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Lauren Stevens Acquitted

The White Collar Crime Prof Blog reported the acquittal of the former associate general counsel of GlaxoSmithKline, Lauren Stevens.

Judge Roger Titus of the U.S. district court in Maryland directed an acquittal during a hearing today.

“I conclude on the basis of the record before me,” Judge Titus said, “that only with a jaundiced eye and with an inference of guilt that’s inconsistent with the presumption of innocence could a reasonable jury ever convict this defendant.”

Last month, Stevens got her case dismissed without prejudice.

She produced extensive evidence showing she acted on the advice of counsel and without any intent to violate the law.

But the DOJ re-indicted her on four counts of making false statements, one count of obstruction of justice, and one count of falsifying and concealing documents related to Glaxo’s promotion of the anti-depressant drug for weight loss, which hadn’t been approved by the Food and Drug Administration.

Stevens’ case worried company lawyers who deal with federal government agencies, including those handling FCPA investigations or answering compliance-related questions from the DOJ and SEC.

In ordering the acquittal today, Judge Titus said: “There 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.”

It was never clear why the DOJ was so aggressive in its prosecution of Stevens. In January this year, Lanny Breuer, head of the DOJ’s criminal division, told a meeting of corporate counsel near Washington, D.C. that Stevens was in the crosshairs.

As I have said before, 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, Indeed, as I am sure you are aware, a grand jury in the District of Maryland recently indicted Lauren Stevens, a former in-house attorney for a major pharmaceutical company, charging her with obstructing justice in connection with an investigation by the Food and Drug Administration into the off-label marketing of a pharmaceutical drug.

In a blog post in March, professor Ellen Podgor suggested the DOJ’s resources could be better used to help company lawyers understand their obligations when responding to government inquiries.

A transcript of today’s hearing before Judge Titus is available through the White Collar Crime Prof Blog here.

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1 Comment

  1. Once the government targets attorneys (whether in-house or outside counsel) for obstruction-related charges, where the attorney has no involvement or interest in the alleged underlying misconduct, we need to ask serious questions. Client representation is, by its nature, rife with nuances and attorney client privileged communication. It is ill-advised for a government regulatory agency (in this case the FDA), to examine, after the fact, attorney client privileged communications in an effort to build a federal obstruction case against an attorney who did not benefit from the alleged underlying misconduct. That would make the attorney’s job impossible, as a good faith judgment decision made by the attorney during the course of the representation, which ultimately is found to be less than optimal from the government’s point of view (or, with hindsight, even proves to be incorrect) could result in criminal liability for the attorney. Attorneys are retained to represent their clients. They are not pseudo government investigators, and they cannot be expected to be prescient, or to possess divine intuition.
    Ms. Stevens rightfully won this case, but I’m sure the judge’s statement that “this case should never have been brought” will provide her little solace at this point. She has been dragged through many years of painful federal criminal prosecution, having her reputation and career irreparably harmed in the process. Her personal life has likely been permanently affected. Taking on the DOJ is not a decision to be taken lightly – 95% of federal convictions result from pleas. Federal obstruction statutes carry maximum penalties of 20 years in prison, and the government has unlimited resources. To say that “this case should never have been brought” seems to belittle the courage that Ms. Stevens displayed in fighting for what’s right. I think we need to take a closer look at “prosecutorial discretion.” There apparently was reluctance by several US attorneys to sign off on this indictment. I wonder who ultimately signed it, and what he’s doing now? This type of prosecution, particularly in an environment of trillion dollar deficits and devastating budget gridlock, is pretty disgraceful.

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