Thursday, April 30, 2009

Guilt By Association: The Basis for Anti-Smoking Advocates' Attacks on Kirsten Gillibrand for Professional Misconduct

A number of anti-smoking advocates have been issuing personal attacks against the ethics and character of New York Senator Kirsten Gillibrand, accusing her of professional misconduct as an attorney by virtue of her having represented Philip Morris while she was an associate at the law firm of Davis, Polk, & Wardwell. Because she represented tobacco company defendants in court cases and because they allege that she was guilty of professional misconduct, anti-smoking advocates have called Gillibrand a "sellout."

For example, Cliff Douglas - the executive director of the University of Michigan Tobacco Research Network - has written two pieces which attack Gillibrand's ethical conduct (commentary #1; commentary #2).

In this post, I analyze the evidence that has been presented in support of the allegation that Gillibrand is guilty of professional misconduct and conclude that the accusation is based on guilt by association, not on appropriate evidence that would warrant such a personal attack.

The Evidence

Based on a paragraph by paragraph analysis of the commentaries written by Douglas, here is the evidence presented to support the allegation of scientific misconduct, along with an evaluation of the adequacy of the evidence:

From the first commentary:

1. "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."

Representing a company which is under investigation for possible civil or criminal charges is not professional misconduct. In fact, it is an unenviable yet necessary part of our system of justice. The simple fact that she represented a tobacco client does not imply that she was guilty of misconduct.

2. "When she ran for Congress, Gillibrand's campaign website reportedly did not mention her years of work on behalf of the tobacco industry. But clearly she knew, and knows, where some of the bodies were buried. She appears, using her maiden name of Rutnik, on 1,175 documents obtained from Philip Morris' company files as a result of the 1998 legal settlements between the company and state attorneys general. The caveat is that, while 775 of those documents have actually been made public, the other 400 remain confidential based on claims of attorney-client privilege."

I agree that it was inappropriate for Gillibrand's campaign website not to disclose that she had previously worked on behalf of Philip Morris. However, I do not view that as being professional misconduct as an attorney. The fact that she appears on 1,175 tobacco industry documents iw hardly evidence of professional misconduct. All it shows is that she did indeed do a lot of work for the tobacco companies. In fact, if she didn't appear on any tobacco industry documents, that might be better evidence of misconduct, because it might suggest that she was being paid without actually doing anything for the company. Finally, the fact that 775 documents have not been released due to attorney-client privilege claims is not evidence of professional misconduct. If it were, then every lawyer for every corporation that has had charges brought against it would be guilty of professional misconduct for attempting to protect documents under the attorney-client privilege claim.

3. "The documents disclose that, when she represented Philip Morris, Kirsten Gillibrand traveled to Germany at least four times to interview company scientists at a once-secret laboratory called INBIFO that Philip Morris used to conduct tobacco-and-health research that it wanted to keep away from the prying eyes of U.S. courts and American health officials. Those research projects studied nicotine addiction, cancer-causing substances in tobacco and cigarette smoke, radioactivity in tobacco, among many other things."

I simply don't see any confirmed evidence of misconduct based on the fact that Gillibrand visited the facility in Germany. What we would need to know is what advice she gave the tobacco companies. Did she instruct them to destroy documents to protect them from being found guilty of fraud? The fact of her gaining knowledge of the fact that documents were being hidden or that research was being conducted is not misconduct. Unless, of course, she advised them to continue to hide these documents on the basis of concealing fraud.

She interviewed company scientists. How is that misconduct? It would be misconduct if she instructed those scientists to conceal evidence of potential fraud. But no evidence is presented to indicate that Gillibrand advised or directed these scientists to conceal documents that she knew were evidence of fraud. For all we know, Gillibrand might have advised the scientists not to destroy documents that could have been incriminating. It seems to me that we have no idea what she advised or instructed the company or these scientists.

4. "It was at about the same time that Altria, the parent company of Philip Morris, hired Gillibrand's high-powered lobbyist father, Douglas Rutnik, in 2005-2006, to lobby for a cap on damages against tobacco companies and against a bill to restrict smoking in restaurants."

Interesting and unfortunate, but it doesn't seem appropriate to hang Gillibrand based on the actions of her father.

5. "Gillibrand must have done an exceptional job working for Philip Morris during her years at Davis, Polk & Wardwell. When she ran for Congress in 2006, her former employers contributed a cumulative $48,300 to her campaign."

