In response to the appointment of former New York state representative Kirsten Gillibrand as the Senator to replace Hillary Clinton, a number of anti-smoking advocates have attacked Gillibrand because she previously represented tobacco companies as an associate attorney in the law firm Davis, Polk, & Wardwell. Because she represented tobacco company defendants in court cases, anti-smoking advocates have called Gillibrand a "sellout."
For example, in calling Gillibrand a "sellout" for agreeing to represent Philip Morris in the courtroom, Cliff Douglas - the executive director of the University of Michigan Tobacco Research Network - bases his personal attack on the following: "Senator Gillibrand worked for the New York City law firm Davis, Polk & Wardwell for eight years. From 1995 to 1999, while an associate at the firm, she played a central role in defending the world's largest cigarette company, Philip Morris, whose #1 product, Marlboro, is the most popular cigarette among children as well as adults. She represented Philip Morris when it faced several grand jury investigations and possible criminal charges from the Department of Justice."
Douglas impugns her integrity and character, arguing that defending the tobacco companies is "inappropriate" and "inhumane" and that if Gillibrand had any integrity she would have declined to represent a tobacco industry client. He writes: "I won't spend time tooting my own horn, but will simply say that, as an attorney and as a policy advocate, there were multiple occasions during my early career on which I declined to do work that I thought was inappropriate or inhumane. And personally I would never consider working for a law firm that defends an industry that has consciously and deliberately engaged in ongoing practices designed to lure children into a lifelong addiction that will eventually kill a large percentage of them. That choice should have been a no-brainer, Senator Gillibrand."
Writing on the Huffington Post, Christopher Brauchli went so far as to opine: "The Senator is not qualified to hold public office."
Despite having represented Philip Morris in the courtroom and having received tobacco industry campaign contributions, Gillibrand actually has voted consistently for tobacco control policies. A staunch anti-smoking advocate, Matt Myers, president of the Campaign for Tobacco-Free Kids, stated: "As a member of Congress, Senator Gillibrand has a record of supporting strong measures to reduce tobacco use. Senator Gillibrand several times voted for legislation, now law, to significantly increase federal tobacco taxes to fund expansion of the State Childen's Health Insurance Program. As a member of the House, she also co-sponsored and voted for legislation to grant the FDA authority over the manufacturing, marketing and sale of tobacco products."
Senator Gillibrand apparently has a 100% anti-smoking voting record, having supported the SCHIP cigarette tax increase, the FDA tobacco legislation (although arguably that vote could be called "pro-tobacco" but I won't get into that here), and 100% smoke-free bar and restaurant laws.
The Rest of the Story
These personal attacks on the integrity and character of Senator Gillibrand, based on the fact that she represented Philip Morris in court, are unwarranted and unjustified. Moreover, the opinions of anti-smoking advocates that Senator Gillibrand is a sellout and that she is unqualified for office because she defended a tobacco company in court are unfortunate.
In order to have a democracy and a system of justice, it is absolutely imperative that all defendants - even the most eggregious criminals - be entitled to legal defense. The tobacco companies are perfectly entitled to legal representation and to the full protection of their legal rights under the law.
Someone has to represent the tobacco companies and there is no shame or defect in integrity or character associated with agreeing to be that person.
The opinions being expressed by Douglas and other anti-smoking advocates are dangerous to the system of justice in this country, because they undermine the basic principle that, as Dorothy Samuels expresses it: "The American adversarial system of justice depends on the willingness of lawyers to vigorously represent unpopular, even odious clients."
For this reason, I believe it is inappropriate, unwarranted, and actually dangerous for anti-smoking advocates to be criticizing Senator Gillibrand for representing Philip Morris, regardless of the inappropriate or even illegal behavior that may have been committed by this tobacco company. They are entitled to a vigorous defense and those who provide that defense are protecting - not undermining - the integrity of the American system of justice that separates the United States from many other countries.
Regardless of her work for Philip Morris in the past, there is no evidence that has been presented that Gillibrand has cast a single vote that was influenced or biased on the basis of her previous representation of Philip Morris. Even the Campaign for Tobacco-Free Kids admits that she has been a strong tobacco control supporter (albeit I disagree with their view of whether a vote for the FDA legislation represents a pro- or anti-tobacco position).
The kinds of opinions being expressed by Douglas and others in tobacco control actually undermine the ability of the justice system to provide an appropriate defense for tobacco companies and other "unseemly" clients. The scorn and personal attacks that are being issued publicly against Gillibrand will discourage attorneys from taking on such clients, thus limiting the pool of available representation and precluding the ability of such clients to obtain the best possible defense.
Moreover, these attacks frame the issue inappropriately in the public eye, and undermine the public's appreciation for an essential aspect of the very integrity of our justice system.
While Gillibrand's acceptance of tobacco industry campaign funds is fair game for criticism, her decision to represent Philip Morris as a legal client is not. While anti-smoking advocates apparently would like to see a legal defense denied to these companies, such an outcome would be a travesty of justice that would make the United States no better than other countries which deny their citizens the right to a fair trial.
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