Judge Gladys Kessler’s scorn for the tobacco industry was evident in her 1,742-page opinion last week, which found that nine cigarette manufacturers and two trade groups had conspired to hide the truth about smoking’s adverse health consequences for more than 50 years.
Her wrath, though, was directed not only at company executives at the forefront of the multibillion-dollar tobacco industry but also at the lawyers she said aided the decades-long project to illegally shade the industry from scrutiny.
“At every stage, lawyers played an absolutely central role in the creation and perpetuation of the Enterprise and the implementation of its fraudulent schemes,” the D.C. federal judge wrote. She pointed to how both in-house counsel and outside law firms “devised” and “coordinated” strategy, directed scientists’ research in favor of the industry, destroyed documents and “took shelter behind baseless assertions of attorney client privilege.”
Although the majority of the incidents of lawyers’ malfeasance took place decades ago, some of the wrongdoing appeared to continue into the most recent case, which was brought by the Justice Department in 1999. As recently as 2004, Kessler disqualified Neil Koslowe of Shearman & Sterling from representing British American Tobacco Services because he had been involved in the government’s case as a lawyer for the Justice Department.
While the tobacco industry will have to funnel millions into reworking its marketing schemes, lawyers may find themselves under further scrutiny if people injured by the companies decide to file suit. “Any time you see such a strongly worded opinion, that tends to capture the attention of the plaintiffs bar,” says Kevin Rosen, head of the legal malpractice group at Gibson, Dunn & Crutcher. But, Rosen added, in the same way that some law firms were immediately dismissed from liability in the Enron litigation while others faced steep penalties, the outcome of any subsequent suits could vary widely.
Numerous lawyers and firms aided the tobacco industry over the years, but Kessler’s opinion highlighted three firms in particular: Covington & Burling; Jacob, Medinger & Finnegan; and Shook, Hardy & Bacon.
One of the law firms’ key roles was running the Tobacco Institute, a trade association that sought to cast doubt on the scientific relationship between smoking and disease. Shook Hardy and “particularly Covington & Burling became the guiding strategist for the Enterprise and were deeply involved in implementation of those strategies once adopted,” Kessler wrote. Covington, led by partner John Rupp (now the managing partner of the firm’s London office), reviewed agenda proposals before they were sent to the institute’s member companies, and Covington “cleared press releases issued by the Tobacco Institute,” Kessler wrote.
Kessler specifically noted the misconduct of Robert Northrip of Shook Hardy, who would “normally bill either three or four tobacco companies” for his time at one meeting for the institute.
Both firms denied any wrongdoing. “We believe that our firm acted appropriately and played a legitimate role as advocates for our clients,” Covington said in a statement.
John Murphy, chairman of Shook Hardy, declined to give any specific comment on Kessler’s ruling but said his firm “represents each and every one of our clients in an ethical manner.”
Attorneys also played a key role in the Council for Tobacco Research, where they pushed funding for projects hoping “to obtain and develop witnesses favorable to Defendants for testimony before Congress and other regulatory bodies, for use in litigation and for support of industry public statements,” wrote Kessler.
In the 1960s this effort included input from major firms, including Chadbourne & Parke; White & Case; Davis, Polk & Wardell; and Shook Hardy.
Lawyers also were involved in suppressing scientific research and destroying documents that were adverse to the companies’ public and litigation positions.
In 1983, for instance, R.J. Reynolds decided to “remove Council for Tobacco Research and related smoking and health materials from our premises for legal reason,” Kessler quoted from a company document. The materials were sent to Jacob Medinger. Similarly, in 1985, British American Tobacco Co. sent “contentious” research reports to Robert Maddox, an attorney in Louisville, Ky.
In short, Kessler saw the lawyers’ involvement as “a sad and disquieting chapter in the history of an honorable and often courageous profession.”