On May 10, 2011, a federal judge granted defendant’s Fed. R. Crim. P 29 motion for judgment of acquittal at the end of the government’s case, acquitting a former associate general counsel for GlaxoSmithKline (“GSK”) of six criminal charges that she obstructed a federal investigation and made false statements to investigators. Notably, the in-house lawyer was not accused of engaging in the underlying wrongdoing, the alleged off-label marketing of an anti-depression drug. Rather, she was charged with obstructing and making false statements in connection with a federal investigation into the alleged wrongdoing. The obstruction charge carried a maximum penalty of 20 years in prison, while each false statement count carried a maximum penalty of five years in prison.

Bases for Defendant’s Motion for Judgment of Acquittal

As the defendant described in her motion for judgment of acquittal, GSK’s legal department had made her responsible for “leading the company’s response to the FDA [investigation], and she did so, heading a response team of three in-house attorneys and a retained outside law firm. . . . [Her] actions in this case – receiving the FDA’s inquiry, assembling a response team, defining and negotiating the scope of the inquiry, leading the investigation, gathering the facts, soliciting inside and outside advice, weighing that advice, exercising legal judgment and responding to the inquiring agency – were, simply put, what corporate counsel do.” Def. Mot’n at 17.

By way of example, the conduct forming the basis for the government’s criminal charges included – according to defendant’s motion – the in-house counsel’s:

  • Failure to send the FDA a set of “physician slide decks” in response to a voluntary request letter where defendant did not misrepresent the extent of the production and outside counsel had advised her that she had a choice about whether and when to produce the decks;
  • Producing to the FDA a spreadsheet of speaker events which did not contain additional information on entertainment provided to the speakers, even though defendant did not misrepresent that she would be including such information and GSK’s outside counsel were involved in the decision not to produce the information;
  • Failure to provide the FDA with information about GSK’s “Special Issue Boards” in response to its inquiry about GSK’s advisory boards even though GSK’s outside counsel drafted defendant’s response letter and other correspondence from defendant to the FDA did mention a “Special Issue Board;”
  • Making a statement to the FDA that attendees were not compensated to attend certain events when defendant was aware GSK had provided “gifts and entertainment” to attendees, but there was no indication defendant viewed such gifts and entertainment as “compensation” and outside counsel – with knowledge of the gifts and entertainment – drafted defendant’s statement to the FDA.

In her motion for judgment of acquittal, defendant argued that the government could not prove she had acted with “specific, corrupt intent” because she “acted at all times in accordance with the informed advice of reputable counsel.” Def. Mot’n at 1, 7-11, 13-14, 19-20, 22-23, 29-30. She also argued that the more serious charges of obstruction were precluded under the safe harbor of 18 U.S.C. § 1515(c) because she was engaged in a bona fide, legal representation. 18 U.S.C § 1515(c) (“This chapter does not prohibit or punish the providing of lawful, bona fide, legal representation services in connection with or anticipation of an official proceeding.”). Def. Mot’n at 15-18.

The Government’s Position

In response, the government argued that defendant’s “own notes and the notes of other participants . . . reflect the calculated way in which she chose to deceive the FDA and not follow through on her commitments to provide information covered by the FDA’s request, while telling the FDA that the responses were final and complete.” Gov’t Opp. at 2. The government argued that a “pro-con” memorandum defendant had received from outside counsel relating to the decision whether or not to produce certain speaker decks showed she “knew the information she was withholding demonstrated ‘incriminating’ evidence of the off-label promotion of Wellbutrin for weight loss and other unapproved uses . . . .” Id. The government also argued that whether she relied in good faith on other attorneys involved in the effort – who either “tacitly blessed portions of her behavior or did not tell her it was criminal (and the evidence demonstrated they did not have all the information that [she] had) – [was] a question of fact for the jury to decide. Id.

