The New Jersey State Bar Association is seeking leave to participate as amicus curiae in State v. Norcross, et als. to provide guidance in analyzing when criminal charges may be brought against attorneys providing bona fide legal services to a client facing criminal prosecution for activities related to those services. A heightened proof requirement of mens rea should be required to determine if the attorney’s prime intent was to further the criminal purpose before the attorney is susceptible to such charges, said the Association. Geoffrey N. Rosamond, David R. Kott and Benjamin T. Klein authored the brief.
A matter of first impression, the Association addressed the question of whether and when lawyers engaged in the provision of bona fide legal services to a client should be subject to criminal prosecution when the client is charged with engaging in criminal enterprise. The question arises from the state’s indictment of several defendants alleged to have participated in a criminal enterprise led by South Jersey power broker George E. Norcross, III involving political influence and control over government agencies to gain government contacts. One of those defendants is Norcross’ attorney, William M. Tambussi.
“In the civil context, heightened proof of intentionality is already required before an attorney providing legal services to a client may be responsible for damages to a third party,” said the NJSBA in its brief. A lesser mens rea “cannot be allowed while still ensuring that lawyers can adequately represent their clients without fear of inadvertently risking criminal liability or steering so far from it that the client’s entitlement to rigorous advocacy and good-faith testing of the law would be curtailed.”
The Association argues that the Rules of Professional Conduct govern attorney behavior and it is within those guidelines that attorney conduct must be evaluated when accused of criminal behavior through the provision of zealous advocacy. Furthermore, lawyers acting in good faith while vigorously advocating for their clients should not be held to a lesser mens rea standard and charged criminally for engaging in such advocacy. “It is illogical and would lead to an absurd result if any lesser mens rea standard than a purposeful intentionality was applied when assessing an attorney’s mens rea conduct in furtherance of a criminal enterprise when a similarly purposeful intentional standard – a conscious effort to further an improper purpose in litigation – is required in the civil context,” said the NJSBA. Finally, the NJSBA pointed out that the law recognizes that attorneys must be treated differently than other litigants to advance the public policy goal of zealous representation.
The trial court dismissed the indictments against all six defendants, including Tambussi, finding no facts supporting extortion or criminal coercion. Attorney General Matthew J. Platkin filed an appeal of the dismissals in April arguing the trial court dismissed the indictments without a legal basis to do so.
In his analysis of the charges against Tambussi, Judge Peter E. Warshaw, Jr., P.J.Cr. questioned Tambussi’s alleged role in the criminal enterprise. “He represented clients. He was not a business partner of any co-defendant,” said Judge Warshaw in his opinion dismissing the indictments. “Tambussi did what he did in this case by being a lawyer.”
Other amicus groups in the case include the New Jersey State Committee of the American College Lawyers.