October 12, 2011 Articles

Lessons from the Failed Prosecution of In-House Pharma Counsel

As recently experienced by a pharmaceutical associate general counsel, the line between fair advocacy and criminality is not a settled matter.

By Ronald J. Friedman and Michelle Peterson

“The business of the advocate, simply stated, is to win if possible without violating the law.” Marvin E. Frankel, “The Search for Truth: An Umpireal View,” 123 U. Pa. L. Rev.  1031, 1037 (1975). As recently experienced by a pharmaceutical associate general counsel, the line between fair advocacy and criminality is not a settled matter and can be clouded in the eyes of the beholder. The result of this collision can be disastrous. The U.S. Justice Department’s recent failed prosecution of Lauren Stevens, associate general counsel at GlaxoSmithKline (GSK), in United States v. Lauren Stevens, Case No. 8:10-cr-00694-RWT (May 2011), is illustrative. The government’s prosecution arose due to Stevens’s alleged failure to provide complete answers in response to an informal and voluntary request for information during an investigation being conducted by the Food and Drug Administration (FDA). While corporate in-house lawyers across the country were sure to breathe a collective sigh of relief at news of the acquittal of Stevens by District Judge Roger Titus of the United States District Court for the District of Maryland, who pulled the case away from the jury in order to dismiss it, inquisitive minds also wondered how the prosecution got as far as it did and what, if anything, can be learned from Stevens’s ordeal.

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