The District Court’s Ruling

The district court recognized that granting defendant’s Rule 29 motion before the case went to the jury was a drastic measure. The government could not appeal the judgment of acquittal because a successful appeal reversing such judgment entered before the jury returned a verdict would require another trial, thus creating double jeopardy. As Judge Titus stated in his oral ruling from the bench, such motions “are routinely made and rarely, if ever granted.” Tr. at 11. In fact, in his “seven and a half years as a jurist [he had] never granted one.” Id. at 8. But, in this case, he said, “it would be a miscarriage of justice to permit this case to go to the jury.” Id. at 9.

In ruling, Judge Titus initially addressed the “large volume of documentary evidence” presented by government during its case. He observed that “[v]ery significant portions of the documents placed before the Court were what would otherwise be privileged attorney-client documents.” The government had obtained these privileged documents by order of a magistrate judge in the District of Massachusetts under the crime-fraud exception. Id. at 3. Noting the “profound implications for the free flow of communications between a lawyer and client when the privilege is abrogated, as it was in this case,” the judge stated the Massachusetts order was “an unfortunate one” because it allowed “prosecutors . . . to forage through confidential files to support an argument for criminality of the conduct of the defendant.” Id. at 5. According to the judge, “[w]hat those records demonstrate . . . is, first of all, that access should not have been granted to them in the first place.” Id.

But, Judge Titus further stated, the privileged documents also show that this was a lawyer who was “not engaged to assist a client to perpetrate a crime or fraud.” Id. at 5. Rather, they “show a studied, thoughtful analysis of an extremely broad request from the Food and Drug Administration and an enormous effort to assemble information and respond on behalf of the client.” Id. Though the responses given by the defendant “may not have been perfect,” they were “sent to the FDA in the course of her bona fide legal representation of a client and in good faith reliance on both external and internal lawyers for” GSK. Id. As a result, the judge held, the safe harbor provision of § 1515(c) was an absolute bar to the obstruction charges. Id. at 6. That provision was “designed specifically to protect an attorney who is acting in accordance with the obligation that every lawyer has to zealously represent his or her client and place their position in the most favorable possible light.” Id.

As for the other charges, the judge said, the evidence could “only support one conclusion,” i.e., that “defendant sought and obtained the advice and counsel of numerous lawyers.” According to the judge, “[e]very decision that she made and every letter she wrote was done by a consensus.” While some of her statements were not “literally true,” it was “clear that they were made in good faith which would negate the requisite element required for all six of the crimes charged in this case.” Id. at 7. Accordingly, said the judge, “only with a jaundiced eye and with an inference of guilt that’s inconsistent with the presumption of innocence could a reasonable jury ever convict this defendant.” Id. at 8.

In concluding, the judge stated that “there [were] serious implications for the practice of law generated by this prosecution.” Id. at 9. Said the court:

[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 fraud.

There is an enormous potential for abuse in allowing prosecution of an attorney for the giving of legal advice. I conclude that the defendant in this case should never have been prosecuted and she should be permitted to resume her career.

The institutional problem that causes me a great concern is that while lawyers should not get a free pass, the Court should be vigilant to permit the practice of law to be carried on, to be engaged in, and to allow lawyers to do their job of zealously representing the interests of their client. Anything that interferes with that is something that the court system should not countenance.

For those reasons, I am going to grant the Defense’s motion for judgment of acquittal, and that will bring this case to an end.

Id. at 9-10.

Conclusion

Though the defendant was ultimately acquitted of all charges, enormous sums of money and time were expended prosecuting and defending the government’s charges. No doubt, these events profoundly disrupted defendant’s life. For in-house counsel, all of this counsels caution when confronting a broad federal investigation into a client’s alleged wrongdoing. Consider enlisting the advice of outside counsel experienced with such investigations, provide full and complete information to outside counsel, and encourage a frank dialogue with outside counsel. Share draft communications with outside counsel and inquire about the potential consequences of errors or omissions in such communications. Be civil and clear in all communications with the government investigators, even if the investigation seems unreasonable or unfair. Where there are limitations on the information being provided to a government investigator, consider identifying those limitations to avoid a later claim that material information was omitted.

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