If receiving tobacco industry campaign contributions is evidence of professional misconduct, then most of the Congress is guilty.

6. "I was partly responsible for the launching of the U.S. Attorney General's four-year criminal investigation of the tobacco industry, and later contributed to the successful effort to persuade the Attorney General to sue the industry under the civil racketeering laws. In both instances, I prepared detailed legal analyses and recommendations at the request of members of Congress, who then forwarded them to the Attorney General. The point of reciting my role is to highlight my familiarity with what Senator Gillibrand was involved in, and with whom she was working so hard to protect. The picture isn't pretty. (For additional background, see the book Civil Warriors: The Legal Siege on the Tobacco Industry by investigative reporter Dan Zegart, which reads like a non-fiction version of a John Grisham thriller.)"

Here, the argument is guilt by association. With whom she was working is deemed evidence of her guilt. She is being judged based on the actions of other tobacco industry lawyers. No specific evidence or analysis of Attorney Gillibrand's actions is provided.

In fact, the names "Gillibrand" and "Rutnik" do not even appear in the index of Zegart's book, which is being used to skewer Gillibrand and find her guilty of professional misconduct. Interestingly, however, one lawyer's name which does appear in the index is that of anti-tobacco lawyer Dick Scruggs, who most definitively has been found to be guilty of professional misconduct.

It's interesting to note that by Douglas' reasoning, one could accuse all anti-tobacco lawyers of being guilty of professional misconduct based on Scruggs' actions. The reasoning being used is essentially the same. One lawyer is being judged based on the actions of other lawyers representing the same clients.

Notice that Douglas is very careful to say "my familiarity with what Senator Gillibrand was involved in," rather than "my familiarity with Senator Gillibrand's actions as an attorney."
In other words, Gillibrand is guilty because there are other tobacco industry attorneys who have acted in an unethical manner. Even though we don't know whether Gillibrand also acted unethically, we're going to assume that she did since she was a tobacco lawyer like these others.

This is classic guilt by association.

7. "If a professional, even a young one, has serious qualms about the type of work she or he has been asked to devote countless hours to, he or she can make a choice. Do the right thing, or become a sellout. 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."

Esssentially, Douglas is arguing that working for the tobacco industry is inappropriate and inhumane. While I applaud him for making his own choice not to represent the tobacco companies, I do not see how representing a tobacco defendant makes one guilty of professional misconduct. Certainly, the companies have the legal right to retain counsel to defend them; thus, the simple act of agreeing to defend the companies is not professional misconduct.

From the second commentary:

1. "Let's briefly examine what is involved here by looking back at a landmark federal court decision issued on August 17, 2006 in the case of United States v. Philip Morris USA et al. In that case, brought by the U.S. Department of Justice against this nation's major cigarette companies, U.S. District Judge Gladys Kessler held Kirsten Gillibrand's client and the other defendants liable for having violated civil racketeering (RICO) laws by lying, and continuing to lie, about the health risks of smoking and secondhand smoke and their marketing to children. ... How does this relate to Senator Gillibrand's work as a lawyer defending such actions? Judge Kessler helped answer this question: 'A word must be said about the role of lawyers in this fifty-year history of deceiving smokers, potential smokers, and the American public about the hazards of smoking and secondhand smoke, and the addictiveness of nicotine. At every stage, lawyers played an absolutely central role in the creation and perpetuation of the [racketeering] Enterprise and the implementation of its fraudulent schemes. They devised and coordinated both national and international strategy; they directed scientists as to what research they should and should not undertake; they vetted scientific research papers and reports as well as public relations materials to ensure that the interests of the Enterprise would be protected; they identified "friendly" scientific witnesses, subsidized them with grants ... paid them enormous fees, and often hid the relationship between those witnesses and the industry; and they devised and carried out document destruction policies and took shelter behind baseless assertions of the attorney client privilege. What a sad and disquieting chapter in the history of an honorable and often courageous profession.'"

While it is true that many tobacco lawyers, over the course of the past five decades, have played a role in the implementation of fraudulent schemes by the tobacco industry, what specific role did Kirsten Gillibrand play in this fraud? Did she help create and perpetuate the Enterprise? Did she direct scientists as to what research they should or should not undertake. Did she carry out document destruction?

I'm not arguing that Gillibrand did not play such a role. For all I know, she might have had an industrial strength shredder and destroyed millions of incriminating documents. It's just that I admit that I don't know for sure. I have no evidence or information to go on that would allow me to make a judgment about whether Gillibrand herself acted unethically and committed professional misconduct. And therefore, I am not in a position to accuse her of such misconduct and I would never make such an accusation without having such evidence.

