Tobacco Documents Online

Paul, Weiss, Rifkin. Wharton & Garrison 345 Park Avenue New York, New York 10022 Source: Lions in th~Stree Paul Hof fman 1973 Clients: Brown Wi[liamson Tobacco Co. Young & Ruble,am .International, Inc. Randolph E. Paul was head of the firm in Washington. Simon H. Rikind is" called the "one man show" of the firm. Paul, who died in 1956, w~s a former general counsel to the Treasury. Rifkin, in 1941 was named a federal district judge by President Ro'os'evelt, He stepped down in 1950. He headed President Kennedy's railroad arbitrationpanel, represented Mrs. Kennedy in her suit to prevent publication of Williamii~Mi~chester's Death of a President. .~!:~:??~::~. Partners from the Chicago office, which is no longer:.~i~:e'xistence, wer~;~:~i: following: Adlai Stevenson, U.N.; Willard Wirtz, Labor Department; Newton Minow, chairman of the F.C.C. ; and William McCormick Blair, a.%bassador to Denmark. After Paul's death and Stevenson's departure, what was left of the Washington office was merged into the Washington firm of Arnold, Fortes and Porter. Political stars in the firm now: Theodore C. Scrensen. Arthur J. Goldherg, joined the f£rm in 1967 and left in 1971 Elizabeth Holtzman Congresswoman (D-.,oY.) Rams ey Clark• Marshall, Bratter, Greene, Allison & Tucker 430 Park Avenue New York, 10022 (212/421-7200) Client: LKP Int.ernation~l Ltd, This firm is mushrooming -- went from 12 to 95 lawyers in a dozen yeers. :Handles important cases, but has no political figures. Chndbourne, Parke. L~hiteside & Wolff 30 Rockefeller Plaza New York, 10020 (212/541-5800) Client: American B ra.,...~. This is an old New York firm whose chief client is American Brands (formerly American Tobacco Company). The firm got mixed up in a scandal (the ~nton scandai), and a name partner, Louis Levy, was disbarred as a result. Levy had acted es • middleman in securing a $250,000 loan -- never repaid -- for Manton ~h!lelAmeri~an Tobacco had a $6 million stockholders' suit pending before the judge. -

~Lawyer Howard Abrahams .Eugene R. Anderson Harvey J. Baker Philip Barash Linda Elizabeth Buck L£nda Elizabeth Buck Jeffrey A. Burr Jerome I. Chapman John M. Delehanty Joseph Ducoeur Herbert Dym Timothy M. Finnegan :--.-~.--Law Firm Anderson, Russell, Kile & Quick, P.C. Paul, Weiss, Rifkind, Wharton & Garrison Steingarten & Barash Patton, Boggs & Blow Patton., Boggs & Blow Arnold & Porter Arnold & Porter Paul, Weiss, Rifkind, Wharton & Garrison Kirkland & Ellis Covington & Burling Jacob & Medinser ~:~ !i page -ii. J. Walter Thompson Co. American Brands,• Inc. ii Brown Williamson T0bacco Co. 1600 West Hill Street Louisville, Ky.:.::~0201 SSC&B, Inc. " Batten, Ba~tjn, liDurstlne & Osborn ii!iiiiiiii~ .!?~383 Madison Avenue i::New York, 10017 Liggett & Myers Tobacco Co., Inc. 4100 Roxboro Road .. Durham, N.C. 27702 Philip Morris, Inc, i00 Park Avenue New York 10017 Same as above BrOwn Willimmson Tobacco Co. • 'Leo Burnett Co., Inc. Tobacco Institute, Inc. Tobacco Research Scuar~ A. Friedel David Gros sberg Kenneth V. Handal Abe Krash Peter R. Kilyer Davis & Gilbert Davis & Gilbert Davis & Gilbert Cohen, Grossberg & Zinkin Arnold & Porter Arnold & Porter Katz, Leavy, Rosensweig & Sind!e Chadbourne, Parke, Whiteside & Wolff Needham, Harper & Steers, Inc. Wells, Rich,. Green, Inc. William Esty Co., inc. Philip MorriS, Inc~ Philip Morris, Inc. " Cunningham & Walsh, Inc' American Brands, Inc.

