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. Once boasting 28,000 employees, it now has about 200.
On Wednesday, the Supreme Court hears arguments over the meaning of the law under which Andersen was prosecuted, in a case that has sent shudders throughout corporate legal departments and lawyers of every stripe nationwide.
“The feeling is, ‘There but for the grace of God go I,’ ” says 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.” While not addressing specifically the legality of what Temple did when she did it, Bokat asks, “Should it have caused the collapse of a whole company?”
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.
“This case places lawyers at risk of investigation, prosecution, and imprisonment for doing their jobs,” the NACDL warns in its brief to the Court. The brief, written by Robert Weiner of D.C.’s Arnold & Porter, cites as examples that attorneys are now imperiled when they lawfully advise clients not to volunteer information to a grand jury or not to include unnecessary information in a report to the Securities and Exchange Commission.