The federal government has ramped up its efforts to hold individuals accountable in cases of corporate wrongdoing, and in-house counsel have more frequently than ever found themselves in the crosshairs of those investigations. In the past, the Department of Justice (DOJ) and the Securities and Exchange Commission (SEC) rarely targeted in-house lawyers for acting in their role as legal advisors. Nonetheless, recent criminal and civil actions commenced against in-house counsel for participation in alleged wrongdoing committed by companies show that the actions of corporate counsel are being scrutinized closely by the government.
In 2010, the DOJ indicted an associate counsel at GlaxoSmithKline (GSK) for obstruction of justice and making false statements to the Food and Drug Administration (FDA) during an investigation into off-label drug marketing practices. Although the DOJ charged that this lawyer hid information from the FDA and falsely told the FDA that the company had not engaged in any improper conduct, a judge dismissed all of the charges at trial. The judge found that the attorney “should never have been prosecuted” and commented that “a lawyer should never fear prosecution because of advice that he or she has given to a client.”