Cigarettes and Reporters and a U.S. Senator

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Cigarettes and Reporters and a U.S. Senator

All successful newspapers are ceaselessly querulous and bellicose. They never defend anyone or anything if they can help it; if the job is forced upon them, they tackle it by denouncing some one or something else.
—H.L. Mencken, Prejudices, First Series

If they don’t get a Pulitzer it won’t be for want of trying. Raymond Hernandez and David Kocieniewski (RADA)of the New York Times did a brilliant job of letting the public see the dark side of Kirsten Rutnik , now known as Senator Kirsten Gillibrand, when she was a baby lawyer in a large law firm. We can only be sad that RADA were unable to complete their journalistic voyage into the early days of her legal career before she ran for any office, much less was appointed to the United States Senate by New York’s Governor David Paterson. If they had been able to do that she would probably still be laboring in a law office assisting those who offend society instead of offending RADA by her presence in the United States Senate.

What RADA discovered (and reported on in a manner worthy of a PhD dissertation) was that Ms. Rutnik represented, zealously, a tobacco company. Not just any tobacco company-Philip Morris, a company recently in the news when the United States Supreme Court refused to consider the company’s appeal of a $150 million punitive damage award won by an Oregon woman against the company.

In the second paragraph of their report RADA set the stage. They report that in 1996 the Justice Department believed tobacco industry officials had lied to it and wanted to obtain company research to prove that. Instead of assisting the prosecution by telling Philip Morris to confess the error of its ways, Kirsten Rutnik, lawyer, represented her client. She took the position that the government was not entitled to the documents it was seeking and helped the company resist the government’s efforts. Although RADA are offended by her diligence they cut her a bit of slack later in the report when they observe that notwithstanding her efforts on behalf of her clients: “there is no indication that Ms. Gillibrand ever discussed the case with . . . the Philip Morris president and chief executive who was among the subjects of the perjury inquiry.” (Since she was a relatively young lawyer that may surprise some less than it surprised RADA.) Lest anyone think that gets her off the hook, however, they add: “But Philip Morris internal records show that the company’s top lawyers entrusted her with several essential elements of the case.”

Ultimately the companies were successful and, according to RADA’s report “beat back the federal perjury investigation, a significant legal victory at the time” but, and here is the bit that gives us insight into the nefarious character of the Senator, “not one Ms. Gillibrand is eager to discuss.”

RADA do not stop there. They observe that Ms. Gillibrand “plays down her work as a lawyer representing Philip Morris, saying she was a junior associate with little control over the cases she was handed and limited involvement in defending the tobacco maker.” RADA have examined thousands of documents and interviewed dozens of lawyers and write that as a result of that work they can see that she was involved in some of the “most sensitive matters related to the defense of the tobacco giant. . . .”

Some might assume that this is a conclusively damning indictment of the Senator since we all know that cigarette companies are per se evil and anyone who tries to block the waiter who is serving them their just desserts is like the client, per se evil. Having said that, however, we have to acknowledge that murderers are entitled to zealous representation even when the murderer’s lawyer knows that the client is guilty. The criminal is entitled to a defense. We are, therefore, relieved to learn that RADA are not insensitive to this professional obligation. They observe that lots of U.S. senators who were once lawyers, defended unpopular clients in the course of their careers. However, and here is where they catch Senator Gillibrand out, RADA were told by one of her former colleagues that lawyers at her law firm “were permitted to decline work on the tobacco cases if they had a moral or ethical objection to the work”. Had the Senator been a decent young lawyer, RADA’s reporting suggests, she would have said to her superiors that she would have nothing to do with a company as scurrilous as Philip Morris. Confident of her ability, she would have been confident that declining to undertake the assigned task would have no effect on her future in the firm.

Pursuing their inquiry further, RADA asked Matt Canter, the Senator’s spokesman, whether the Senator had any misgivings about representing the tobacco companies. He responded, noncommittally, that she “worked for the clients that were assigned to her.”

I’d say RADA gave her the benefit of all possible doubts. Their case is, nonetheless, overwhelming. The Senator is not qualified to hold public office. But for RADA we’d never have known.

Christopher Brauchli

Christopher Brauchli is a columnist and lawyer known nationally for his work. He is a graduate of Harvard University and the University of Colorado School of Law where he served on the Board of Editors of the Rocky Mountain Law Review. He can be emailed at brauchli.56@post.harvard.edu. For political commentary see his web page at http://humanraceandothersports.com

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