In-House Counsel Acquitted of Obstruction Charges Arising from Dealings with Federal Agency

Kelley Drye Client Advisory

On May 9, a federal judge in Baltimore acquitted a former associate general counsel of GlaxoSmithKline PLC (“GSK”) of all charges of obstructing justice and lying to federal authorities in an investigation into the off-label marketing of the anti-depressant drug Wellbutrin.  In-house counsel around the country were understandably concerned when this counsel was indicted for doing what had seemed like the job of an attorney, to advocate on behalf of a client.  The acquittal and the judge’s remarks from the bench -- there is no written opinion -- should provide some degree of relief.

The indictment alleged that in 2002 when the FDA began its investigation, this in-house counsel sent a series of letters to the agency arguing that the company had not promoted the drug for off-label purposes, though she knew that the company had sponsored programs making such promotions.  The government also argued that she knew that the company had paid a number of doctors to promote the drug to other physicians for off-label uses.

In his opinion from the bench in United States v. Stevens, Crim. No. RWT-10-694 (D.Md.), Judge Titus noted that this was the first time in over seven years on the bench that he had granted a motion for judgment under Rule 29 of the Federal Rules of Criminal Procedure, in this case after closing arguments but before the case went to the jury.  To grant a Rule 29 motion requires the court to conclude that no rational trier of fact could find the defendant guilty beyond a reasonable doubt, viewing the evidence in the light most favorable to the government.  The court observed that an extensive number of documents had been presented in evidence but they show that this was a [lawyer] that was not engaged to assist a client to perpetrate a crime or fraud.  Instead, [they] show a studied, thoughtful analysis of an extremely broad request from the [FDA] and an enormous effort to assemble information and respond on behalf of the client.”  Interestingly, the court criticized the fact that a magistrate judge in a different district had ordered the documents to be produced under the crime-fraud exception to the attorney-client privilege.

Invoking the safe harbor provision of the obstruction of justice statute, the court pointed out that the company did not come to its counsel to assist it in committing a crime or fraud but rather for assistance in responding to a letter from the FDA.  The court acknowledged that the counsel had stated to the FDA that GSK had not engaged in the promotion of the drug for weight loss, but pointed to evidence to the contrary that was disclosed to the FDA and counsel’s representations that GSK had taken certain corrective” actions.  “[T]he responses that were given by the defendant in this case may not have been perfect; they may not have satisfied the FDA.  They were, however, sent to the FDA in the course of her bona fide legal representation of the client and in good faith reliance on both external and internal lawyers for GlaxoSmithKline.”  The court was also impressed by the fact that the defendant had sought and obtained the advice and counsel of numerous lawyers after making full disclosure to them, such that the decisions that she made and the letters that she wrote were done by consensus.”

Noting that lawyers do not get a free pass in front of me,” the judge opined that a lawyer should never fear prosecution because of advice that he or she has given to a client who consults him or her ....”  The court warned that there is an enormous potential for abuse in allowing prosecution of an attorney for the giving of legal advice.”

While the associate general counsel in this case was acquitted, she still had to bear the burden of an indictment and trial.  Obviously, in-house counsel should be careful when dealing with government agencies to be as candid and accurate as possible under the circumstances.  For example, distinguish required disclosures of fact from argument about their significance.  While it is only one decision by one district court judge, the outcome in Stevens nevertheless reinforces the principle that as long as counsel is acting in good faith and advancing legitimate arguments on behalf of a client, he or she is performing the legitimate the role of a lawyer.