Daynard, Richard A.

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DePaul Law Review Volume 51 Issue 2 Winter 2001: Symposium - The Changing Landscape of the Practice, Financing and Ethics of Civil Litigation in the Wake of the Tobacco Wars Article 14 "Hired Guns", Adversaries, or White-Collar Killers: Comment on Professors Green's and Redish's Views of Tobacco Lawyers Richard A. Daynard Follow this and additional works at: https://via.library.depaul.edu/law-review Recommended Citation Richard A. Daynard, "Hired Guns", Adversaries, or White-Collar Killers: Comment on Professors Green's and Redish's Views of Tobacco Lawyers, 51 DePaul L. Rev. 449 (2001) Available at: https://via.library.depaul.edu/law-review/vol51/iss2/14 This Commentaries is brought to you for free and open access by the College of Law at Via Sapientiae. It has been accepted for inclusion in DePaul Law Review by an authorized editor of Via Sapientiae. For more information, please contact digitalservices@depaul.edu. "HIRED GUNS", ADVERSARIES, OR WHITE-COLLARKILLERS: COMMENT ON PROFESSORS GREEN'S ANDREDISH'S VIEWS OF TOBACCO LAWYERSRichard A. Daynard*For very different purposes, both Professor Green' and ProfessorRedish2 assume that the lawyers who worked for American tobaccocompanies in the 1950s, 1960s, and 1970s acted simply as "normal law-yers" in the roles of legal counselor and legal advocate. Thus charac-terized, these lawyers then become test cases for the authors' largertheses. For Professor Green, the issue is the abandonment by theAmerican Bar Association (ABA) and others of the "wise counselor"ethic for corporate lawyers ("telling would-be clients they are damnedfools and should stop"). For Professor Redish, the issue is whethereven despised clients are entitled to zealous advocacy.Professor Green argues that the behavior of lawyers working forthe Brown & Williamson Tobacco Company (B&W), as described inThe Cigarette Papers,3 may come within the outer limits of the "hiredgun" role for corporate lawyers that the ABA has recently espoused. 4He then suggests that this is a reductio ad absurdum (or, at least, anintolerable embarrassment) of the ABA's position.5 Professor Redishtakes a very different tack, constructing an abstract and elaborate de-fense of the position of the adversary in law and politics, and thendefending the lawyers' behavior by assuming hypothetically that it hasnot overstepped the proper bounds of this role.6 I believe that tomake his case, Professor Green underplays the lawyers' misdeeds;whereas Professor Redish's benign hypotheses about the lawyers' be-havior are contradicted by the facts.* Professor of Law, Northeastern University School of Law.1. Bruce A. Green, Thoughts about Corporate Lawyers after Reading The Cigarette Papers:Has the "Wise Counselor" given way to the "Hired Gun"?, 51 DEPAUL L. REV. 407 (2001).2. Martin H. Redish, The Adversary System, Democratic Theory and the Constitutional Role ofSelf-Interest: The Tobacco Wars, 1953-1971, 51 DEPAUL L. REV. 359 (2001).3. STANTON A. GLANTZ ET AL., THE CIGARETrE PAPERS (1996).4. See Laborers in Different Vineyards? The Banking Regulators and the Legal Profession,Report by the ABA Working Group on Lawyers' Representation of Regulated Clients (Discus-sion Draft Jan. 1993).5. Green, supra note 1, at 422.6. Redish, supra note 2.DEPAUL LAW REVIEWProfessor Green begins his analysis of the tobacco lawyers' by stat-ing that "[t]hey assisted their client's efforts to prevent the public dis-semination of unfavorable scientific studies, in part, by adopting anextreme position concerning the law governing the attorney-clientprivilege."'7 I think a fair reading of the documents cited in the rele-vant section of The Cigarette Papers is that the B&W attorneys cre-ated a fraudulent attorney-client and work product cover for scientificresearch by channeling the smoking and health research that was be-ing sent to B&W by its parent company for ordinary business reasonsthrough the law department.8 This was not a matter of aggressive,pushing-the-envelope, legal advocacy, but of outright fraud that cre-ated a fake paper record to protect discoverable documents from dis-covery. Nor do I think Professor Green gets very far with hissuggestion that the fake records are legally innocent because privilegeclaims based on them were not