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."