Professional Service Providers and Criminal Charges

Lauren Stevens, former in-house counsel for GlaxoSmithKline was acquitted last year of criminal charges of obstructing a government agency. She was accused of withholding documents from the U.S. Food and Drug Administration when it was looking into allegations of off-label marketing of the antidepressant Wellbutrin.

Stevens has said, “I think the criminalization of the practice of law is here, and I don’t think it’s necessarily going away. The government will continue to be aggressive in looking at in-house counsel.”

She explains that during the USDA’s inquiry into the allegations, outside counsel advised her to not turn over certain documents to the government. The documents were requested, but not subpoenaed. Stevens said that GlaxoSmithKline didn’t want to raise any red flags by disclosing that it had retained outside counsel, so she signed and submitted the company’s response and documents as in-house counsel.

This raises the possibility that in-house lawyers will be subject to more stringent scrutiny by the government in the future, and I can’t help but wonder if that will eventually extend to outside service providers such as attorneys, auditors, and investigators. Only time will tell, but I think this case provides a cautionary note for service providers in selecting clients and cases.

For now, client confidentiality and other professional standards protect the work of service providers. There’s no telling when this might change, however, and the government will  claim that its right to investigate potential criminal activity trumps those. Scary times may be ahead for those providing services to companies accused of fraud and misconduct.

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