Tobacco Counsel Coverup? [12/30-4]

Excerpts from TOBACCO LAWYERS' ROLE: COUNSEL OR COVERUP?;
By Peter S. Canellos, Boston Globe [12/28/97]

David R. Hardy was the dean of tobacco lawyers, using his Midwestern common-sense manner to bring out flaws in study after study showing links between cigarette smoking and disease.

But Hardy knew that every lawsuit was a potential disaster for the industry that succored him, and that even his tightly spun arguments were not likely to withstand the revelation that tobacco-company employees themselves believed that smoking was harmful.

"I can anticipate rulings which would leave us defeated by our own hand," Hardy wrote in a "confidential" memo in 1970, warning one of his tobacco clients, Brown & Williamson, that comments by researchers at its British sister company about the potential dangers of cigarettes might one day be prone to discovery in an American lawsuit.

The day Hardy anticipated is here. But cigarette makers are not the only ones facing atonement because of the airing of industry documents. Lawyers for dozens of powerful firms, including Shook, Hardy & Bacon, the Kansas City partnership co-founded by Hardy, are coming under scrutiny for their broad and - according to recent court rulings - inappropriate assertion of the attorney-client privilege.

Over the past four decades, the tobacco industry deployed an army of legal talent, thousands of the nation's most highly paid lawyers from an estimated 200 firms guarding the gates of Philip Morris, R.J. Reynolds, and other tobacco titans. Defending Big Tobacco became, by many measures, the most lucrative corporate legal battle of the 20th century.

But now, as courts fault defense lawyers for withholding too many damaging papers and many states bring suits against the leading tobacco defenders, legal specialists are wondering if the profession's four-decade run of success in protecting the tobacco industry from liability was its greatest triumph or its most horrifying lapse of ethics.

"Their strategy was to assert the attorney-client privilege and wait until the courts turned them over and shook them upside down and forced them to give up" documents about health and smoking, said Rosanna Cavallaro, an associate professor of legal ethics at Suffolk Law School.

Invoking confidentiality forestalled the dissemination of tobacco papers for decades, because plaintiffs, not knowing what was in the documents, could not make the requisite showings in court to challenge the attorney-client privilege; judges had to accept the lawyers' word that the papers were, indeed, confidential communications between themselves and their clients, or part of their own work product.

In a 1996 deposition, Brown & Williamson's assistant general counsel J. Kendrick Wells III testified that during the past 15 years, through scores of lawsuits, the firm released only between 500 and 800 documents; the rest of the potentially tens of thousands of documents requested by plaintiff's lawyers, including all relating to several key research projects, were stored under the attorney-client privilege.

Now, after two state-court decisions peeled back the cloak of confidentiality, thousands of the documents have been released, some as recently as two weeks ago. They show lawyers guiding research and crafting public-relations strategies, giving new force to allegations that tobacco-industry defenders went beyond their traditional advice-giving role in assisting cigarette makers.

"Conspiracy of silence"

If not for two key events, the tobacco industry might still be beyond scrutiny. The leaking of thousands of documents by disgruntled Brown & Williamson clerk Merrell Williams in 1994 cast new light on the inner workings of the cigarette makers. Then, last year, the surprise settlement by the smallest tobacco company, Liggett Group Inc., opened thousands more documents to outside eyes.

The new evidence reinvigorated state attorneys general to sue cigarette companies to recover Medicaid payments for smoking-related illnesses. With deep pockets to draw from, plaintiff's attorneys examined the companies' "privilege logs" and crafted arguments to persuade judges to take a closer look at what was being placed under the attorney-client umbrella.

The results so far have been a body blow to the industry and its lawyers. In Florida last summer, a special master reviewed 357 papers claimed under the attorney-client privilege by lawyers for the Tobacco Institute, the industry's lobbying and public relations arm. The master found that confidentiality was wrongly asserted for 311 of the documents, with 31 falling under the "crime-fraud exception," meaning that they showed evidence of an illegal coverup.

Two weeks ago in Minnesota, a district court judge offered an even more scathing assessment, ordering the release of a bloc of 865 documents. He, too, cited the crime-fraud exception.

