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Crime in the Suites An Analysis of Current Issues in White Collar Defense

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May 26, 2011

Judge’s Ruling in Stevens Case Affirms Role of Lawyers as Advocates

By: Ifrah Law

In November, we reported on the unusual indictment in the District of Maryland of Lauren Stevens, then an in-house attorney at GlaxoSmithKline, on charges of obstruction of justice, falsifying and concealing documents, and making false statements in a civil discovery context. Stevens’ indictment arose from her alleged failure to disclose documents to the Food and Drug Administration concerning, among other things, GSK’s alleged off-label promotions of its antidepressant drug Wellbutrin for weight loss.

The government seemed to be using this unusual indictment as an opportunity to test the limits of lawyers’ zealous representation of their clients. In his opening statement, U.S. Department of Justice attorney described Stevens as a “lawyer who went too far” by “put[ting] loyalty to her company above fidelity to the truth and to the law.”

However, that effort was dealt a decisive blow by U.S. District Judge Roger Titus’ surprising May 10 opinion granting Stevens’ motion for judgment under Rule 29 of the Federal Rules of Criminal Procedure. The judge took the case away from the jury, finding that there was insufficient evidence to sustain a guilty verdict on the facts that the government had presented.

Judge Titus wrote that the evidence “can only support one conclusion” – that Stevens relied on the advice of in-house and outside counsel in her discovery responses to the FDA.

“Every 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,” the judge wrote.

Even the statements by Stevens that the government alleged were false, the judge concluded, could not be considered false, beyond a reasonable doubt, when considered in context.

Judge Titus went on to discuss the role of lawyers in the adversarial system: “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. The institutional problem that causes me a great concern is that while lawyers should not get a free pass, the Court should be vigilant to permit the practice of law to be carried on, to be engaged in, and to allow lawyers to do their job of zealously representing the interests of their client. Anything that interferes with that is something that the court system should not countenance.”