[UPDATE: the District Court dismissed the charges mid-trial, as explained by the Compliance and Enforcement Register, which has a copy of the order. Subsequent reporting indicates there was considerable doubt within the US Attorney’s office over prosecuting the case.]
One of the benefits of being a contingent-fee plaintiffs’ lawyer is that I get to pick and choose my cases. The likelihood of winning isn’t the only issue — we take some cases because they should be brought, even if the bottom-line disagrees — but we have the liberty of rejecting cases of dubious merit and cases that present other problems.
The worst “other problem” of all? The lying client. If a client lies to me, or tries to get me to lie for them, I’ll drop their case like a bag of bricks. There’s no need to be black or white about it; if we get into a gray area, that’s enough for me to get out.
But it’s easy for me to say that. I only get paid if my clients win, and, well, liars never win and winners never lie.
It’s not so easy for in-house counsel — who has one client upon whom they depend for their livelihood — to do that. They don’t get to choose their battles. They don’t get paid to say “no” when trouble comes knocking.
They get fired.
I couldn’t help reflecting upon that when I saw what Corporate Counsel reported Wednesday:
Federal prosecutors on Tuesday indicted (pdf) Lauren Stevens, the former associate general counsel of GlaxoSmithKline LLC, on charges of obstruction and making false statements about off-label uses of a drug.
“There is a difference between legal advocacy based on the facts and distorting the facts to cover up the truth,” said Carmen Ortiz, U.S. Attorney for the District of Massachusetts, in a statement. “Federal agencies such as the FDA cannot protect the public health if the entities and individuals they regulate provide false information and conceal the true facts.”
The indictment states that in October 2002, the FDA asked for information as part of an inquiry into whether the company was promoting a prescription drug for non-approved uses such as weight loss.
Prosecutors allege that Stevens signed a series of letters from the company to the FDA that falsely denied that the company had promoted the drug for off-label uses, even though she knew that it had.
Denying, on behalf of your client, that the client did something wrong isn’t unethical, much less criminal. Defense lawyers routinely do it, but they do it for one of two reasons: first, because the client has denied doing anything wrong and the lawyer believes them or, second, because the client denied doing anything wrong.
These two situations aren’t one and the same; in the first, the lawyer genuinely believes the client’s story, whereas, in the second, the lawyer doesn’t think one way or another about the client’s story. The client gave a story and the lawyer — who doesn’t know the facts one way or the other — is advocating on behalf of the client.
Obviously it’s ethically easier to be in the first situation, to stand up righteously for an innocent defendant who did nothing wrong. But the second situation is not just permitted, but is expected by the rules governing lawyers conduct — the lawyer is obligated to zealously advocate, with unfettered loyalty, on behalf of their client. The only lawyer who has a duty to “do justice” is a prosecutor; criminal defense attorneys have only duties to their clients. Same goes for civil attorneys, despite a century-old debate between practitioners (who believe loyalty to one’s client comes first) and academics (who believe the truth and social justice come first).
There is, naturally, a big gray area when a lawyer is in this second situation. They can suspect their client is lying — consider when the coaching scene in Anatomy of a Murder, the ethics of which are still debated today — but they can’t know, and they certainly can’t help the client lie.
Which brings us back around to Lauren Stevens. Her problem, if the indictment is to be believed, was that she went one step further. She didn’t believe her client was innocent. She didn’t stay on the sidelines and remain in the dark as to whether her client was innocent. She investigated her client’s alleged wrongdoing, as the FDA asked her to, and then reported back to the FDA only a small piece of what she had learned, keeping the most incriminating parts to herself. She and other lawyers even came up with the “pros” and “cons” of producing the incriminating parts and then decided, well, you know, it’d be a whole lot easier if we just kept that to ourselves.
And that’s the one step too far.
The case has the potential to be a “teaching moment,” shall we say, for the ethics of representing the guilty, particularly guilty corporations, given what The AmLawDaily reported about it:
“Lauren Stevens is an utterly decent and honorable woman. She is not guilty of obstruction or of making false statements,” Stevens’s lawyers said in a statement to The Am Law Daily. “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 the case, which will show that she has done absolutely nothing wrong.”
Emphasis mine. That sure sounds like an “advice of counsel” defense to me, which would amount to a waiver of attorney-client privilege. Consider Rhone-Poulenc Rorer Inc. v. Home Indem. Co., 32 F.3d 851, 863 (3rd Cir. 1994):
There is authority for the proposition that a party can waive the attorney client privilege by asserting claims or defenses that put his or her attorney’s advice in issue in the litigation. For example, a client may waive the privilege as to certain communications with a lawyer by filing a malpractice action against the lawyer. A defendant may also waive the privilege by asserting reliance on the advice of counsel as an affirmative defense. …
In these cases, the client has made the decision and taken the affirmative step in the litigation to place the advice of the attorney in issue. Courts have found that by placing the advice in issue, the client has opened to examination facts relating to that advice. Advice is not in issue merely because it is relevant, and does not necessarily become in issue merely because the attorney’s advice might affect the client’s state of mind in a relevant manner. The advice of counsel is placed in issue where the client asserts a claim or defense, and attempts to prove that claim or defense by disclosing or describing an attorney client communication.
As an initial matter, Stevens wasn’t the client, GlaxoSmithKline was, but given how deep they’re in it I doubt they’re going to hang their former VP out to dry and make themselves look worse in the process.
I don’t know what the U.S. Attorney’s were thinking, or if they expect to win, but this sure looks like a case that needed to be brought. A line has to be drawn somewhere; on which side Lauren Stevens and GlaxoSmithKline fall is a question that will need to be hashed out by the courts.