,,Law~e r John F. Kovin Edwin J. Jacob Bertrand M. Lanchner Lawrence G. Meyer Lawrence G. Meyer Francis J. Nooney, Jr. Harold D. Murry, Jr. Richard. A. Mescon John B. Moser 875 North Michigan Avenue Suite 3653 Chicago, Ill., 60611 (312/266-8140) Charles K. O'Neill Daniel J. O'Neill ~ : .... ._~ Law Firm Cllfford, "~arnke, Glass, McIlwain & Finney Jacob & Medinger patton, Boggs & Blow Patton, Boggs & Blow Chadbourne, Parke, Whiteside & Wolff R.J. Reynolds Tobacco Co. 401 N. Main Street Winston-Salem, iN. G. Tobacco Research -USA N.W. Ayer ABH International Batten, Barton, Curstine & Osborn ...... 383 Madison Avenue.. & Meyers Dancer Fitzgerald ~ample Inc. Marshall, Bratter, Greene, Allison & Tucker LKP International Ltd. Clifford, Warnke, et al • R. J. Reynolds Paul, Weiss, Rifl:ind, e~ al :.Young & Rubicam • " P0St-Keyes-Gardner, inc. American Brands, :Inco Leonard Orkin Sidney S, Rosdeitcher Davis & Gilbert • Grey Advertisi.~g, Inc. Davis & Gilbert ' F. iWilliam F~_ae & Co., Inc. Paul, Weiss, Rifkir~d, ct al,.. YounZ & R~bic~m International, Inc~ Stanley A. Rothstein Irving Scher Paul C, Wnrnke Weil, Gotshal & Manges Kenyon & Echardt, Inc. Well, Got-~hal & h'anges same as above Clifford, Warnke, Glass, et al R.J. Re)~.olds Tobacc6 Elroy Wolff G. Paul Moates 1730 Pennsylvania Avenue, NW Washington, D.C. 20006 Foote, Cone, and Belding o

An excerpt from: The Super law~, hr~! Joseph C. Goulden- 1972 "The cigarette case. A political fight that shows the Washington Lawyer at his tactical best -- and his social worst. Manuever the fight into a friendly forum, and warn a~ay friends who don't want to get showered wiTh unsightlyl blood, and bring in as many allies as you can. If it is politic to yield on a m:ind:r point or two, dictate the terms of your "surrender" so that it can be phi~to advantage. • The cigarette ease began in early 196~ when the Public HealthlServlce issued its famed report on the causal connection between smoking and.bad health. The Federal Trade Commission, with uncharacteristic boldness proposed rules requiring that tobacco companies put health warnings both on cigarette packages and in advertising. The tobacco industry mobilized .ihnd~~::~ililormer Senato~ EErie Clements, a Kentucky Democrat who runs the Tobacco Ins=~tu:~e, the lobby!~g~0up. Washington Lawyers for the big tobacco companies formed aid.tight ¢oalition..::~o help him; prominent in its direction was Abe Fortes, who worked for Philip Morris. BuT to avoid embarrassing President Johnson, ForTas~stayed in the shadows; Paul Porter made whatever public appearances were necessary, ~iFortas's strategy had three parts: I. Get the issue away from the FTC and into Congress, where the industry has more influence. (Oren Harris (D-Ark) then C~airman of the House Interstate and Foreign.iCo~zerce Com:nittee, accommodated Fortes by writing Rand DiXon, the FTC chairman, and ordering him to tske nO action Until Congress had a chance to ~eonsider legislation' on the health warning issue, Dixon backed away in a hurry. 2. Placate the Dub!it with a 'self-regulation code.' Arnold, Fortas and Porter wrote one for the industr~iiiand presented it to Congress with great self-congratulatory fleurishes~ Robert B. Meyner, the former New Jersey =oovernor, si=o.ned on as ~code administrator,' thereby giving authority To regulation. ' :- 3. Accept a weak-wo~ded health warning on~peck~F~es. People won't read it anyway, and it could help in defending ....... actions brought by survivors of persons killed bycio=are=tes. • . .... ........ • In return for this 'concession' refuse to give up especially TV stuff aimed at the kids ~.ho are tomorrow's ~ark~t.. The Fortes campaign worked. His firm's lawyers helped ~riZe testim0~y, and they- marched witnesses through the hearings, and they stayed close ~round executlve'~: sessions to make sure dissidents didn't t~per with the script. The one concession, insisted upon by Senator Maurine Neube~-ger (whose husband had died Sf'~:~g c~r), was that the ban against the FTC acting in the area last only for four years, DOt permanently as the cigarette manufacturers wanted." i. :

