Jeff Ifrah Quoted in Article on Glaxo Lawyer Acquital
May 11, 2011
NEW YORK, May 11 (Reuters) – A judge’s mid-trial acquittal Tuesday of a former in house attorney is a reminder of the limits prosecutors face pursuing lawyers for their advocacy work.
On Tuesday, U.S. District Judge Roger Titus acquitted former GlaxoSmithKline Plc in house counsel Lauren Stevens. Stevens had been indicted for obstructing a Food and Drug Administration investigation into the drug firm’s marketing practices. The dismissal came just after the prosecution presented its case, almost two weeks into the trial in federal court in Greenbelt, Maryland. In his statement to the courtroom, Judge Titus said the prosecution should not have been brought at all.
The case centered on Stevens’ response to a fall 2002 FDA investigation into whether Glaxo promoted its antidepressant Wellbutrin for unapproved uses, such as weight loss. Prosecutors alleged that Stevens withheld information from the FDA. They said that Stevens did not provide data about payments made to doctors who promoted the drug, and that she did not include slides from speaker presentations promoting the drug.
Stevens contended that she acted in good faith and that she relied on the advice of Glaxo’s outside law firm, King & Spalding. Stevens said she did not provide some documents to the FDA because she did not want the agency to misconstrue them. In motions before the trial, Stevens said that she sought a meeting with FDA lawyers to discuss the inquiry in person, but that meeting was rebuffed.
Defense lawyers said the surprising acquittal sent a signal that prosecutors should think twice about charging company lawyers over the work they do in responding to government investigations and inquiries.
“I think there was a collective intake of breath when we first read about this case,” said Susan Hackett, general counsel of the Association of Corporate Counsel, the trade group of in-house lawyers. “We are asked these kinds of questions every day.”
If the prosecution had prevailed, company lawyers feared they would be required to respond to government inquiries in ways that would undermine their professional duty to their clients. In responding to government inquiries, lawyers must frequently decide how much information to produce.
“If lawyers have to fear criminal prosecution for providing advice, or providing advice that was less than perfect, that’s going to impact their ability to advise corporations that are in need,” said Jeff Ifrah, a white collar defense lawyer at the Ifrah Law in Washington.
Titus seemed to take all that into account yesterday.
“There are serious implications for the practice of law generated by this prosecution,” Titus said, according to a transcript of Tuesday’s proceedings.
“A lawyer should never fear prosecution because of advice that he or she has given to a client who consults him or her, and a client should never fear that its confidences will be divulged unless its purpose in consulting the lawyer was for the purpose of committing a crime or a fraud,” Titus said.
After the ruling, the Justice Department said the charges were “well founded.” Glaxo said it was “pleased” with the acquittal, and Reid Weingarten, a lawyer for Stevens, called it a “vindication.”
The Justice Department can not appeal.
RELIANCE ON ADVICE OF COUNSEL
The acquittal was also a reaffirmation of the bond between attorneys and clients and the need for the “free flow of communication” between them, as Titus said. The judge noted that Stevens sought, and heeded, advice from the company’s outside lawyers.
The defense was set to begin its presentation on Tuesday and was expected to argue that Stevens acted on advice of counsel. In motions before the trial, Stevens’ lawyers had said that King & Spalding lawyers helped draft, edit and review Glaxo’s response to the FDA inquiry.
Stevens’ first witness was expected to be Mark Brown, a King & Spalding partner who led the firm’s work for Glaxo, according to Weingarten.
Instead, Titus sent the jury home, explaining that while judges rarely grant mid-trial motions for acquittal, this case was an exception.
“I’m sure you were probably looking forward to spending the next two weeks of your life in this courthouse, but you will not have to do that,” Titus said.
The case is U.S. v. Stevens, U.S. District Court, District of Maryland, No. 10-CR-694.
(Reporting by Carlyn Kolker)