Will tobacco lawyers be indicted? Secrets: Lawyers for the tobacco industry hid research on the dangers of smoking, recently disclosed documents suggest.

Sun Journal

September 11, 1997|By Scott Shane | Scott Shane,SUN STAFF

For decades, whenever an ailing smoker filed a lawsuit, the lawyers for big tobacco responded with overwhelming force. They perused plaintiffs' personal lives, swamped the courts with legal motions and blurred the links between cigarettes and sickness.

That aggressive performance by some of the top law firms in America was unquestionably a success. Until the industry's shift to a settlement strategy this summer, no tobacco company had ever paid damages in a smoking suit.

But what tactics lay behind that triumph of legal defense?

As documents that the tobacco industry fought to hide are forced into daylight, they are providing an inside history of the cigarette companies' struggle to counter what they called "the health scare." And the documents suggest that both in-house attorneys and a half-dozen outside law firms played a crucial role in hiding research on the dangers of smoking.

Anti-tobacco activists assert that the industry's lawyers were the indispensable architects of a scheme to deceive the public, postponing for years the widespread acceptance of the notion that cigarettes kill.

"What we've argued to the court and what we believe, is that from being advisers to people with legal problems, the attorneys came to hide the truth and to help the tobacco companies perpetrate their fraud," says Thomas F. Pursell, senior counsel to Minnesota Attorney General Hubert H. Humphrey III, who has obtained 33 million pages of industry documents in the discovery phase of that state's tobacco lawsuit.

That view has been supported in part by state courts in Minnesota and Florida that have ordered the release of documents the tobacco company lawyers wanted to keep private. They ruled that the documents contain evidence of fraud, so attorney-client privilege does not apply.

But the lawyers may never be held accountable in court for their past actions. A little-noticed provision of the proposed national tobacco settlement contains an escape clause for attorneys.

Under the proposed agreement, which would resolve multibillion-dollar claims filed by 40 states, future smoking-related lawsuits could be filed only against the cigarette companies themselves. Lawyers -- as well as public-relations firms and advertising agencies that may have helped the companies downplay smoking hazards -- could not be sued.

As the White House and Congress consider the settlement, the tobacco lawyers' conduct is being debated in law school classrooms and at legal gatherings. Legal tradition gives attorneys wide latitude for candid, confidential discussions with clients who may have engaged in wrongdoing. The legal system depends upon the willingness of lawyers to represent people and corporations accused of even heinous crimes.

And the tobacco industry, which has legal bills of roughly $600 million a year, has drawn some of America's top legal talent. "Tobacco, aside from the fact that everyone hates you, is the ideal client," says law Professor John Banzhaf, who heads Action on Smoking and Health. "They litigate everything, and they never refuse to pay a bill."

Fearing that a single courtroom loss could open the door to a bankrupting onslaught of lawsuits, the industry has never stinted on representation. "The tobacco companies have been willing to hTC spend $10 million to defeat a $1 million claim," Banzhaf says.

But in crafting a defense strategy for their lucrative client, did some of tobacco's lawyers cross an ethical line? The assertions that they did are based on a mountain of industry documents prepared since the 1950s, when scientists began to link smoking with cancer and other diseases.

"No one has any objection to vigorous and ethical representation of one's client," says Edward L. Sweda, senior attorney for the Tobacco Products Liability Project at Northeastern University. "But this behavior is truly extraordinary. Reading the documents as they come out, it's clear that this conduct went way beyond normal legal representation."

Among the documents Sweda and others cite are eight released last month after a Florida appeals court ruled they contained evidence of fraud. A court-appointed master wrote that they showed tobacco lawyers planned "fraudulent activities and undertook to misuse the attorney/client relationship to keep secret research related to the true health dangers of smoking."

The most controversial excerpts include:

A 1964 letter from a lawyer at the Washington firm now known as Arnold and Porter about a planned survey on smoking risks. "If the returns were unfavorable," the letter said, "they could be destroyed and there would be no record in any office of the nature of the returns."

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