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Your client, an old society church in a conservative upper-crust area, finds child pornography in an employee’s laptop. The church calls you in to investigate and advise. As part of your investigation, you receive and examine the laptop. The employee is a well-loved member of the church community; your client wants to help him and wants to avoid publicity. You assist your client by sending the employee out of state. Now your client wants you to destroy the laptop, a step that will prevent anyone else from possessing or viewing the child pornography. At the moment, you have no reason to believe that the matter is being investigated by any law enforcement authorities. Can you destroy the laptop? Maybe it’s because we’ve spent so many of our formative years as attorneys in the perilous post-Enron climate, but our guts tell us: No. Yet under applicable Pennsylvania rules and law, the answer to this question appears to be: Yes. In 1991, long before Enron and Sarbanes-Oxley, the Pennsylvania Bar Association Committee on Legal Ethics and Professional Responsibility issued Informal Opinion Number 91-70, advising that “if a client divulges that he is involved in criminal activity for which he is not being charged (there is no prohibition against) suggesting the client cease that criminal activity and get rid of any and all evidence of that criminal activity and start to live a responsible life.” The informal opinion is consistent with the comment to Rule 1.3 of the Rules of Professional Conduct (duty of diligence) that states that a lawyer “should . . . take whatever lawful and ethical measures are required to vindicate a client’s cause or endeavor. A lawyer must also act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client’s behalf.” The committee’s advice is also consistent with Rule 1.6, requiring an attorney to preserve her client’s confidences. The committee’s informal opinion contains the crucial phrase “for which he is not being charged.” Thus, the opinion does not contradict the earlier holding of Commonwealth v. Stenhach, that “physical evidence of crime in the possession of a criminal defense attorney is not subject to an [attorney-client] privilege but must be delivered to the prosecution.” But to be more complete, the informal opinion should have said, “for which he is not being charged or is not under investigation.” If the attorney believed that an “an official proceeding or investigation is pending or about to be instituted”, destruction of potential evidence would constitute obstruction of justice. The critical fact is that at the time of the ethics inquiry, as at the time of the request to destroy the laptop in the above example, there was no known pending investigation or prosecution. Does R.P.C. 3.4, fairness to opposing party and counsel, apply if there is no pending investigation, litigation, or prosecution? The rule states that a lawyer shall not “unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value or assist another person to do any such act.” The comment to the rule includes a warning that applicable law may make it an offense to destroy material for purpose of impairing its availability in a pending proceeding or “one whose commencement can be foreseen.” The comment provides clear advice to the attorney to research Pennsylvania law. But, at the time of the destruction of the laptop, there was no other party, no pending charges, and no hint of law enforcement’s awareness. So, it appears you can legally destroy the laptop, and not run afoul of the Rules of Professional Conduct, right? Not so fast. Despite your belief that no investigation is pending, and that destroying the laptop is consistent with your obligation under the RPC to act in your client’s best interest, you could find yourself in the situation of a prominent attorney from Greenwich, Conn., Philip Russell. Russell’s destruction of a laptop in the fact situation described above resulted in his being charged in a federal indictment for obstruction of justice and destroying evidence in violation of the Sarbanes-Oxley Act. Section 1519, added to the federal criminal code as part of the Sarbanes-Oxley Act, states, in pertinent part: “Whoever knowingly destroys . . . any . . . tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States or . . . in relation to or contemplation of any such matter or case, shall be fined under this title, imprisoned not more than 20 years, or both.” Section 1519 is different from other federal obstruction statutes in that it does not require that the accused “corruptly” destroy documents; does not restrict liability to those actors who are facing a “pending proceeding;” and does not link the “intent to obstruct” element to an official proceeding. Russell does not dispute that he destroyed the laptop. Instead, he has moved to dismiss the indictment, contending that the government cannot establish that he had the requisite intent to obstruct a “hypothetical future federal proceeding that he [did] not, and [could not], know about.” One fact that may create a problem for Russell is that he allegedly gave the employee the name of a criminal defense attorney. However, in doing so, he would be following R.P.C. 4.3(b), the rule that provides that the only advice one can give to an unrepresented individual is to secure counsel. In his motion, Russell also argues that Congress intended Section 1519 of the Sarbanes-Oxley Act only to apply to “records and documents that are not otherwise illegal to possess,” not contraband such as child pornography. Russell’s motion analogizes the laptop to a marijuana cigarette found in an employee’s desk. Neither the employer nor the lawyer representing her would have any obligation to report that discovery to the police. Continued possession of the marijuana would be illegal and its destruction, as long as the lawyer has no reason to believe that the offense is under investigation, is legal. Since its passage, Section 1519 of the Sarbanes-Oxley Act has been attacked as void-for- vagueness, in violation of the Due Process Clause of the Fifth Amendment. A statute is unconstitutionally vague if it fails to define the criminal offense with sufficient precision to enable ordinary people to understand what conduct is prohibited. This constitutional defect is especially problematic when the conduct is not malum in se, but is consistent with the individual’s other legal and ethical obligations. As the U.S. Supreme Court recently said, in what was essentially its post-mortem decision in Arthur Andersen LLP v. U.S., “‘persuad[ing]‘ a person ‘with intent to . . . cause’ that person to ‘withhold’ testimony or documents from a government proceeding or government official is not inherently malign.” The statute may be constitutional if it is construed to apply only to an individual who knowingly intends to obstruct an investigation. Because Russell had no reason to believe that the government was investigating the possession of the child pornography, he did not act with the intent to obstruct justice and should not have been charged. The issue, however, has not been finally decided and may take years to reach the Supreme Court. One noted legal ethics expert, New York University law professor Stephen Gillers, has been quoted as saying about the Russell case, “Every criminal defense lawyer in the country has to be alarmed at the indictment. It’s going to upset a lot of assumptions about how lawyers can represent clients.” In our view, this case is potentially significant for both criminal and civil lawyers, and its outcome is far from clear. In the meantime, what is a lawyer to do? First, if you have tangible items or documents that you think can and should be destroyed in the best interests of your client, examine the pertinent rules and regulations that apply – and tread carefully. Section 1519 includes not just criminal investigations but a virtually limitless breadth of agency interest and action. Second, if possible, seek expert advice from a bar association or an ethics expert. Third, document your actions in a memorandum to the file. Fourth, rethink your decision to destroy any documents or objects that might become evidence in a later proceeding. If you have a question about whether to go ahead, try thinking about how you would explain the item’s destruction in a deposition, or worse yet, to a jury. Litigation associate Karen M. Ibach assisted with the research and writing of this article. ELLEN C. BROTMAN serves as of counsel to Montgomery McCracken Walker & Rhoads’ white collar crime and government investigations group and chairwoman of its professional responsibility group, after several years of being a principal in the firm of Carroll & Brotman. Brotman is also a former assistant federal defender with the Philadelphia Community Defenders Organization. MICHAEL B. HAYES is a senior litigation associate with the firm and is a member of the firm’s professional responsibility practice group. Prior to joining the firm, Hayes served as a law clerk to Justice Russell Nigro of the Pennsylvania Supreme Court.

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