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Understanding the Difference Between Advocacy and Obstruction When Facing Government Investigations
Franklin Brown, Steven Woghin, Lauren Stevens. All three attorneys rose to the top of the in-house counsel ranks at their companies. All three faced unprecedented challenges when their companies came under federal investigation. Most importantly, all three were accused of obstruction of justice in how they handled their companies' responses to government investigations. As executive vice president and chief legal counsel for Rite-Aid Corp., Brown was accused of attempting to deceive government investigators and the law firm hired to perform an internal investigation into the manipulation of the company's financial statements by coaching witnesses to lie and backdating contracts. Ditto for Woghin, senior vice president and general counsel of Computer Associates International Inc. As vice president and associate general counsel of GlaxoSmithKline, Stevens was accused (but later exonerated at trial) of concealing evidence and making false statements to the Food and Drug Administration (FDA) investigating the company's off-label promotion of Wellbutrin.
In light of these cases, and others, corporate counsel must understand the difference between advocacy and obstruction when facing government investigations.
Obstruction Under Federal Law
Laws prohibiting obstruction of justice can be found throughout the U.S. Code, depending on the subject matter and regulatory scheme involved. However, many more commonly used statutes prohibiting obstruction generally reside in the Crimes Code, Chapter 73, 18 U.S.C. Section 1501 et seq. These laws apply to federal proceedings before the judiciary, executive departments/agencies, and Congress and are not limited to criminal investigations. Putting aside the more obvious forms of criminality (such as the use of threats/violence, witness intimidation, and jury tampering), the laws most relevant to corporate counsel guiding the company through a federal investigation are those prohibiting tampering with witnesses and physical evidence.
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