In-House Counsel Beware!

01 Jan 2012

This Article argues that the prosecution of Lauren Stevens for covering up the alleged crimes of GSK was misguided both as a matter of law and a matter of policy. In particular, this Article contends that the government should not prosecute attorneys for obstruction of justice or other cover-up crimes for actions taken in good faith during a government investigation into a client's conduct. Part I provides background on the Lauren Stevens case and the convergence of the four prosecution trends that led the government to indict her. Part II argues that Lauren Stevens did not obstruct the government's investigation of GSK. Accordingly, the government should not have sought attorney-client privileged documents by invoking the crime-fraud exception or charged Stevens because the evidence did not support the charges. Part III argues that the government should not charge in-house counsel or outside counsel for obstruction of justice when the attorney's actions were taken in good faith during the representation of the client. It proposes that the U.S. Department of Justice (DOJ) provide guidance to U.S. Attorneys on bringing charges against defense counsel. In addition, it recommends that the DOJ institute a rule requiring approval before instituting charges against defense counsel for actions taken during the course of the investigation. This Article concludes that the good faith standard, guidance to prosecutors, and an approval mechanism are necessary actions to rein in government investigations.