....... .... '.. An Excerpt from: The Other Government ~ ~- Mark J. Green -1:111975 Summary of Chapter 7, "The Law of Smoke" In the ten years since the pronouncement of the prestigious t~:~person panel in 1964 that "Cigarette smoking is a health hazard of sufficient ~p0rtance in the United States to warrant appropriate remedial action," no medical or scientific group in the world has disputed this conclusion.* The surg:~on general and the American Cancer S~ciety have both warned smokers that there are:::::three hundred thousand cigare=te-related deaths per year. The death rate for lung cancer is fifteen to thirty times greater for smokers than for nonsmokers,-for oral cancer four times greater, and for chronic bronchitis and emphysema seven tim~#higher. study showed that low exposures to carbon-monoxide :!:.~ofi:ce~trations -- o~ the kind given off by cigarettes -- can result in poorer per~:~rman:ce on psychom~or;~:tests, impaired visual discrimination, and physiologic sireis in heart-disease patients. Also, in another tes= 70"~ of nonsmokers, when exposed ~o cigarette smoke, experienced eye irriEation " 'qqo one has ever convinced me hhat smoki~ is a hazard," says H~Thomas Austern, who chain-smokes Chesterfields. He is a oartner .in Covington &:Burling. In 1958 the mz~jor manufacturers -- such as L~gg~tt :and Myers, :Philip Morris, P. Lorillard, R. J. Reynolds -- created th~i~TOba¢~o IDstitute, a l'obbying public-relations group ~ith an undisclosed budge=. ~.~.'0n ~he power chart of the pressure lobbies," colum~nist Marquis Childs wrote of:~hiS organization, "The Tobacco Institute rates not far behind the gun iobby,:whlch is the untouchable top." The political emphasis of its operations emerges from:the peoole chosen t0::head i~. from 1958 to 1962, George V. Allen, former director 0f the United States.~Infc~.~tion Agency; from 1966 to 1970, Earl Clements a former i~i~~ky senator Johnson ally; and from 1970 to the present, former Northi~arolinalc0h:gre~S~a~ Horace Kornezay. "~ha Institute's major mission is £o rebut cri~icis~._s of =he tobacco industry and ~o avoid bothersome regulation, This ehey were ~!5le to do "The surgeon ~:neral's re~ort led to a to require heal,~h warnings on all cigarette packnges and in ciearct~e ~iSe~:~:ihg -- a requiremenn hardly compatible with their promotional theme of roman~:ic :fzo~ic~ So, as an immediate response to the FTC move, the Tobacco Institute Fortes of Arnold, Fortes & Porter and Covington & Burling's H. Thomas AUStern~~' "Austern and the Tobacco Institute argued that the FTC lathed authori~ to issue such a rule. Austern m~de his case an she FfC's 1964 hearings, citing:: statutory language and legislative history. But the cormnissioners, also: became irritated by arguments they came to regard as con=rived." * Not quite true. Tobacco Institute has fielded several physicians .and ........ ........ researchers who deny action is warranted by scientific data ::

"As it turaed"but,-.~u~rn's effort proved only a dlverslona~:~:i:i:::~asureo The issue was ultimately fought out~nd_resolved in Congress. Because thei-House Interstate and Foreign Co~erce Cow,tree was stacked wi=h s~pathe~i= ~:~outhern- tobacco legislators, Congress was a far more hospitable place to the industry than the ~C." For~as and Senator Clements ~naged indu~try's case --5o~h ~ving a mentor in the White House (Johnson for Fortas and Clemen=s" daughter ~as:Lady B~rd Johnson's social secretary). : .:~ ~he congressional outcome was an unusual rebuke to the ~C. ~he Cigarette Lobb~ing and Advertising Act -- signed by President Johnson on.July 13, 1965 -- pre-empted the authority of the co~ission. The bill prohibite~.~ny federal or state agency from further regula=ing the tobacco industry fo~ four years ~nd it required only ~ ~id warning on ~he cigarette package, bu~ no~e ~n ~dver~is~ng. ~he warning which, "by info~ing ~he smoker of the risk, also helped abs~ive c~garette fi~s in product-liability suits." As one reporter wrote, "T~e:. bill not, as it~ sponso=s suggested, an example of =ongr~.