I thoroughly examined the entirety of Judge Kessler's decision and searched for any mention of Kirsten Gillibrand and her role in the professional misconduct of tobacco industry lawyers. There was no mention whatsoever of Gillibrand's role. In fact, the names "Gillibrand" and "Rutnik" are not found anywhere in Judge Kessler's 1700-page opinion.

So if not a mention is made in the opinion of Kirsten Gillibrand, then how can Judge Kessler's opinion possibly be used to skewer Gillibrand's character and accuse her of professional misconduct?

2. "Kirsten Gillibrand had a choice. As noted by the New York Times, "many lawyers, including some who now serve in the Senate, have defended unpopular clients. Still, in an approach that was not uncommon at law firms that represented tobacco companies, lawyers at [Gillibrand's law firm] were permitted to decline work on the tobacco cases if they had a moral or ethical objection to the work."
While it's true that Gillibrand could have declined to represent Philip Morris, the fact that she did represent the unpopular company is not attorney misconduct.

The Rest of the Story

The rest of the story is that the attack on Gillibrand and the accusation that she was guilty of professional misconduct are based on a guilty by association argumentation strategy, rather than based on specific evidence of unprofessional actions that Gillibrand individually took in her work.

I believe that if you are going to publicly skewer someone and accuse them of something so severe as professional misconduct, it needs to be based on convincing, specific evidence of their individual actions, not based on the actions of other people in the same profession.

The same reasoning that is being used to skewer Gillibrand could also be used to skewer the rest of the anti-tobacco lawyers who worked very closely with Dick Scruggs to sue the tobacco companies and obtain huge amounts of money and political prestige from the state tobacco lawsuit settlements. Scruggs was indicted twice on bribery charges and is serving a 7-year sentence in federal prision for trying to bribe two judges.

Just because Scruggs was an unethical criminal guilty of professional misconduct, does that mean that the rest of the anti-tobacco lawyers who worked on the state tobacco lawsuits also were of a similar ethical character?

Guilt by association can be a dangerous tactic and can lead to some very unfortunate consequences. That's why I find this issue very imporant. It's not simply that I find it problematic because insufficient evidence has been provided to support the accusation. It's that the very approach of guilt by association can be a dangerous one. And, furthermore, one might actually consider this guilt by association tactic to itself be questionable, if not frankly unethical.

Before closing, let me make two important points of clarification.

First, I am not in any way defending Senator Gillibrand or claiming that she is not guilty of misconduct. I'm just arguing that insufficient evidence has been presented to warrant such an accusation (and of course we assume innocence unless an individual has been proven guilty). The point is not that I have information which demonstrates that Gillibrand is innocent. The point is, instead, that there simply has not been specific evidence of her individual misconduct that has been presented to warrant such an accusation.

Second, I am not supporting Senator Gillibrand or suggesting that her acceptance of tobacco funding or work as a tobacco lawyer should not be used for political reasons, such as in campaigning against her. This is all fair game for politics. But arguing that her work for the tobacco industry makes her a bad candidate for public office is not the same thing as accusing her of professional misconduct.

Perhaps the guilt by association mentality is best demonstrated by a comment to my earlier post. In response to my noting that we don't know what Gillibrand did or did not instruct the scientists at the laboratory in Germany and therefore cannot accuse her of professional misconduct solely from the fact that she visited the lab four times, a commenter argued: "Was her legal advice beyond the pale? Did she deliberately try to hide evidence by misusing attorney-client or work-product privileges? Is this even knowable? Or are we left to draw conclusions based on what we do know about what PM's attorneys were doing for their client? As the saying goes, if you lie down with dogs, you're going to get up with fleas."

This is classic guilt by association. We don't know for sure whether Gillibrand's advice was beyond the pale or whether she deliberately tried to hide evidence by misusing attorney-client or work-product privileges and this may not even be knowable. However, we won't let that stop us from going ahead and accusing her of professional misconduct. She's working for a disreputable industry; therefore, she herself is guilty of professional misconduct.

Well, we also don't know for sure whether any of Scruggs' colleagues -- anti-tobacco lawyers who sued the industry on behalf of the states -- also engaged in bribery or other illicit or unscrupulous tactics in pursuing their cases. But because they are closely associated with Dickie Scruggs, because they lied down with a dog, have they also gotten up with fleas?

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