct their employees to lay waste to vast troves of documents when a government investigation is viewed as highly probable.” The government claims that Andersen was aware a Securities and Exchange Commission (SEC) investigation was likely at least a month before Temple sent her e-mail, noting that it assembled an Enron crisis-response team in September. Not so, said Latham & Watkins partner Maureen Mahoney, Washington-based head of the firm’s appellate and constitutional practice, who will argue the case for Andersen. She argues that while Andersen officials knew the SEC was likely to seek documents from Enron, they did not become aware of the facts that would lead to an SEC subpoena aimed at Andersen until early November-weeks after Temple’s reminder. The SEC served Andersen with subpoenas on Nov. 9, 2001. Nonetheless, the e-mails triggered the government’s only criminal indictment against Andersen: a form of witness tampering that occurs when one “corruptly persuades” others to destroy documents so as to make them unavailable for an official proceeding. As Mahoney points out, to this day no Andersen officials have ever been charged criminally or cited by the SEC for violating securities laws in connection with their work for Enron. The issue before the Supreme Court is whether U.S. District Judge Melinda Harmon of the Southern District of Texas properly instructed the jury on the meaning of “corruptly persuades.” The dispute, which may send justices and others back to grammar texts, is over whether “corruptly” should be given a transitive or intransitive meaning. Andersen and its allies like the transitive sense, which means that to prove the crime, the government would have to show that the persuading was done by corrupt or improper means. Under that interpretation, the e-mail sent by Temple would not constitute a crime. The government sought, and the judge gave, instructions in the intransitive sense-meaning that the government merely had to prove Andersen had some improper intent of impeding an official proceeding, even if Andersen believed its actions were lawful.

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