"Liberty has never come from the government. Liberty has always come from the subjects of it. The history of liberty is a history of resistance." -- Woodrow Wilson
from The Moral Compass of the American Lawyer
by Richard Zitrin & Carol M. Langford
Ballantine Books, 1999
The attorney-client privilege is hardly a new concept. It goes back to ancient Rome, where slaves doing their masters' business were prohibited by law from disclosing their masters' secrets. But while there are strong historical and social bases for the individual's right to this privilege, these did not apply to corporations. The entire idea of a personal right to speak to a lawyer in strictest confidence simply doesn't fit the corporate model. But although there remains no such privilege in Europe, and while our Supreme Court didn't formally approve the privilege until 1981, over the last 100 years corporations have used the attorney-client privilege to hide all manner of wrongdoing.
Nowhere has this protective shield been more widely and successfully used than in the tobacco industry. From the mid-1950s through the late 1990s, tobacco companies compiled an extraordinary record of denying the public access to information on the dangerous and addictive properties of smoking, while at the same time claiming that no one had ever proven these dangers.
In order to deny litigants access to its research, the industry did its best to fight a war of attrition over every piece of discovery. "To paraphrase General Patton, the way we won these cases was not by spending all of Reynolds's money, but by making that other son of a bitch spend all of his," said R.J. Reynolds general counsel J. Michael Jordan to his fellow tobacco industry lawyers in 1988. But that technique alone was not enough. So the industry took pains to place all damaging documents -- especially those relating to industry research projects -- under the umbrella of the attorney-client privilege.
Sensitive documents should be "prepared ... in anticipation of litigation" to be covered by the privilege, advised Brown & Williamson Tobacco's in-house counsel J. Kendrick Wells. A 1979 Wells memo recommended routing all research projects through the company's lawyers in an effort to make all the information confidential attorney-client communications. Writing a memo to lawyers after the fact about a research project might make the memo privileged, without hiding the existence of the project itself. So, Wells wrote in 1984, "direct lawyer involvement is needed in all [company] activities pertaining to smoking and health, from conception through every step of the activity." In this way, the company could argue that the project's entire existence was protected from disclosure.
The tobacco companies perfected this technique. As early as 1968, the Washington, D.C. law firm of Arnold & Porter, working as outside counsel for tobacco interests, suggested a survey to prove that most Americans were already aware of the dangers of smoking. But in case the results came out the wrong way, the lawyers suggested that they directly commission and receive the survey. "Should the results prove unfavorable," said the memo, "there will be nothing in the [survey takers'] records to subpoena...." The information would be harder to discover "if the survey were in an attorney's files."
Documents finally uncovered in a 1992 New Jersey case against four tobacco giants described the Council for Tobacco Research (CTR), and its "special projects" unit, supervised by lawyers rather than scientists. Lawyers were given decision-making authority over both the hiring and firing of scientific employees and the selection of research projects to be pursued. Hon. H. Lee Sarokin, the judge who presided over two New Jersey tobacco cases, quoted one CTR memo as acknowledging that it had been set up as "an industry 'shield' ... a front," and another CTR participant as saying, "When we started CTR Special Projects, the idea was that the scientific director of CTR would review a project. If he liked it, it was a CTR special project. If he did not like it, then it became a lawyers' special project.... We wanted to protect it under the lawyers. We did not want it out in the open."
Five years after Judge Sarokin wrote his opinion, the floodgates of information finally opened. In December 1997, Minnesota judge Kenneth J. Fitzpatrick ordered the public release of 865 tobacco company documents that the industry had tried to hide behind the attorney-client privilege. Fitzpatrick charged big tobacco with a "conspiracy of silence and suppression of scientific research" by its improper claim that the research involved "communications between attorney and client." In late April 1998, after the Supreme Court refused to reverse Fitzpatrick's order, the House Commerce Committee released 39,000 formerly secret tobacco documents. A few days later, the New York State Attorney General went to court to dissolve the non-profit charter of the Council for Tobacco Research on the grounds it was a fraudulent tobacco front, not an independent research institute. By early May, the tobacco defendants had settled the Minnesota case for $6.6 billion.
Overseeing Big Tobacco's efforts, pulling the strings from its secret sanctum sanctorum, according to several lawyers and scientists interviewed for a June 1998 Business Week article, was the Committee of Counsel, which began life in 1958 as a group of lawyers known as "the Secret Six" before growing to well over a dozen in-house and outside tobacco attorneys. The Committee has been accused by many health advocates of essentially running the industry, reporting directly to each company's president, and institutionalizing the industry's opposition to researching safer cigarettes.
The documents disclosed in Minnesota and Washington lend strong support to these contentions. According to the Committee's own minutes, the group's lawyers understood that the rule was "advocacy primary and science secondary." It was to this committee that Arnold & Porter made its secret survey suggestion. And when the industry faced a demand in 1981 from the federal Department of Health & Human Services to provide a list of cigarette ingredients, the Kansas City law firm of Shook, Hardy & Bacon, which held a seat on the Committee, recommended that the industry test whether any particular additive caused "adverse results," and then "remove the additive, and destroy the data."
Other documents reveal how scientists routinely sought approval from lawyers for research requests -- and amended them as counsel required. Some projects were simply vetoed by the attorneys, such as a study of how tobacco damages a body cell's genetic structure, because the results might help the "other side," or the "enemy." Lawyers suppressed a mid-1970s research effort of a scientist who believed he had found a way to remove carbon monoxide from cigarettes. And as far back as 1953, lawyers prevented circulation of a "volume of material which 'indicted' cigarette smoking" as unhealthy. As Minnesota Attorney General Hubert H. Humphrey III concluded, "Tobacco lawyers, not scientists, were the gatekeepers controlling research on smoking and health."
Excerpted from pages 100-103 of The Moral Compass of the American Lawyer: Truth, Justice, Power, and Greed, © 1999, Richard Zitrin [email protected] & Carol M. Langford [email protected] All rights reserved.
This critically acclaimed book, about how the legal system allows lawyers to define "ethics" as what they can get away with rather than how they should behave, is written by two noted legal ethics professors who write frequently about ethics and morality in the legal profession.