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May 10, 2011

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KK

Once the government targets attorneys (whether in-house or outside counsel) for obstruction-related charges, where the attorney has no involvement or interest in the alleged underlying misconduct, we need to ask serious questions. Client representation is, by its nature, rife with nuances and attorney client privileged communication. It is ill-advised for a government regulatory agency (in this case the FDA), to examine, after the fact, attorney client privileged communications in an effort to build a federal obstruction case against an attorney who did not benefit from the alleged underlying misconduct. That would make the attorney’s job impossible, as a good faith judgment decision made by the attorney during the course of the representation, which ultimately is found to be less than optimal from the government’s point of view (or, with hindsight, even proves to be incorrect) could result in criminal liability for the attorney. Attorneys are retained to represent their clients. They are not pseudo government investigators, and they cannot be expected to be prescient, or to possess divine intuition.
Ms. Stevens rightfully won this case, but I’m sure the judge’s statement that “this case should never have been brought” will provide her little solace at this point. She has been dragged through many years of painful federal criminal prosecution, having her reputation and career irreperably harmed in the process. Her personal life has likely been permanently affected. Taking on the DOJ is not a decision to be taken lightly – 95% of federal convictions result from pleas. Federal obstruction statutes carry maximum penalties of 20 years in prison, and the government has unlimited resources. To say that “this case should never have been brought” seems to belittle the courage that Ms. Stevens displayed in fighting for what’s right. I think we need to take a closer look at “prosecutorial discretion.” There apparently was reluctance by several US attorneys to sign off on this indictment. I wonder who ultimately signed it, and what he or she is doing now? This type of prosection, particularly in an environment of trillion dollar deficits and devastating budget gridlock, is pretty disgraceful.

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