NEW YORK, Nov 11 (Reuters Legal) - The government's case
against a former in-house lawyer at GlaxoSmithKline Plc could
turn on the advice she received from an outside law firm -- and
raises tricky attorney-client privilege questions.
The lawyer, Lauren Stevens, was indicted this week on four
counts of making false statements, one count of obstruction of
justice and one count of falsifying and concealing documents
related to Glaxo's promotion of an anti-depressant drug for
unapproved uses, such as weight loss.
According to the indictment, filed in federal court in
Greenbelt, Maryland, Stevens knew that Glaxo had sponsored
programs to promote the drug for unapproved use. The government
alleged that Stevens, a now-retired Glaxo vice president and
associate general counsel, concealed information from the Food
and Drug Administration about physicians' promotions of Glaxo's
drug and sent letters to the FDA falsely saying Glaxo didn't
encourage off-label promotion.
Stevens claims to have been guided by the advice of outside
lawyers, according to a statement issued by her lawyers on
Tuesday. "Everything she did in this case," the statement said,
"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." Reuters Legal could not immediately identify the unnamed
The statement was released by Stevens' lawyers Brien
O'Connor and Colleen Conry of Ropes & Gray. Stevens is also
represented by Reid Weingarten and William Hassler of Steptoe &
Johnson in Washington. O'Connor declined to comment.
An advice-of-counsel defense can raise a number of sensitive
attorney-client privilege issues. To vigorously assert the
theory that she relied on the advice of outside lawyers
regarding her correspondence with the FDA, Stevens will have to
present evidence of that legal advice. Because the client of
the outside law firm was the company, it's up to Glaxo, not
Stevens, to decide if it wants to waive privilege.
And therein lie the questions Stevens' defense team are
likely to confront: Will Glaxo waive privilege? Is it in the
company's interest to waive? And has it already done so?
Prof. Samuel Buell of Duke University School of Law and a
former federal prosecutor, said that when considering whether
to waive privilege, the interests of a company and defendant
"It's in Glaxo's interest to want her absolved," said Buell.
"Because if the individual is liable, the company can be
But a decision by Glaxo to waive privilege could mean
uncovering internal memos, disclosing internal decision-making,
and showing how the company interacted with its outside lawyers
-- all things that could potentially expose the company to
further government scrutiny.
"A company put into this position is going to be focused on
avoiding entanglement with the government and is not going to
rush to the defense of former officers who have gotten in the
crosshairs of prosecutors," said Jeff Ifrah, an attorney with
Ifrah Law in Washington, D.C., who specializes in health care
and white-collar defense.
In regulatory filings, Glaxo has said it's cooperating with
the government's probe, which could mean it has already waived
the attorney client privilege in an effort to resolve the
government investigation. A Glaxo spokeswoman declined to
comment on whether the company waived the attorney/client
privilege during its talks with the government.
Even if the Stevens defense team is able to present the
outside law firms' legal advice, it can't just argue that
Stevens talked to a lawyer and therefore did nothing wrong.
Instead, said Buell, the Duke professor, she must show that she
got a legal opinion that was reasonable on its face and she
relied on it in good faith.
The fact that Stevens is a lawyer further complicates the
advice-of-counsel defense. On the one hand, jurors could hold
her to a higher standard because she holds a legal degree. On
the other, said Prof. Daniel Richman of Columbia University,
jurors could be sensitive to the idea that lawyers are more
likely to grapple over nuances and gray areas.
"We tolerate a higher degree of close reading of questions,
and of close parsing of answers from lawyers than what we do
for other actors," said Richman.
The case is U.S. v. Stevens, U.S. District Court, District
of Maryland (Greenbelt), No. 10-CR-694.
(Reporting by Carlyn Kolker and Terry Baynes of Reuters
Legal; Additional reporting by Jeremy Pelofsky of Reuters)