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Thursday, November 11, 2010

Forcing Good Lawyers Out?

There is an interesting -- some would say, alarming -- new criminal prosecution of a high-ranking assistant general counsel, Lauren Stevens, at GlaxoSmithKline for allegedly making false representations in advocacy correspondence with the Food and Drug Administration.  (There was also an article in the National Law Journal, available at www.law.com.)

Lawyers often base their judgments and statements on information and representations provided by a client, and do not investigate or try to independently verify the accuracy or completeness of such information or representations. Trying to do so can be difficult; it requires the client's cooperation, after all.

This prosecution is another step towards new, government-imposed obligations on lawyers. It sends the implicit message that advocacy on behalf of clients interacting with the government puts the lawyer at risk, as advocacy disfavored by the government can become the basis for a "crime.".

It also sends a secondary, less noticed but more troubling message: Any representation by a lawyer to the government that fails to say exactly what the government desires can be viewed as criminally misleading, and the party getting prosecuted is not the supposed wrongdoer client, but the lawyer!

This is a recipe for some arbitrary prosecutions. It also creates a moral hazard, as it can encourage wayward clients to do wrong, deceive the lawyers (or auditors - another profession at risk), and then when they get caught, blame the lawyers.

Why is the government bent on intimidating lawyers, some of the people most inclined and able to fight injustice and expose wrongdoing?


If the Stevens prosecution sets a new standard, any lawyer risks imprisonment any time he or she communicates with the government.

Jailing lawyers for disfavored advocacy is something that happens in Iran. It should not be allowed to happen here.
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ERIC DIXON is a New York investigative lawyer who specializes in strategic analysis, legislative and privacy advocacy and various investigative matters. He is available for comment or consultation at 917-696-2442 and by e-mail at edixon@NYBusinessCounsel.com.

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