Two decades ago, when Big Tobacco still seemed invincible, a top Brown & Williamson attorney named Ernest Pepples laid out in stark terms what might be called the honesty option: "If we admit that smoking is harmful to heavy smokers, do we not admit that [the company] has killed a lot of people each year for a very long time? Moreover, if the evidence we have today is not significantly different from the evidence we had five years ago, might it not be argued that we have been 'willfully' killing our customers for this long period? Aside from the catastrophic civil damage and governmental regulation which would flow from such an admission, I foresee serious criminal liability problems."
The better course, counseled the lawyers (or most of them), was to keep creating false doubts about the health dangers and addictiveness of smoking, keep scripting deceptive quarter-truths to deflect inquiries, keep using the attorney-client privilege to hide evidence, keep suppressing inconvenient research, keep manipulating science, people, and language to hide the truth. And the body count mounted.
How can lawyers who do such things live with themselves? Dr. David Kessler, a former commissioner of the Food and Drug Administration, lingers on this question in A Question of Intent, his account of his battle against Big Tobacco. Kessler's answer: "By telling themselves that they are following the rules of professional conduct, they are able to remain untroubled by conscience."
Now dean of Yale Medical School, Kessler is hardly the first critic to wonder why "the legal profession could sanction the moral equivalent of lies," why our legal culture encourages lawyers to "say anything, no matter how misleading, as long as their assertions [are] couched in half-truths," and why lawyers are allowed to coach clients on the safest ways to deceive courts, Congress, and the public. But the windows that Kessler opens into the vast tobacco cover-up conspiracy of the past half-century are telling additions to the literature documenting how our adversary system of justice, theoretically designed to root out the truth, so often operates as an engine of concealment and distortion:
Almost 50 years ago, recalled retired R. J. Reynolds research director Frank Colby in an interview with Kessler, the company's longtime general counsel (Henry Ramm) took Colby into a vault housing the research and development library's laboratory notebooks and ordered him to destroy documents that shed light on a chemical carcinogen called benzopyrene. This would prevent such evidence from falling into the hands of families suing over lung cancer deaths.
Starting in 1964, a Committee of Counsel, consisting of the tobacco companies' top-in-house lawyers and assisted by outside law firms, took control of efforts to find ostensibly independent scientists and physicians to conduct research and testify in Congress and the courts. This was an effort to abuse the protection of the attorney-client privilege, a federal judge later concluded. Eventually, the lawyers came to control even what the company CEOs knew and heard.
In a 1970 letter to Brown & Williamson's general counsel about litigation risks, David R. Hardy, of Kansas City, Mo.-based Shook, Hardy & Bacon, referred to comments seeming "to demonstrate a belief on the part of company personnel that cigarette smoking has been established as a general health hazard or cause of some particular disease or diseases." Such blabbing, the lawyer warned, could be "fatal to the defense."
In a 1983 memo, a Shook, Hardy lawyer working for Philip Morris advised that "the performing and publishing of nicotine-related research clearly seems ill-advised from a litigation point of view." Soon thereafter, the company ordered two of its researchers to suppress a study showing that lab rats had developed such a craving for nicotine that they would sacrifice food and water to satisfy it, closed the researchers' lab, and fired them. This ended an effort to develop a safer cigarette by engineering a nicotine substitute that would do less damage to the heart while having the same effect on the brain.
In 1992, a recent law school graduate working at the prestigious Wall Street firm of Wachtell, Lipton, Rosen & Katz became concerned about a plan by a tobacco client (Lorillard Tobacco Co.) to finance a pathologist's research through the Shook, Hardy firm to "keep him happy." The research was of no immediate value to the company, but the pathologist could be useful as a friendly witness in future legal proceedings. Might this be seen, the young lawyer worried in a memo to more-senior colleagues, as an effort "to purchase favorable judicial or legislative testimony, thereby perpetuating a fraud on the public?" The response is unknown. When Kessler came across the memo years later while leafing through thousands of Big Tobacco documents, he felt that he was "reading a story of innocence lost."
Such tales should be required reading for law students. Kessler, who has a law degree, concludes that the tobacco lawyers "were co-conspirators." But none of them appears to have engaged in any provable crime, or in professional misconduct, or even in conduct that most other lawyers would shun. The explanation is that it is neither a crime nor a violation of the rules of legal ethics for a lawyer to deceive a judge, a jury, Congress, or the public, or to coach a client or a witness to practice such deception, so long as the misleading statements can somehow be rationalized as literally true.
That's why each of six carefully coached tobacco CEOs was able to swear in succession during an April 14, 1994, congressional hearing: "I believe that nicotine is not addictive." A seventh CEO, Jim Johnston of RJR, was a bit more cautious: "Cigarette and nicotine clearly do not meet the classic definitions of addiction. There is no intoxication." In other words, as Bill Clinton might say, it depends on what the meaning of the word addiction is. Counsel had obviously advised the CEOs that they would be protected from any perjury charge by the strained rationale that only intoxicating substances could be addictive.
Of course, corporate lawyers have hardly been alone in helping Big Tobacco and other malefactors of great wealth engage in deception for profit. Nor have trial lawyers been alone in helping unscrupulous plaintiffs bring extortionate lawsuits. Scientists, physicians, accountants, bankers, and other professionals have all done the same, as expert witnesses and, sometimes, accomplices. What's unique about the legal profession is that lawyers have enshrined in their own codes of professional ethics, and in the attorney-client privilege, rationales for helping clients conceal, distort, obfuscate, and misrepresent important facts. Lawyers can tell themselves that facilitating cover-ups is in the finest tradition of their profession, and of the adversary system.
This is not to criticize every lawyer who ever represented a tobacco company. Many of the companies' current attorneys are crafting reasonable arguments about what legal conclusions and consequences should follow from already established facts—for example, the sorts of restrictions that can constitutionally be imposed on cigarette advertising to protect children. That's how the adversary system should work, with a neutral judge or jury making a decision after hearing advocates for both sides. But the powerful incentives for lawyers to win have largely crowded out their obligations to deal honestly with facts and evidence, as officers of the court.
The social costs of licensing lawyers to distort and conceal are especially great when they represent large and powerful organizations with the capacity to cause disease, death, or disinformation. So while Congress considers tort reforms sought by business to keep extortionate plaintiffs and their attorneys from abusing the legal system, it should also consider cover-up reforms to keep businesses and their attorneys from doing the same.
The hearings could explore questions such as these: Did the law take a wrong turn when courts extended the full protections of the attorney-client privilege—originally developed to shield individuals' consultations with their lawyers—to corporations, which have often used the privilege to conceal their most questionable activities? Do the benefits of encouraging more candid consultations between companies and their attorneys justify the cost of facilitating cover-ups? And should we move closer to the ethical norm suggested to Kessler by Yale law professor John Langbein: "Zealous advocacy should be limited by a duty to the truth. In every lawsuit, in every contact with authority, a lawyer should have a positive obligation not to be knowingly misleading"?
Radical? Yes. Any erosion of lawyers' obligations to their clients could have damaging, unintended consequences. So cover-up reform should not be undertaken lightly, and probably should not apply in criminal cases, in which the need for zealous representation is at its zenith. But Congress should at least invite the profession's pooh-bahs to explain why lawyers should remain free to hide evidence of corporate wrongdoing, mislead courts, and mangle the truth.