Famed attorney F. Lee Bailey warned that lawyers in the U.S. are popular targets for prosecution
In November, 2010, Lauren Stevens, a former vice president and general counsel for pharmaceutical giant GlaxoSmithKline, was indicted on federal charges of making false statements and obstructing a federal investigation. Stevens was accused of making false and misleading statements in a series of letters to the Food and Drug Administration (FDA) on behalf of her employer. Despite it having been obvious from the beginning that Stevens was only relaying information furnished by her client and had no intent or motive to mislead federal investigators, she was enthusiastically pursued by the DOJ. “Where facts and law allow, the Justice Department will pursue individuals responsible for illegal conduct just as vigorously as we pursue corporations,” Tony West, assistant attorney general for the civil division, said in a statement. It should be noted that despite the DOJ’s stated commitment to pursue corporations, GlaxoSmithKline’s name was noticeably absent from the Stevens indictment. West continued, “Criminal charges are appropriate when false statements such as those alleged here are made to the FDA.”
In-house counsel Lauren Stevens was indicted for legitimate lawyering on behalf of her corporate client
Stevens denied all charges at the time of her indictment and defense counsel seemed puzzled by the DOJ’s zeal. Brien O’Connor, part of the Stevens defense team, issued a statement saying, “Lauren Stevens is an utterly decent and honorable woman. She is not guilty of obstruction or making false statements. Everything she did in this case was consistent with ethical lawyering and the advice provided her by a nationally prominent law firm retained by her employer specifically because of its experience in working with the FDA. She looks forward to the day when a judge and jury can hear the true facts in this case, which will show that she had done absolutely nothing wrong.”
Brien O’ Conner represented Stevens in her lengthy battle against the DOJ
Despite her lawyer’s bravado, no one looks forward to a federal trial. Juries are wildly unpredictable and federal judges often work in conjunction with the prosecution. The indictment against Stevens contained six counts and exposed her to a maximum of 60 years in federal prison. Stevens’ legal team was confident that at some point in the proceedings the government would realize that she was functioning as little more than a messenger for her corporate client. The government, however, appeared to be determined to milk the affair for all it was worth and showed no sign of reassessing its determination to prosecute Stevens to the fullest extent of the law.
The DOJ saw the Stevens case as an opportunity to send a message to the legal community that zealous legal advocacy on behalf of clients would not go unpunished
“This indictment demonstrates that those who purposely subvert the regulatory functions of the FDA through false statements and misleading information will be held accountable for their deception,” Dara Corrigan, the FDA associate commissioner for regulatory affairs, said in a statement. “We commend the efforts of the Department of Justice and the other law enforcement agencies that are vigorously pursuing the prosecution of this matter.”
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GlaxoSmithKline was butting heads with the FDA, but the DOJ made their lawyer the target
The government’s prosecution of Stevens was dealt a mortal blow on May 10, 2011 when USDJ Roger Titus granted her Rule 29 Motion. Federal Rule 29 allows the defense to motion for acquittal by arguing that no reasonable jury could convict on the basis of the facts presented. It is routinely filed in almost every federal criminal trial prior to the case going to the jury, but almost never successful. Judge Titus noted as much in his Order granting the Motion by observing that “Rule 29 Motions are often made but rarely granted.” Judge Titus went on to say that Stevens “should never have been prosecuted and that she should be permitted to resume her career.” It was the first time he had granted a Rule 29 Motion in his almost eight years on the federal bench.
USDJ Roger Titus dismissed all charges against Stevens and sent a message to the DOJ that advocacy on the part of lawyers is not be threatened
Judge Titus’ Order was highly critical of the government’s case against Stevens. His Order stated, “A lawyer should never fear prosecution because of the advice that he or she has given to a client who consults him or her. There is an enormous potential for abuse in allowing prosecution of an attorney for the giving of legal advice.”
Fortunately for Stevens, Judge Titus recognized the government’s ultimate goal with this prosecution. A conviction would have had a chilling effect upon counsel in their ability to properly advise clients. Federal prosecutors were essentially trying to impute a client’s guilt upon their counsel, thus making it impossible for them to zealously represent a client’s interests. Judge Titus’ Order ties directly to the Model Rules of Professional Conduct which directs that “It is a lawyer’s obligation to zealously protect and pursue a client’s legitimate interests, within the bounds of the law.” Judge Titus was clear in his Order that what drove his decision was Stevens’ advice of counsel defense. The judge concluded that Stevens was doing nothing more than practicing law by zealously representing the interests of her client.