Judge Kenneth Fitzpatrick said his review of the papers, including one that referred to a link between smoking and cancer as early as 1955, revealed "a conspiracy of silence and suppression of scientific research," achieved in part by improperly "inserting" research into "communications between attorney and client."

Drawing clear lines around the attorney-client privilege is difficult when the client is a corporation, legal ethicists say. And the position of the tobacco industry, on war alert for 40 years, fearful that even one courtroom setback could open the door to billions of dollars in damage awards, is unprecedented.

A foot-dragging strategy

Still, the question remains: Did lawyers use their own confidentiality, a privilege meant to facilitate open communication between defendants and lawyers after a crime or injury has taken place, as a strategy to cover up ongoing offenses?

George Washington University Law School Professor John Banzhaf, a 30-year antismoking activist, has turned his guns on the law firms that, he insists, share responsibility for keeping important health information from the public.

"This is the best example of law at its worst," said Banzhaf. "If people were shocked or disturbed by what they saw in the defense of O.J. Simpson, this is a million times worse."

Banzhaf said the tobacco lawyers invoked the attorney-client privilege cravenly, simply as a delaying tactic. "I don't think they ever thought it would stand up, but you have to remember the tobacco companies won by attrition," he said.

Safeguarding statements

There is now little dispute that the tobacco industry placed lawyers from outside firms on key committees overseeing their public relations, research, and inter-company communications. Whether or not the industry intended to pitch a tent of secrecy over these sensitive areas, the effect was that many of the papers that passed through the lawyers' hands were stamped as private correspondence between lawyers and/or their clients.

Lawyers from major firms helped develop strategies for the Tobacco Institute by serving on its Research Review Committee and Communications Committee, among others. A special "Ad Hoc Committee," including David R. Hardy and fellow tobacco defenders Edwin Jacob and Janet Brown, both senior partners at large New York firms, helped recommend research projects to the Council for Tobacco Research, an industry-funded scientific institute that was often portrayed as being under the control of independent researchers.

"Enclosed is a revised copy of our proposal reflecting the several suggestions you made," wrote Samuel B. Lehrer, a medical researcher at Tulane University, to attorney Timothy M. Finnegan, of New York's Jacob, Medinger and Finnegan. ". . . Please let me know if all of this meets with your approval and if so I will forward the proposal to the Council for Tobacco Research."

Documents also indicate that industry-funded scientists passed drafts of their research reports for wording suggestions to lawyers for the Washington firm of Covington & Burling, which helped locate expert witnesses for the tobacco industry.

"As we agreed yesterday, I will make the appropriate changes and additions in the final draft of the report and submit this document to the committee for their final review," wrote James L. Gargus, a project manager for Hazleton Laboratories, which was overseeing sensitive nicotine research, to Allan J. Topol, a partner at Covington & Burling.

Within the different companies, there is evidence that potentially damaging research was routed through law offices to cover it under lawyer-client confidentiality.

Brown & Williamson, for one, took David R. Hardy's warning about the need to safeguard its own statements seriously: Its assistant general counsel, according to a 1979 memo, ordered that studies by its British affiliate be mailed to its American lawyers because "continued law department control is essential for the best argument for privilege."

Richard Daynard, chairman of the Tobacco Products Liability Project at Northeastern University School of Law, also feels the tobacco defenders exceeded their lawyerly roles. "It's important for non-lawyers to understand this is not what lawyers ordinarily do," he said. "You're not supposed to be in there not making suggestions but running the steering committee for the commission of fraud, which is what this committee of counsel was doing."

A 1966 letter from David R. Hardy to the general counsels of the major tobacco firms offered "progress reports" on 22 "special projects" - all of them research into tobacco and disease - that were "previously undertaken" by his Ad Hoc Committee of lawyers.

Shook, Hardy & Bacon has been sued in five states as an alleged co-conspirator in the tobacco coverup. David K. Hardy did not respond to a request for an interview from the Globe, and is known as a man of few public utterances. His only published comment about the lawsuits was to deride them as an effort "to separate the law firms from their clients."

But that is just the point, counters Berly: In the frantic scramble to keep ailing smokers from discovering what the tobacco companies knew about the links between cigarettes and disease, there was far too little separation between the tobacco barons and their lawyers.

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