Scarinci: Attorneys and Ham Sandwiches (Norcross, Part 4)

In 1985, former chief judge of the NY Court of Appeals said, “a prosecutor can indict a ham sandwich.”  The Norcross indictment against two prominent NJ attorneys may very well be the latest illustration of that hyperbole.

Phillip Norcross is one of the most prominent attorneys in New Jersey.  He is the managing partner of one of the state’s oldest and most respected law firms.  He should certainly not have become a ham sandwich or a side-show any criminal indictment.  His indictment in his brother’s criminal case sent a shock wave through NJ’s legal community.

Phillip Norcross isn’t denying the facts set forth in the indictment against him. Instead, he vehemently argues that his actions are not criminal. Much like the arguments raised by his co-defendant William M. Tambussi, Norcross maintains that prosecutors are attempting to criminalize the practice of law.

“For purposes of this motion, Philip Norcross does not deny any of the facts alleged in the indictment. He denies that they constitute crimes,” his motion to dismiss states.

Phillip and his brother George Norcross are accused of operating a criminal enterprise that used threats and intimidation to secure development rights along the Camden waterfront, and then benefiting from millions of dollars in tax credits. The indictment further alleges that the Norcross Enterprise improperly influenced government officials and redevelopment legislation to further the enterprise’s interests.

Charges against Phillip Norcross

Philip Norcross is a shareholder with Parker McCay and performed legal work on behalf of his brother. He is also the Chair of the Cooper Foundation, the charitable arm of Cooper Hospital, which he also represented. The indictment charges Philip Norcross in thirteen counts with racketeering involving criminal coercion, criminal threats, theft by extortion, financial facilitation of criminal activity, and official misconduct on theories of co-conspirator and accomplice liability.

According to the indictment, Phillip Norcross lobbied for language favorable to the “Enterprise” to be included in the Economic Opportunity Act.  He also allegedly encouraged Cooper’s Ferry Partnership to partner with a specific investor (one allegedly favored by George Norcross) for redevelopment. Prosecutors also maintain that Philip Norcross participated in contentious negotiations with rival developer Carl Dranoff, from whom the Enterprise ultimately secured property rights required for redevelopment, as well as gave City of Camden officials and the Camden Redevelopment Agency (CRA) advice on how to secure those rights.

Arguments to Dismiss the Indictment

In seeking to dismiss the indictment, Phillip Norcross first argues that none of the allegations against him is sufficient to allege a crime. According to Norcross, his conduct is not criminal, but merely good lawyering. “None of these actions is remotely criminal; all are the type of things lawyers do every day,” the motion states. “It is not a RICO violation, a criminal threat, theft by extortion, money laundering, official misconduct or any other crime for a lawyer to engage in tough negotiations with his counterparties or have both the access and the ability to engage with and make helpful suggestions to elected officials.”

With regard to his involvement in the drafting of the Economic Opportunity Act, Phillip Norcross’ motion to dismiss emphasizes that the indictment does not allege that he was paid for doing so or that he violated any lobbying rule or regulation.

As for his involvement in his brother’s real estate transactions on the Camden waterfront, he contends that using his access to city officials to accomplish his clients’ goals, even at the expense of a rival developer, is also not a crime.

“None of this is criminal; all of it is standard fare for lawyers,” the motion to dismiss states. “The State’s attempt to transform stakeholder meetings with government officials into something illegal or nefarious is entirely misguided.”

In response to the allegation that the CEO of CFP felt “threatened” when Philip Norcross told him that CFP should only use the developer Philip Norcross suggested, the motion to dismiss points to recent decisions by the U.S. Supreme Court and the New Jersey Supreme Court regarding criminal threats vs. constitutionally-protected speech.

Both courts have recently held that to comply with the constitutional protections of free speech, a statement can be criminalized only when (i) a reasonable person would perceive it as a threat; and (ii) the speaker acted recklessly in issuing the threat.

In arguing that his conduct was not “reckless,” Norcross maintains that the indictment contains no allegation that he acted recklessly when asking CFP’s CEO to partner with a particular investor. “Nor could it, as any such allegation would mean that a request made by a well-established person in a business setting could subject that individual to charges of criminal extortion or coercion,” his motion to dismiss states. “That result would have an improper ‘chilling [effect on] protected speech,’ particularly by a lawyer.”

Like William Tambussi, Phillip Norcross argues that dismissal of the indictment is necessary to ensure that attorneys are not subject to criminal prosecution for engaging in the routine practice of law. His motion to dismiss specifically contends, “it would be improper and dangerous to apply the criminal statutes cited in the Indictment to criminalize Philip Norcross’s alleged conduct.”

“[T]he conduct that Philip Norcross allegedly engaged in consisted of bringing his legal expertise to bear on draft legislation affecting urban redevelopment, advocating for or advancing the interests of clients such as the Cooper Foundation and Cooper Hospital when negotiating or strategizing real-estate deals and redevelopment projects, and helping City officials develop litigation strategies,” the motion to dismiss further states. “None of the criminal statutes relied on by the State provide fair notice that this conduct is criminal.”

What’s Next?

Prosecutors have urged the court to resist attempts by Phillip Norcross and others to dismiss the indictment. “Defendants resist any further scrutiny of their actions, claiming that this is all just ‘garden-variety politics,’ ‘how deals get done,’ and even ‘a feature of democratic self-government.’ But the grand jury did not think so, and nothing about its view is manifestly or palpably wrong,” prosecutors wrote. Next month, the court will consider the arguments raised by both sides.