~:~:~! initiative public ~ealth, it is an unashamed act to protect pr~.va~:~ ~dus~ry from r e g u la t i o n." ~:~.::.~.~:::~:.~.::(~::..:~# :.:::~ .:~ .: "First to c~llenge t~ tobaccomen was the~::F.ederal Co~un~cations In response to a petition filed by John Ba.n~:~f:bn June 2, 1967, :"the FCC ruled 6-0 that cigarette co~ereial~ came ~.~thin the.~scope of the ~pA> Fairness Doctrine. Television s~mtions ~herefore h~d to dona~:.~o~ghly approxir~~d time for reply ~o anSi-smoking groups such as the ~erican Cancer Society."-..... The cigarette and netwo[k firms fought thi~ ruling. :By the time the case got to court industry had gathered ~he big politi6ai!a~ers from Covington & Burling and Arnold & Porter, and Lloyd Cu~ler. Covington & Burling on =he behalf of the Tobacco Institute filed a petition for a rehear~ng. The FCG rejected. • This decision triggered an unusual chain 0f:-:e~e~:£s. Although C &~:B represented the tobacco people, Arnold & Porter were:.~la~6~s for the ~Nat.i~n~! ~ Association of Broadcasters. "The smoking alliance decided that the ~B rather than the Tobacco Insti=ute should appeal the FCC ru!in~; mad C & B.~S !~ers were simply considered bet5er technical la~D'ers. $han:.::~.:~:~ & Porter's.i' $o they traded: ~ acquired Covington & Bur!inZ and the TeSaC~ ~n~titu~c ~ot Arnold & Porter. .~...~ ....~:~:~ The FCG announced its decision on September 8, but failed to available any copies of the opinion. John Branzhaf, %,ho ~ndled his o~ case, rushed ~o Washington on a Saturday morning to appeal the FCC decision to.~the Distri~of Col~bia court of appeals. He fo~,ai!y appealed because the gave him "significant tim.e" :%05 ':equal time" to air anti-smoking advertiscr.~£n~s. "He actually appealed becauge the appellant ge~s his choice of circuit courts and the District of Col~pbia circuit was far more liberal than Covington's expected choice, the fourth circuit in Ricl~ond, Virginia, the heart of tobac~co Banzhaf, alone, opposed ten law fi~s. The D.C. circuit allowed Banzhaf and his appeal to stay in i~s jurisdiction. Ultimately, after hearing the legal arguments on the merits of the case, the court upheld the FCC ruling. o

Page -16- Meanwhile,-- the industry's four-year congressional tlme-buy out, and it again had i'd fsce.~he..problems of cigarette advertlsfng and~..~arnlngs. The industry's lobbying was led by~rl_~Clements. "When you ~ve a guy l!~ke Cl~ents, on a first name basis ~t~most senators," said a fo~er C & B "you wouldn't want Austern ~ ~ndle your co~unications on the Hill."~::~ustern the la~er; Clemen=s the lobbyist and publlcis=. "In 1967, two years after the first round of hearings, it was discovered that all doctors and professionals who had publicly criticized the surgeon:.-. general's report had been solicited by t~ Tobacco Institute. Their testimony ~d apparently been typed on the s~me type~iter, and most had been paid large fees by t~ institute. This surprised the Senate Co~erce Co~ittee, Which had ass~ed that t~ professional opinions they had heard were unsullied by ~ny finan- cial ties to business." ~. "At the 1969 hearings, when Tobacco Institute chef,an Josep~ hearing t~t 't~ tobacco industry ~s been for ~ny~ y~a~ and it continues to be profoundly conscious of questions raised =oncern~ng~klng and hea~th,:~' he failed to mention two examples of this consciousnes~~-~:~::"THree years befo:~e institute ~d circulated, ~thout identifying itself.~...one million copies of a ~ru9 magazine pro-smoking article t~t wa~ -~ritten b~~:.a~::~.Sp.ortswrfter and l~=er employee of the instituters public-relation firm. (~ .FTG report describes the incident: "It would se~ to be fair co~ent to say. ~ :the acts of re:~ninlnB a free-lance ~iter specializing in sports artlcles.:~o write an article~dealin3 wi~h ~nedical fac~s; promoting the acceptance of th~.