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“The Criminalization of the Practice of Law”

| October 10, 2012

Prosecuting a lawyer for her zealous advocacy of a client may seem like an unlikely, even absurd, case, but that is exactly what happened to attorney Lauren Stevens in 2010. In fact, she was indicted twice.

On November 8, 2010, a grand jury for the United States District Court for the District of Maryland indicted Stevens, former Vice President and Associate General Counsel of GlaxoSmithKline (GSK), on six counts. The charges against her included obstruction of a proceeding, falsification and concealment of documents, and making a false statement.

After that case was dismissed without prejudice in March, due to faulty legal instructions to the grand jurors, Stevens was re-indicted in April.

The accusations arose out of Stevens’ response to a Food and Drug Administration inquiry into GSK’s alleged off-label promotion of the anti-depressant drug Wellbutrin. In drafting responses to the requests, which were not subpoenas, Stevens consulted with in-house counsel and obtained outside counsel.

She was able to provide the court with evidence that she acted with advice of counsel and in good faith. Judge Roger Titus of the U.S. district court in Maryland concluded that “[e]very decision that she made and every letter she wrote was done by a consensus. Now, even if some of these statements were not literally true, it is clear that they were made in good faith, which would negate the requisite element required for all six of the crimes charged in this case.”

On May 10, Judge Titus dismissed the case again, this time with prejudice. Judge Titus opined that “[t]here is an enormous potential for abuse in allowing prosecution of an attorney for the giving of legal advice. I conclude that the defendant in this case should never have been prosecuted and she should be permitted to resume her career.”

While this was a reasonable disposition of the case for Judge Titus to make, the problem is that prosecutors were able to get as far as they did. What’s worse, is that Stevens’ case is just an example of a larger problem—that is, if the federal bureaucracy finds it cannot get the company on the underlying issue, then they may resort to prosecuting their in-house counsel or even use the threat of doing so as leverage to exact a settlement.

For Stevens, as she recounted in a conversation with the Law Blog, “It was really hard for me to wrap my head around. The government was able to pierce the attorney-client privilege and get at all the privileged documents from the FDA inquiry, and they tried to make the case that the company had come to me in furtherance of a cover-up or a crime.”

In her view, “the criminalization of the practice of law is here, and I don’t think it’s necessarily going away. The government will continue to be aggressive in looking at in-house counsel. I know sometimes it feels like we have a target on our back.”

In defense of the seemingly wasteful prosecution, Assistant Attorney General Lanny A. Breuer of the Criminal Division, stated, “if we find credible evidence of criminal conduct—by corporate executives or the lawyers and accountants who advise them—we will not hesitate to charge it.”

However, cases like Lauren Stevens’ leaves one wondering what that standard of “credible” is, and how far the criminalization of individuals for underlying corporate conduct could go.

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