made during the time period coveredby the book.9 The privilege claims were indeed made later 10 and, inany event, equipping your client with bogus documents in order toenable it to complete the fraud at a later time hardly seems excusable.Professor Green goes so far as to suggest that even B&W's ownconduct may not be fraudulent and, perhaps, not even tortious(though terribly immoral).1 But not only has it been found to beboth fraudulent and otherwise tortious by the jury in the Engle classaction case, 12 the entire text of The Cigarette Papers is an elaboratelydocumented story of fraud, fraudulent concealment, failure to warn,and various other torts.' 3 Whether the relationship between moralityand current views of legal ethics is as orthogonal as Professor Greensuggests, the link with morality has not been broken in tort law. Lyingto your customers about the deadly dangers of your product is stilltortious.1 4 And, as The Cigarette Papers demonstrates throughout, theB&W lawyers were actively involved in crafting the company's liesand keeping employees of the company and its affiliates "onmessage."157. Green, supra note 1, at 425.8. GLANTZ, supra note 3.9. Green, supra note 1, at 427.10. See Michael Ciresi et al., Decades of Deceit: Document Discovery in the Minnesota To-bacco Litigation, 25 WM. MIrCHELL L. REV. 477, 509 (1999).11. Green, supra note 1, at 426.12. Engle v. R. J. Reynolds Tobacco Company, t4.3 TPLR 2.101 (1999).13. GLANTZ, supra note 3.14. RESTATEMENT (SECOND) OF TORTS § 526 (1977).15. GLANTZ, supra note 3.[Vol. 51:4492001] "HIRED GUNS" OR WHITE-COLLAR KILLERS 451One argument in Professor Green's article seems inconsistent withhis overall thesis. He claims that "[n]ot only did the tobacco industrylawyers' conduct accord generally with the contemporary conceptionof the corporate lawyer's role, but that conception has become soprevalent that many lawyers today may be unable to contemplate thealternative. ' 16 He illustrates the point with a hypothetical conversa-tion between a tobacco lawyer and a tobacco executive, during whichthe lawyer attempts to give "wise counselor" advice by urging his cli-ent to tell its customers that tobacco is lethal and addictive, and per-haps to get out of the business entirely. 17 He is correct in thinkingthat the advice would probably not be taken very well, but goes so faras to suggest that an attorney giving such advice, much less a clientfollowing it, is simply "unimaginable." 18Besides undermining his thesis that we should go back to the "wisecounselor" model (if it is unimaginable, how can we go back to it?),this argument ignores a real event chronicled in The Cigarette Papers.On July 17, 1963, B&W's Vice President and General Counsel, Addi-son Yeaman, wrote a memorandum in which the most famous line was"We are, then, in the business of selling nicotine, an addictive drug.... ,"19 The purpose of this frankness apparently was to supportYeaman's proposals that the industry should support health warningson cigarette packages and genuinely objective research into smokingand health, and that the companies should compete in developing andmarketing a genuinely safer cigarette. 20 While his suggestions werenot accepted, they were not absurd either. In the "wise counselor"mode, Yeaman was urging his client to take the long view, putting upwith reduced sales and greater liability exposure in the short term, inexchange for reestablishing the industry on a solid, ethical, and, in thelong run, more legally defensible posture.Professor Redish's article, on the other hand, takes me back to mycollege "Introduction to Logic" class, where we studied propositionsof the following form: If the moon is made of green cheese, then oneequals two. Professor Redish drops a footnote at the beginning of hisanalysis stating, "I will confine my analysis to a set of purely hypothet-ical contingencies of conceivable versions of attorney behavior duringthat time period. ' 21 It turns out that under the rules of formal logic, if16. Green, supra note 1, at 427.17. Id. at 427-28.18. Id.19. GLANTZ, supra note 3, at 74.20. GLANTZ, supra note 3, at 52-56, 72-74.21. Redish, supra note 2, at 360 n.1.DEPAUL LAW REVIEWthe assumption is false, then anything at all logically follows ... in-cluding Professor Redish's hypothetical conclusion that the behaviorof