ALM Properties, Inc.
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4 Tips To Help In-House Counsel Avoid Becoming a DOJ Target
Last years decision in U.S. v. Stevens was a wake-up call for corporate litigators. While Federal District Court Judge Roger Titus dismissed the indictment against GlaxoSmithKlines former associate general counsel Lauren Stevens, who had managed GSKs response to a Federal Drug Administration investigation into off-label promotion of Wellbutrin, the case vividly highlighted the personal risk that comes with corporate litigation work. Make no mistakegiven their understanding of the business, high level of responsibility, and role as trusted advisers of top corporate brass, in-house counsel are and will remain big targets of federal investigators.
1. If a Transaction is Too Risky, Make a Note of It
Doing business on a global scale comes with risk. As an in-house lawyer, your job is to spot that risk and help the business team to determine how to proceed. In some cases, you may conclude that a particular corporate activity creates too much law enforcement risk, and that the company should not proceed. In such circumstances, consider putting your thoughts in writing. Without a paper trail, you face potentially as much exposure as those other members of the executive team who rejected your advicedespite the absence of any personal gain.
2. Pay Attention to Employee Complaints
Among the biggest mistakes that in-house counsel can make is to ignore employee complaints. Once an employee flags a potential issue of noncomplianceeither formally or in a mere commentyou must follow up and document your response.
3. When in Doubt, Seek Outside Counsel
In some cases, it may be objectively unclear whether a certain corporate activity is legally permissible. It goes without saying that in such circumstances, it is a good practice not to rely on your instincts, but rather to rely on outside counsel.
4. Avoid the Team Mentality
One of the more positive trends for in-house lawyers is the opportunity to participate more actively in managing the business. Lawyers are increasingly involved in important strategic decisions, and with good reason. However, as lawyers are drawn ever deeper into the fold of corporate management, they must keep in mind their primary functionhelping the company mitigate legal riskand avoid adopting a team mentality.