General counsel concerned about facing criminal charges in the US for destroying documents may return to a 'sensible approach' towards document retention following the Supreme Court's decision to overturn Arthur Andersen's conviction, senior lawyers have told the Gazette.

The court ruled last week that the jury instructions in the original trial of the collapsed accountancy giant failed to require evidence of a criminal intent on the part of Andersen before it could be convicted of witness tampering.


In the original trial, the jury had been instructed that a conviction would be possible even if Andersen had acted honestly, and sincerely believed that following the document retention policy was lawful. It destroyed documents relating to audit client Enron following instructions from Andersen in-house lawyer Nancy Temple that employees should adhere to the document retention policy.


Paul Kamenar, senior executive counsel at the Washington Legal Foundation, said: 'The decision of the court sent a strong signal that criminal intent is needed for a knowing violation. Therefore, the Justice Department would probably be reticent in enforcing a new law unless it could prove criminal or evil intent to subvert an agency investigation.


'The implications of this judgment are that companies should be able to follow their normal document retention policy, although the new Sarbanes-Oxley law would seem to prohibit destruction of documents even if no agency proceeding or investigation is under way.'


Stephanie Martz, white-collar crime counsel at the National Association of Criminal Defence Lawyers, said: 'This is a complete legal victory for Andersen but not as close to a vindication as the company would have liked because the court was only able to consider the directions to the jury, not the evidence itself.


'It means that merely having a document destruction policy does not give rise to criminal conduct.


'This type of policy is extremely common both in the US and internationally. Conservative legal advice had dictated that you do not destroy documents until many years removed from the facts. This [court] opinion means companies can start bringing in a sensible document retention policy.'