Can Lawyers Be Judged by Their Clients?

Senator Kirsten Gillibrand is getting heat because before she was elected to Congress in 2006, she spend much of her career as a lawyer working at a mega New York law firm representing the world’s largest cigarette company, Philip Morris. She apparently spend a good bit of time between 1995 to 1999 helping Philip Morris fight the Justice Department’s efforts to get the tobacco company to produce damaging research and other internal documents regarding its knowledge about the health risks of tobacco products.

My first reaction is that you shouldn’t judge people for the clients the represent. I defended drug companies during that same period of time and while I’m not proud of this, I’m not ashamed either. I’m sure Martin O’Malley is not ashamed of defending criminals. But Dorothy Samuels has a different take on it in the New York Times that I think deserves airing:

Professor Stephen Gillers of New York University Law School, one of the country’s leading legal ethics experts, draws a distinction between publicly criticizing lawyers because of the people they represent, which he says he would not do, and how they carry out the representation.

He finds the basic strategy that the tobacco companies pursued — pushing the limits of attorney-client privilege to hide inconvenient truths known to top company insiders about smoking and health — morally offensive, even if it violated no law or official legal ethics rules.

Ms. Gillibrand’s work for Philip Morris came during a pivotal period of mounting criticism and intensified legal scrutiny of the tobacco industry.

She tries to play down her role and suggests that she had no choice. In truth, she had plenty of choice.

Her law firm allowed lawyers to decline work on tobacco cases if they had a moral or ethical objection. It wasn’t simply a matter of working “for the clients that were assigned to her,” as an aide explained. Tobacco duty was optional. She opted in. Others did not.

Although not long out of law school, Ms. Gillibrand was given substantial responsibility. She worked closely with company executives. She became steeped in the workings of a lab the cigarette company had located outside the United States in Germany with the express purpose of keeping negative research findings that showed a connection between smoking and cancer out of public view and beyond the reach of American subpoenas.

She was privy to unsuccessful efforts to dissuade a smaller tobacco company, the Liggett Group, from breaking ranks and cooperating with prosecutors — a move, it was feared, that could result in the release of incriminating internal documents and a strengthening of Food and Drug Administration efforts to regulate the marketing and sale of cigarettes, including to children.

Ms. Gillibrand sat with some of the nation’s most prominent tobacco attorneys from different law firms on a special committee whose work included preventing plaintiffs and the government from seeing documents that Philip Morris wanted to remain secret.

Unlike lawyers who represent the indigent in criminal cases or the attorneys who endured mindless charges of disloyalty from the Bush administration for representing detainees at Guantánamo Bay, Cuba, Ms. Gillibrand’s work for Philip Morris served no larger principle of due process. Had she turned down the tobacco assignment, other lawyers were readily available to take her place.

Her law firm allowed lawyers to decline work on tobacco cases if they had a moral or ethical objection. It wasn’t simply a matter of working “for the clients that were assigned to her,” as an aide explained. Tobacco duty was optional. She opted in. Others did not.

I don’t know the correct answer. But I’m always interested in any argument that can really make me question my position on an issue.