While I was never aware of this opinion in the tobacco control movement before, it has become clear to me that a number of lawyers and others in the tobacco control movement believe that it is morally reprehensible for an attorney to represent a tobacco company. For example, based solely on the fact that she represented Philip Morris, several anti-tobacco lawyers and tobacco control advocates have personally attacked the ethical character of Senator Kirsten Gillibrand.
In this post, I make the case that representing a tobacco company in litigation is not unethical and that putting forward such an argument actually undermines the integrity of the justice system.
The Rest of the Story
Fundamental to the issue of whether representing a tobacco company is unethical is the question of whether or not cigarette companies deserve a defense in litigation against them.
I believe that an essential element of our justice system is the fact that both sides in litigation have the right to be represented by counsel, and that lawyers on both sides make their cases before the judge or jury. A one-sided system, in which only the plaintiff - for example - was entitled to representation, would be fundamentally unfair and would inevitably lead to the miscarriage of justice.
Therefore, I believe that it is imperative to the integrity of the justice system that tobacco companies, no matter how bad we might think their behavior has been, be represented in legal matters in the courtroom. The tobacco companies are entitled to a legal defense.
Now, if one accepts the above premise, then I believe we cannot view it as unethical for a lawyer to represent a tobacco company. If the fact that a tobacco company is represented by counsel in the courtroom is essential to the integrity of the justice system, then how can it possibly be viewed as unethical and morally reprehensible for an attorney to take on that role?
After all, if the tobacco attorney is playing a role that is essential for the integrity and fairness of the justice system, then how can that individual be considered inherently unethical for accepting that role?
Now this doesn't mean that all tobacco lawyers have acted in an ethical manner. There is a history of misconduct by tobacco lawyers who have acted unethically in doing things like helping to create a fraudulent conspiracy between the tobacco companies, hiding evidence of fraudulent behavior, etc. However, what makes those lawyers unethical is the specific unethical actions they have taken, not the mere fact that they stood in representation of a tobacco company.
By the reasoning of those who argue that representing a tobacco company is inherently unethical, the most appropriate result would be that tobacco companies would not be represented in court. It would be a one-way proceeding, with only the plaintiff being heard.
Now I hope that readers can see why I find the anti-tobacco lawyers' and advocates' argument so problematic. The argument serves to undermine the integrity of the justice system because it essentially calls for a one-sided process, where tobacco companies would not be able to defend themselves and plaintiffs would have their way, no matter how appropriate or inappropriate the plaintiffs' arguments, claims, and requests.
To see one reason why it is so important for both sides to have representation, even if one side is a corporation that people may view as being evil, look at yesterday's Wall Street Journal article about the fabrication of cases against U.S. Silica.
According to the article: "In 2003 alone ... U.S. Silica was served with nearly 20,000 lawsuits claiming it had caused silicosis -- a serious, if rare, lung disease. The tort bar saw silica as the "new asbestos," says Mr. Ulizio, and he had visions of his century-old concern going bankrupt, along with dozens of others. Instead what ensued was a legal thriller, in which the defendants not only beat the suits, but exposed a mob of lawyers and doctors who were fabricating cases, and who are now under investigation. ... In June of 2005, Texas federal Judge Janice Graham Jack -- who was overseeing 9,000 silicosis lawsuits aggregated in her court -- issued an opinion that shook the tort bar to its core. During depositions, the handful of doctors who provided nearly all these diagnoses began to crack, admitting they'd never seen patients, that their secretaries had filled out forms, and that lawyers had told them what to write. It came out that two-thirds of those claiming to have silicosis had previously claimed to asbestosis -- a near medical impossibility. Judge Jack's 249-page scathing opinion unraveled a scam of giant proportions. She accused the doctors and lawyers of "diagnoses that were manufactured for money," provided evidence of fraud, required a Houston plaintiff's firm to pay defense legal costs, and issued sanctions. Within a few months, Congress and a federal grand jury were investigating."
While we might abhor the conduct of tobacco companies and other corporations, the actions of many plaintiff's attorneys have been morally reprehensible as well. It certainly does not follow that only the plaintiff's in tobacco cases should be represented in court, and that such an outcome would lead to the best chances for justice to be served.
We need to have both sides represented to preserve the integrity of the justice system, and therefore, it is not possible to view the act of representing a tobacco company as being inherently unethical.
This commentary comes from someone who has fought tobacco lawyers in the courtroom many times. In my experience, I always viewed the tobacco attorneys as doing their job and doing it extremely well. I also must say that many of the issues dealt with in the courtroom are not black and white. There are shades of grey, and there is a need for representation of alternative points of view.
For example, while I have vigorously argued that certain smokers should be compensated by tobacco companies for damages incurred from using their products, I concede that the issue of whether or not a smoker should be viewed as responsible for the results of his or her own decisions and actions is a difficult one. Different juries have seen the issue in different ways. Some have agreed with me that smokers who became addicted to cigarettes prior to the 1960s (and the warning labels and other publicity about the health effects of smoking) did not make informed, adult decisions and so should not be held responsible. Other juries have ruled differently. It certainly seems appropriate to have both sides present their cases and let the jury decide. I cannot see how it would be inherently unethical for a lawyer representing the tobacco companies to make the case that people should be held accountable for their own decisions and actions in life, no matter how much I might disagree with that position in the case of smokers who began smoking prior to the warning labels.
Another example is the need to follow the precepts of law. While it might be nice for the plaintiff to be able to argue that the cigarette companies should have warned their consumers of the health effects of tobacco products, the law simply does not allow them to make this argument after 1970, when federal preemption of such claims was enacted into law. It was the intention of Congress to preempt such claims and the cigarette company lawyers are acting in accordance with the law when they prevent such testimony in the courtroom. That kind of defense is not unethical. It is actually quite appropriate.
Perhaps the best example of the need for a check on anti-tobacco lawyers is the Department of Justice lawsuit, where the plaintiff asked the Court for huge monetary remedies that are simply not allowable under the RICO statute. According to a Reuters news article, Judge Sentelle (an appellate court judge) admonished the anti-smoking groups for even bringing forward the argument that the panel should allow monetary remedies.
In conclusion, while it may put me in disagreement with the overwhelming majority of my colleagues in tobacco control, I stand by my position that representation of the tobacco companies is an essential part of the justice system and that it is therefore improper and inappropriate to view a lawyer who represents a tobacco company as being unethical.
Once again, I therefore view the personal attacks on the ethical character of Kirsten Gillibrand - which are based solely on her having represented a tobacco company - to be unwarranted, inappropriate, and problematic.