Canadian Lawyer InHouse

By Nicole Broley When you���re the target of the authorities What general counsel can learn from the experience of Lauren Stevens. B eing charged criminally for doing our job ��� it is a nightmare that would terrify any in-house counsel and it is a fate that Lauren Stevens knows all too well. Speaking to a ballroom filled with in-house counsel from around the world at the recent Association of Corporate Counsel Annual General Meeting in Orlando, Fla., Stevens captivated the group with her story of being indicted twice by United States federal prosecutors on charges of obstructing justice, making false statements, and falsifying and concealing documents. Stevens was vice president and associate general counsel at GlaxoSmithKline when she first received a letter from the Food and Drug Administration making inquiries about the ���off label��� GSK anti-depressant drug allegedly being used for weight loss purposes. Stevens compiled a team of internal and external counsel to investigate and respond to the inquiry from the FDA. After a number of months of investigating, a draft of the responding letter to the FDA was prepared by external counsel and provided to Stevens. That draft was reviewed, revised, and ultimately approved by everyone on the team ��� including internal GSK lawyers and external lawyers ��� and then sent to the FDA under Stevens��� name. It was that letter that ultimately led to her indictment. The initial indictment against Stevens was dismissed by a federal 50 ��� court judge due to an improper charge to the jury. A few months later, Stevens was indicted again for substantially the same charges. Stevens maintained her innocence throughout, indicating that in providing the response to the FDA she had acted in good faith and relied upon the advice of external (and internal) counsel. The charges against Stevens were ultimately dismissed by U.S. district judge Roger W. Titus who accepted that Stevens acted in good faith and on the advice of counsel and disagreed with an earlier decision granting access to otherwise privileged documents of the GSK legal team. Stevens shared a number of lessons learned from her experience that we, as in-house counsel, should heed: 1. In responding to regulators, inform, don���t advocate. Though it���s our natural tendency to want to advocate for our client, in written responses to a regulator, let the facts speak for themselves. If advocacy is needed, extend an invitation for the regulator to contact you directly so that you can convey your client���s position in a conversation with the regulator. 2. Don���t hesitate to have external counsel respond directly to a regulator. The response to the FDA was under Stevens��� name because she didn���t want to send the wrong message to the FDA by having external counsel respond directly and unnecessarily raise the FDA���s radar. In hindsight, however, her view is that most regulators know you are engaging external counsel behind the scenes, they D ec em b er 2012/ January 2013 INHOUSE regularly receive responses from external counsel directly, and doing so does not unduly elevate the matter from the regulator���s perspective. 3. If you take notes, ensure they are accurate and complete. Some counsel take notes and some don���t. But if your practice is to take notes during calls or meetings, make sure that they are complete and accurate. If you end up in the position of having to disclose your notes (as Stevens did) you will be grateful if they tell the whole story. 4. Building trust with your internal client is key. Every day we have the opportunity to build trusting relationships with our clients. The fact that Stevens had the full support of GSK throughout her ordeal is no doubt in large part because of the effort she put into developing her relationships internally before trouble hit. The idea that in-house counsel could be criminally charged for doing their jobs is a sobering thought. As judge Titus noted in his judgment, ���a lawyer should never fear prosecution because of advice that he or she has given to a client who consults him or her, and a client should never fear that its confidences will be divulged unless its purpose in consulting the lawyer was for the purpose of committing a crime or a fraud. There is an enormous potential for abuse in allowing prosecution of an attorney for the giving of legal advice.��� While one hopes that decisions such as this will serve to temper spurious prosecutions in the future, in the interim, in-house counsel would be wise to learn from Stevens��� experience. Nicole Broley is associate general counsel at Deloitte & Touche LLP in Toronto. IH

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