Judge Rules for Indicted GlaxoSmithKline Attorney – and the Protection of Attorney-Client Privilege

After the initial indictment of former GlaxoSmithKline (GSK) vice-president and associate general counsel Lauren Stevens for her role in responding to the government's investigation of off-label promotion of Wellbutrin was dismissed due to legal errors by the prosecution, the prosecution obtained a new indictment against Stevens.  As previously reported, some legal experts hypothesized that the indictment could cause in-house counsel to become more conservative in their advocacy, whereas others speculated that the government could not prove the required intent for the charges.  On May 10, 2011, Judge Roger W. Titus of the District of Maryland thwarted the government's efforts to hold counsel accountable and granted Stevens' motion for judgment of acquittal, following the close of prosecution's case.

Background on the Indictment

The November 2010 and subsequent April 2011 indictments charged Stevens with one count of obstruction, one count of falsification and concealment of documents, and four counts of making false statements to the Food & Drug Administration (FDA) in FDA's 2002 investigation into off-label promotion of the GSK drug Wellbutrin. The focus was on Stevens' role in allegedly withholding from FDA some responsive documents while simultaneously representing that she had provided all available documents. Stevens also was charged with misrepresenting facts about GSK's advisory boards and whether GSK gave gifts to attendees of its speaker programs.  In her defense, Stevens asserted that she relied in good faith on the advice of counsel in responding to the FDA's 2002 inquiry. 

The May 10 Decision

The case went to trial before Judge Titus, starting on April 26, 2011.  During the prosecution's case, the judge heard from FDA and GSK officials and reviewed privileged documents obtained by the prosecution through a magistrate judge's order that was based on the Crime Fraud Exception.  After the government rested, Judge Titus concluded 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" and granted the motion for judgment of acquittal. 

In his decision, Judge Titus explained that there was no evidence that Stevens, who relied on advice of inside and outside counsel in her communications with the FDA, intended to or was engaged to assist with perpetrating a crime or fraud.  Her communications were made in good faith, negating the intent required for the crimes charged.

Judge Titus not only exonerates Stevens and her conduct, but he also addresses the issue much speculated on by observers: the protection of attorney-client privilege.  He concludes that the magistrate judge's order allowing access to the privileged documents in the first place was "unfortunate," as the Crime Fraud Exception was not met.  He also notes that there are "profound implications for the free flow of communications between a lawyer and client when the privilege is abrogated, as it was in this case."

Import for the Industry

From the first indictment, the media and lawyers have followed the case closely as a bellwether for the government's announced plans to make industry executives and counsel more responsible for alleged corporate misconduct.  Indeed, in his decision to grant the acquittal, Judge Titus agrees that "there are serious implications for the practice of law generated by this prosecution."  He further explains:

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.

By refocusing the issue on the prosecution's improper attempt to use non-fraudulent attorney-client communications as a sword, the acquittal should be seen as a resounding victory for both industry executives and counsel.