the tobacco lawyers (from 1953-1971, roughly the same period cov-ered by The Cigarette Papers) was legally and ethically blameless.In theory, Professor Redish's article is all theory, and, while I do notagree with all his theorizing, I will not discuss it. Unfortunately, I can-not end my Commentary with that observation because when he fi-nally discusses the implications of adversary theory and constitutionaldemocracy for the evaluation of the tobacco lawyers' behavior, Pro-fessor Redish discusses "facts" and does so in a way that I think isseriously misleading. He states thatin their capacity as adversaries acting in anticipation of legal con-flict, industry lawyers could appropriately choose to support onlythose research efforts that they reasonably believed might lead toscientific data or conclusions supporting their client's position onthe potentially outcome-determinative scientific issue. The fact thattobacco lawyers selectively supported research with this self-inter-ested agenda in mind would have been wholly consistent with thetenets of the adversary system, adversary theory, and liberaldemocracy. 22This statement is filled with truisms, but is misleading in context. In-dustry lawyers could indeed properly do this "in their capacity as ad-versaries. '"23 But they could not properly do that in their capacity asmanagers of the tobacco industry's overall research effort on smokingand health issues because (1) companies have a common law obliga-tion to research the actual dangers of the products they sell (and takeappropriate action to protect their customers based on what the objec-tive research shows), and (2).cigarette companies specifically assumedsuch an obligation in their famous "Frank Statement to CigaretteSmokers," published in hundreds of newspapers in January 1954.24There is no doubt that they functioned in the managerial capacity, aswell as in the adversarial one. As one 1978 Lorillard document put it,"We have again 'abdicated' the scientific research directional manage-ment of the Industry to the 'Lawyers' with virtually no involvement onthe part of the scientific or business management side of the busi-ness."'25 This echoes a 1964 report by British tobacco industry repre-sentatives who had visited their counterparts in the United States that"[tihe leadership [of the scientific research enterprise] in the U.S....lies with the powerful policy committee of senior lawyers advising the22. Redish, supra note 2, at 396.23. Id.24. GLANTZ, supra note 3, at 34.25. See Ciresi, supra note 10, at 631.[Vol. 51:4492001] "HIRED GUNS" OR WHITE-COLLAR KILLERS 453industry, and their policy, very understandably, in effect is 'don't takeany chances." 26Professor Redish actually commends as "a form of true legal bril-liance" the way in which the industry purported to fulfill "its obliga-tion under governing tort law to sponsor or conduct reasonableinvestigations concerning the scientific properties of its product. '2 7The notion was that the industry would fund the Council for TobaccoResearch (CTR).2 8 "The industry itself, then, did not choose the re-search to be supported." 29 If the results favored the industry, it couldtrumpet them; if they came out the other way, it could trash them.30The problem is that there are three false assumptions embedded inthe previous paragraph. First, CTR did not "conduct reasonable in-vestigations concerning the scientific properties" of cigarettes.31"CTR was meant to serve primarily a public relations function and...CTR scientific research was of little value in addressing issues relatingto the causal link between smoking and health. '32 In fact, the compa-nies in the industry, in flagrant violation of the anti-trust laws as wellas of their tort law obligations, created a secret "gentlemen's agree-ment" not to conduct in-house biological research. 