Sellout To Big Tobacco

by Joseph A. Califano Jr.
 

1. To understand why the terms "Washington lawyer" and "plaintiffs' lawyer" are becoming the most derisive characterizations of the legal profession, look no further than the conduct of some of these practitioners in Congress and court as Big Tobacco seeks to muscle its sweetheart deal with the state attorneys general into the law of the land.

2. The tobacco companies desperately want to put on the statute books as much as they can of their bargain basement deal with the states, especially the part that provides immunity from liability by blocking future class-action lawsuits for damages due to smoking. To make the sale to Congress, the industry has done its big-bucks damnedest to buy every lawyer willing to say yes to helping it market the arrangement.

3. In my days as a Washington lawyer, I sought and happily took my share of the big bucks that shower the nation's capital during colossal legislative battles, and I know how hard it is to say no. But there's a disturbing "enough, already" aspect to the tobacco situation.

4. The battle is just getting joined on Capitol Hill, and the cigarette companies already have lined up a horde of federal fixers led by two former Senate majority leaders: Democrat George Mitchell and Republican Howard Baker (whom I'd rather see back in the Senate asking his signature question, "What did the nicotine pushers know and when did they know it?"). In the first six months of 1997 alone, Big Tobacco paid its purchased pistols $ 8 million, and it will undoubtedly fork out more than $ 100 million in lobbying fees before this legislative street fight is over.

5. Such conduct is to be expected from the tobacco industry. But what of the lawyers who can't say no to the guys who pushed their drugs on children for decades, distributed free cigarettes to teens on college campuses and targeted minorities and women as new markets -- all the while suppressing research that warned of the addictive and carcinogenic nature of their products. Big Tobacco
   knows that the way to the hearts of Washington and plaintiffs' lawyers is through their pocketbooks.

6. The most sordid piece of money-changing in the temple of the American bar is the side deal, kept secret for months, that plaintiffs' lawyers (allegedly representing the states) crafted with the tobacco companies they sued. Normally, defendants in a class-action suit raise hell about the fees that plaintiffs' lawyers try to charge them. But not Big Tobacco. To get their sweetheart deal, the companies signed on the dotted line, promising plaintiffs' lawyers not to "take any position adverse to the size of the fee award requested." The industry agreed to pay whatever any arbitration panel awarded and not to appeal any award. Big Tobacco even promised not to "express an opinion if asked" about the fees. And there's more: The industry promised to place no limit on total fees they would pay plaintiffs' lawyers. They did get a payment cap of $ 500 million a year (a pittance they can easily pass along to addicted smokers).

7. Now we can understand why the lawyers hired to represent the states sold out their colleagues at the plaintiffs' bar by agreeing to the prohibition against future class actions. With this extraordinary side agreement, it's no wonder the plaintiffs' attorneys shouted "Yes!" to the sweetheart tobacco settlement.

8. This is a deal to make plaintiffs' lawyers in the Exxon Valdez oil spill case (who had to fight the oil company for their fee of only $ 1 billion) writhe in envy. Yet even this cushy fee arrangement is not enough for the Florida attorneys, who insist that the state stand by its contract to provide 25 percent -- almost $ 3 billion -- of that state's recovery for legal fees. As promised, the tobacco companies have been silent as Gov. Lawton Chiles vociferously objects.

9. Big Tobacco knows exactly the kinds of lawyers it wants selling its deal. So Big Tobacco doesn't mind spending even more money on the plaintiffs' lawyers who sued it than on its own Washington lobbyists. That's especially true when the lawyers whose active support they are buying include Richard Scruggs, Senate Majority Leader Trent Lott's brother-in-law, and Hugh Rodham, Hillary Rodham Clinton's brother (though I don't think anyone can temper the first lady's justifiable rage at how the tobacco industry has exploited the nation's children). Both these lawyers jumped at the chance to say yes to the tobacco money coming their way. Scruggs has even served up fellow Mississippian, state Attorney General Michael Moore, to front for the tobacco companies' deal.

10. These Washington and plaintiffs' lawyers for Big Tobacco are just guys who can't say no, especially when large fees are at stake. With their hands deep in the deep pockets of the tobacco pushers, these lawyers tell us that everyone is entitled to an attorney -- no matter how much money he has -- and (privately) that the industry would be much worse if they hadn't said yes to representing it. To these plaintiffs' and Washington attorneys, lawyers who say no are living in another age.

11. Indeed, the most outstanding examples of lawyers who said no as a matter of personal conscience and professional standards did live in another age. When Thomas a Becket said no to King Henry II's request that he lawyer a state takeover of the church, the king had him murdered in Canterbury Cathedral. When Thomas More refused to renounce his Catholic faith, declare the king to be head of the Church in England and legally rationalize the sovereign's divorce, King Henry VIII had him beheaded.

12. Maybe that's why in our age attorneys Thomas a Becket and Thomas More are remembered as saints, not as lawyers.

13. The writer, president of the National Center on Addiction and Substance Abuse at Columbia University, practiced law in Washington and New York. He was secretary of health, education and welfare from 1977 to 1979.