The Model Rules of Professional Conduct directs that lawyers “zealously” advance their client’s interests, but the DOJ attempted to warn against this with the Stevens prosecution
Federal prosecutors had sought to circumvent this argument by asserting that the advice Stevens was giving was “criminal,” thus triggering the crime fraud exception to a lawyer’s duty to protect their client’s interests. Judge Titus struck down the government’s attempt to perform an end-around the protection normally afforded attorneys and noted in his Order that “The use of the crime fraud exception to the attorney client privilege should be carefully considered.”
Judge Titus’ Order pulled no punches in its criticism of the government’s case. “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. 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 jobs of zealously representing the interests of their client. Anything that interferes with that is something that the court system should not countenance.”
Despite her success at trial, the ordeal took its toll on Stevens. She retired from GlaxoSmithKline and appeared to have had her fill of the legal profession. Recently, however, she has surfaced to discuss aspects of her criminal case that have wide-reaching implications for the practice of law.
“I think the criminalization of the practice of law is here, and I do not think it’s necessarily going away, “Stevens recently told a reporter. “The government will continue to be aggressive in looking at in-house counsel.” Stevens was measured in her comments and displayed no hard feelings about her ordeal. She even humorously recounted a story from her initial criminal processing when she was arraigned, fingerprinted and photographed for a mug shot. “And this nice jailer asks, in all seriousness, ‘This isn’t going to ruin your legal career, is it?’ ”
Stevens described how her defense team painted her as an honest but zealous advocate for her corporate client. She told of how after the prosecution rested its case but before the defense began, one of her lawyers motioned for a dismissal under Rule 29 because the government had not proven that a crime had been committed. “My attorney said, ‘Don’t get your hopes up; this never happens,’ ” she said. To her utter amazement, this time it did.
Stevens recalled going to court that morning and “I am absolutely frozen in my chair as [the judge] talks…I’m holding my breath and I didn’t even hear what he said.” She was utterly shocked when the judge announced that the case was dismissed with prejudice. It was at first difficult for her to fathom that her legal ordeal, which had spanned several years, was finally over.
Absent from her recent telling of the story was the government’s bad faith in its dealings with Stevens and GlaxoSmithKline. The FDA claimed that they were merely seeking additional information about off-label drugs, but was quietly working behind the scenes to assemble a criminal case against Stevens. Ultimately, her voluntary disclosures to the FDA as well as her private client notes became the basis for the criminal complaint and were even quoted verbatim in her indictment. The indictment did not come down until she had spent several years trying to please the FDA and comply with their seemingly never-ending list of requests. It was not until after the FDA believed her voluntary compliance had run its course that they finally brought the indictment for criminal charges. Stevens recalled how one day her boss at GlaxoSmithKline came into her office and said, “We need to hire an attorney to represent you. The DOJ has concerns about false statements in documents you sent to the FDA.”
GlaxoSmithKline may have been the government’s original target, but they were omitted from mention in the Stevens indictment
Stevens cautioned other in-house counsel to take detailed notes of meetings and to be careful with emails because they may get admitted into evidence. She also warned against making legal arguments in letters to regulatory bodies, admitting that her letters to the FDA contained “a lot of advocacy and zealous representation. If I were to do it again, I think I would have set a different tone in those letters.” Nevertheless, she advised lawyers to “practice law with a passion” and “defend your client zealously and don’t back away because you are afraid of my experience.”
While not admitting so in so many words, Stevens appears to grasp that her trial was almost certainly the result of a determination to zealously represent her client and passionately battle government regulators. The fact that the DOJ would seek criminal charges against a lawyer for doing so does not bode well for effective advocacy and the proper practice of law in general. Extinguishing the few remaining bastions of defense appears to be part of the DOJ’s agenda to secure swift and certain convictions in every possible criminal matter.
(Originally appeared in Online Publshing Company, www.onlinepublishingcompany.info)