Obstruction of Justice—University of Medicine and Dentistry of New Jersey

According to the Newark Star-Ledger, the University of Medicine and Dentistry of New Jersey [hereinafter UMDNJ] could be facing obstruction of justice charges in addition to the health care fraud investigation it is currently facing.^[1] In addition to allegations that UMDNJ has engaged in “tens of millions of dollars” in fraudulent Medicare and Medicaid billing, the US Department of Justice, in a letter to the university’s attorney, is alleging that the university is not cooperating with the health care fraud investigation.^[2]

Among the allegations are that:

• the university deleted emails on a regular basis, despite orders to retain all documents;
• veiled threats of retaliation were made against a key witness; and
• UMDNJ’s attorneys conducted their own internal investigation, despite DOJ instructions not to do so.^[3]

According to the Star-Ledger, failure to comply with the DOJ’s instructions could result in the university being indicted for fraud and conspiracy.^[4] Unfortunately, the article does not contain enough information to make a determination on how serious the alleged complaints really are; it merely hints that the emails were part of a subpoena for the personnel files and archived email of 19 current or former executives, one of whom was forced to resign last week.^[5] Furthermore, it merely states that one of the university’s board members, retired Superior Court Judge Alexander Menza, called threats, “even veiled, as ‘terribly wrong; immoral. You can’t do things like that. It’s just not done.'”^[6]

The complaint about the university’s internal investigation, however, seems extreme. Any person or organization would be foolish to accept only the prosecution’s version of the truth. Furthermore, an internal investigation could unearth information that would be beneficial to mounting an effective defense. Even though the American Bar Association’s Model Rules of Professional Conduct places special requirements on prosecutors to “make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense,”^[7] criticizing, or even forbidding, an organization’s attorneys for conducting their own investigation seems especially harsh. This is even more striking when one considers that an attorney owes a duty of diligence to his client, and a charge to “pursue a matter on behalf of a client despite opposition, obstruction or personal inconvenience to the lawyer, and take whatever lawful and ethical measures are required to vindicate a client's cause or endeavor.”^[8] He must do this with “zeal in advocacy.”^[9]

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[1] Josh Margolin, et al., Letter Details UMDNJ Bid to Foil Probe, Star- Ledger, Dec. 27, 2005.
[2] Id.
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] Model Rules of Prof’l Conduct R. 3.8(d) (2004).
[8] Id. R. 1.3 cmt. 1.
[9] Id.