June 15, 2011

An Enforcement Perspective: With Malice Toward None

Holland & Knight Government Contracts Blog
William F. Gould

"The Grand Juror's question was not just any question, but rather was much akin to asking about an elephant in the room."

- The Honorable Roger W. Titus, District Court Judge

On May 10, 2011 Judge Titus dismissed the government's six count federal indictment against GlaxoSmithKlein lawyer Lauren Stevens for the second time. In his typically elegant and eloquent Rule 29 Order from the bench, the Judge politely pointed out to the United States that the elephant had followed its prosecution from the Grand Jury chamber to his Maryland courtroom.

All in-house attorneys who interact with the United States government, including those employed by government contractors, should become familiar with the United States' prosecution of Ms. Stevens and rejoice in the outcome.

Lauren Stevens was first indicted on November 8, 2010, in Greenbelt, Maryland. She was charged with obstruction of justice and making material false statements. The conduct centered around information that she and a team of lawyers provided, and some materials that they did not provide, to the FDA, which was examining the GSK anti-depressant drug Wellburtin SR. After nearly a decade of investigation in a Grand Jury in Massachusetts, the government prosecutors drove their evidence south to a Maryland Grand Jury and asked it to return an indictment against Ms. Stevens. That is where the government prosecutors met the Grand Juror who "asked about the legal implications of Stevens' reliance on the advice of others[, including at least five lawyers,] in responding to the FDA and whether it was relevant." (J. Titus' March 23, 2011 Order). This perceptive question served to point out the elephant in the room. Where did advice of counsel fit into the case? Both government attorneys who were in the Grand Jury responded, in sum, that the extensive advice of counsel that Ms. Stevens sought and followed was in no way relevant to the Grand Jury's deliberations. Judge Titus correctly determined that this incorrect instruction from the Grand Jury's legal advisors tainted the whole process. Given this, he dismissed the indictment for the first time.

The government was undaunted. It reindicted Ms. Stevens and took her to trial. When the jury was sworn, her jeopardy attached to the tune of up to sixty years in federal prison. The evidence against her included her own legal notes, as well as legal memos and notes authored by GSK in-house lawyers and GSK's outside counsel. To be clear, these notes and memos documented the lawyers' collective legal thought process and decision-making on behalf of GSK. Many years ago, the United States convinced a magistrate judge in Massachusetts to order these documents produced under the crime fraud exception to the attorney/client privilege. Ms. Stevens read her own notes about meetings with GSK lawyers in the speaking indictment that was returned against her. At the conclusion of the government's case, Judge Titus again dismissed the prosecution for the final time based largely on the fact that Ms. Stevens had consulted with and relied upon counsel in all of her interactions with the FDA.

There is no way around this fact: Ms. Stevens was investigated and indicted for practicing law. She was also saved because she was engaged in the practice of law and relied on advice of GSK's counsel. Should the government have realized this sooner?

"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 that she should be permitted to resume her career." (J. Titus' May 20, 2011 Rule 29 Order).

What Judge Titus and the very astute Grand Juror understood, and the government did not, is that an in-house lawyer has a client just like an attorney in private practice. With this relationship comes a duty to represent her client with all appropriate zeal. Lawyers must be allowed to give their clients candid legal advice, whether it be good, bad, or ugly. They must be able to do this without fear or second-guessing.

Our friend Professor Ellen Podgor in her wonderful White Collar Crime Prof Blog (http://lawprofessors.typepad.com/whitecollarcrime_blog/) has expressed surprise at the press silence about the Stevens prosecution, particularly in comparison to the Raj Rajaratnam case in the Southern District of New York, which was reported widely and aggressively. This absence of ink and pixels may be because people view the Stevens prosecution as wildly aberrant or incapable of repetition. Let's hope that is true. Hope is a good thing. Nevertheless, all companies that interact with the government, particularly in highly regulated industries, must undertake a careful study of the Stevens investigation. The Justice Department invoked the crime fraud exception. Our Justice Department views Lauren Stevens' legal work as criminal conduct.

A prosecutor's role in our system is to seek justice dispassionately and without prejudice. To quote a far greater author, a Justice Department lawyer should be exercising her, and his, authority with malice toward none. It took a Grand Juror, an exceptionally talented defense team, and a Federal Judge, to point out the elephant in the room. Has the government seen the elephant? Unknown.

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