The Washington Post
January 9, 1998
Sellout To Big Tobacco
by Joseph A. Califano Jr.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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).
- 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
- 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.
- 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
- 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.
- 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.
- Maybe that's why in our age attorneys Thomas a Becket and Thomas More
are remembered as saints, not as lawyers.
- 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.
This is a page in the section entitled Lawyers
Make Billions at Expense of Sick and Dying Smokers in the Web site
entitled Legal Reform Through Transforming the
Discipline of Law into a Science.