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Fair to Hold Attorneys to Responsible Corporate Officer Doctrine?

By Stephanie Rabiner, Esq. on September 27, 2011 | Last updated on March 21, 2019

After a decade of high-profile violations of food and drug laws, the Food and Drug Administration appears to be reviving the 1943 Responsible Corporate Officer Doctrine, holding executives responsible for illegal conduct that may have occurred without their knowledge.

Limited to misdemeanor convictions, these new regulators are also seeking to exclude these executives from participating in a variety of government programs, effectively ruining their careers.

Oh, and they're going after the lawyers, too.

Rarely used, the Responsible Corporate Officer Doctrine, created by the Food Drug and Cosmetic Act, places strict liability on corporate executives when a company violates a public welfare statute.

The executive need not approve of the illegal activity, nor know that it was taking place.

In a fairly recent case involving the misbranding of Oxycotin, the Wall Street Journal reports that three Purdue Frederick executives pled guilty to misdemeanor violations despite there being no proof of knowledge.

The three executives include the company's former general counsel, which has garnered the attention of the Association of Corporate Counsel.

The ACC believes that applying the Responsible Corporate Officer Doctrine to in-house lawyers flies in the face of the attorney-client relationship, according to the Journal.

It's generally unheard of to hold an attorney responsible for the acts of a client when the attorney is not willingly complicit in the illegal activity. Doing so creates a conflict of interest and raises a number of ethical concerns.

The case, which is on appeal in the D.C. Circuit, will certainly be one to watch--if not for assessing your own personal liability under the Responsible Corporate Officer Doctrine, then for assessing the liability of those you represent.

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