33 Thus, they mettheir research obligations neither in-house nor through the "brilliant"device of CTR. Second, the industry did choose the research to besupported! For example, potentially "dangerous" proposals to CTRwere vetted by a tobacco industry law firm, with those that might doc-ument serious health problems being diverted from the funding mech-anism.34 Finally, a policy of challenging all adverse results hardlymeets the industry's tort obligation to protect their customers(through disclosure or product modification) where objective researchdemonstrates serious dangers.Professor Redish speaks harshly about lawyers who help perpetratefraud.35 If the tobacco lawyers did that, he would have no problemwith them. "Absent proof of such fraudulent behavior, however, '3626. Id.27. Redish, supra note 2, at 399-400.28. Id. at 400.29. Id. at 399.30. Id. at 400 (noting that, "the industry would remain free to challenge the validity of thoseresults where it deemed it appropriate to do so").31. Id. at 400.32. See Ciresi, supra note 10, at 541 (quoting the Report of the Special Master in the Minne-sota tobacco litigation).33. Id. at 551-53.34. Id. at 563-64.35. Redish, supra note 2, at 402.36. Id. at 402.DEPAUL LAW REVIEWtheir conduct is unobjectionable, perhaps even admirable. The prob-lem is that there is proof of such fraudulent behavior. For example,while he acknowledges the possibilitythat industry lawyers or scientists could seek to modify the contractresearcher's results or methodology in a fraudulent manner by seek-ing to falsely alter findings.... [T]he mere expression of interest inthe correctness of the contract researcher's methods or conclusionsdoes not, in and of itself, violate ethical limitations.37I have followed tobacco litigation for many years, and I have neverheard a scientist complain about an expression of interest in her meth-ods or conclusions by a tobacco industry representative. As JudgeSarokin noted in his opinion during the Cipollone v. Liggett Group,Inc. trial, "At least one scientist testified as to threats made to him ifhe published his findings, and there was other evidence of attempts tosuppress or coerce others. '38Similarly, after a long riff on the right of the tobacco industry tomaintain an unpopular position on scientific issues and on the mod-esty appropriate for a lawyer in subordinating his judgment on suchissues to that of his client, Professor Redish concludes that "wherelawyers have personal knowledge of undisputed facts that contradictthe arguments that they are making on behalf of their client . . . [,]continued attempts to make those arguments do exceed the scope ofthe tenets of adversary theory. ' 39 While I guess it is conceivable thatlawyers of "true legal brilliance" who are charged with managing thetobacco industry's entire smoking and health research effort, mighthave missed the fact-undisputed by any knowledgeable scientist notin the employ of the tobacco industry-that smoking causes cancerand other fatal diseases, in fact, it did not happen that way. B&WGeneral Counsel Addison Yeaman, in the same 1963 memorandumdiscussed earlier, concluded, "At the best, the probabilities are thatsome combination of constituents of smoke will be found conducive tothe onset of cancer or to create an environment in which cancer ismore like to occur."'40 Indeed, a memorandum prepared in the 1980sby R.J. Reynolds Tobacco Company's (RJR) outside counsel dates theknowledge of RJR's General Counsel Henry Ramm, ten years earlier:"In approximately 1953, Dr. Claude Teague reviewed the smoking andhealth literature and was surprised by the volume of material which'indicted' cigarette smoking .... According to Dr. Teague, the Law37. Id.38. 683 F. Supp. 1487, 1491 (D. N.J. 1988).39. Redish, supra note 2, at 405.40. GLANTZ, supra note 3, at 53.[Vol. 51:4492001] "HIRED GUNS" OR WHITE-COLLAR KILLERS 455Department advised that this report should not be circulated ... [h]eadvised that the report be collected and destroyed."'41Professor Redish concludes with a passionate plea not "to exemptthe tobacco industry from the process-based protections of the Consti-tution on the grounds of its moral reprehensibility .... "42 1 would addmy own plea not to exempt the tobacco industry or its lawyers fromaccountability in tort to their victims on the slippery grounds ad-vanced by Professor Redish.41. Ciresi, supra note 10, at 559.42. Redish, supra note 2, at 406.DEPAUL LAW REVIEW [Vol. 51:449

Hired Guns , Adversaries, or White-Collar Killers: Comment on Professors Green\u27s and Redish\u27s Views of Tobacco Lawyers

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Hired Guns , Adversaries, or White-Collar Killers: Comment on Professors Green\u27s and Redish\u27s Views of Tobacco Lawyers

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