-.arti=ie in True magaz~;.e ~nd then adver=isizfg excerpts therefrom favorable to ~he ci~gare==e i~d-us'try before a newspaper audience ~o read the a~ticle; failing ~ "" : ~ ~o n~sc.ose ~In such adgertising t~t tobacco interests, not ~!ue ~gazine, phoned a~d paid fo=~the advertisinB; posing as True magazine, before the American Medica!AS.So=ia=ion anZ posing as the editors of True, before (eventually over a million r~a~ers) . . . are not the acts of an industry either confident of its fac~s nor~:s01icitous of :i~s reputation." Nor did Culhnan mention how the institute had hired~RoSg~e~ Reeves the Dublic- relations tycoon, to ~ite protobac~o speeches for ~!~:!~g~ doctors znd~:~ pay s~athetic reporters one ~housand dollars a week tO~itel on preseleCted and to publish the results in ~heir o~ journals :~:~: By 1969 it had become obviou3 that the Se~te:.:~erce. Committee (not loaded %ith Southern tobacco in=crests) ~ouid no ...~_. ...... . . . from cigareute reNulatlon. NAB ~r~Do~ed to pn ..... o'~ all~l-~:ao~:!n~: aes by 1973 so that they would no$ lose revenue so fasE. Bu~ t~a.:.:Yoba:hco !n~ti~uU~6 that the anti-smoking conraerciais hurt them more than their o~m ads hel~)ed them, therefore Cul~n proposed to end all broadcast advertising by late~:.19705 Congress then passed a law requiring just ~Y~t. The >L%B president ~'a$ anzry. "!t~s no gre~.t sacrifice on (the tobacco iniustry's) part They ~.~il! save ~aOO ~th the full ~:now!edge that ccns~r.ption of cigarettes vi~.l ~ot decrease.;' Actu~lly, ~he industry didn't save tb2t much; thcy shifted n:zdia. Bet%:een i970 and 1971 they more t~n doubled their newspaper/magazine advertising budget, going from $64.2 million to $157.6 million. The bill also required a:new pac~ge label. o

The FTC w~s ho'ldfng-.i-ts~ own proceedings on the smoking issue wanted a stronger warning than Cong"~z~_ s_e~entually accepted. The commiss!.On referred to the evidence and reasonir~g of the 1967 Public Health Servic~report: "To say smoking 'may be hazar4ous' is to ignore the overwhelming evidence that cigarette smoking is clearly hazardous to health." And it was based on the logic of inherently deceptive advertising .... "Tommy Austern's defense was surprising: since everyone knewismoklng was dangerous, he said, there was no need for health warnings to protect:~the consumer. This argument astonished Commission Philip Elman as he the Tobacco Institute when they found out about it." The next day the NewYork Times quoted the statement that anyone "not deaf and blind" today knows~it's a "~azard and continued: "This was the first time that a tobacco indu~s~y~ispdkes- man had conceded any link between smoking and health." Austern wrote the<~imes a five page letter denouncing the article as "grossly inaccurate . . . ir~spo~sible inaccurate." The letter was aimed more at his cllen£1s :.i!£ha~ at the newsp~~er. The cigarette manufacturers were furious that Austern ha~i a[~mi:.£ted the ur~menti6nable: that smoking is dangerous. Austern petitioned the FTCto allow him to alter his remarks as transcribed a~ '~he hearing. He claimed chat. the FTC reporter incorrectly heard and repom-~ed what he said. Considering:the matter merely one of professional courtesy, the full con~nission allowed A~s£ern to chanBe the ~ran- script. So despite a public bungling unworthy of a first-year law stud6nt he was able to squeeze out of his dilemma. ~ .... i "The commissio.~fs act of clemency notwithsEandinB, Aust.~rn had clearly. tripped in his own verbal tango. His ultimate difficuiDy~,i.~i.ilike~the Tobacco Institute's, ~raced tO the uncompromising denial tha:t smoking actually ~,as dangerous..." "The April i, 1970, Public Health Smoking Act::isgain usurped FTC authority to issue some of its intended regulations, but not alli0f them." The commission wanted cigarette advertising to disclose tar and nicotine content ~nd tb carryan even sterner warning than Congress required on cigare~tei~Cks; namely, '~[a~ning: Cigarette Smoking is Dangerous to Health and May Cause Death from CancelP andother Diseases." Death. Cancer. These were the scare ~o~ds:.~::.:hhe~. industry~ hou!dn't abide. There were extended negotiations between FTC !awyers and AusEer. n.and Hcraze Kornegay "Althoueh they %~ere unwilling to admit ~.~.~i~ ~mbking -~as d:ahg~rDus the industry did ~-:~nt to avoid the Dubl~ci~v. " . of major public~: . . ........ na~.'~_~~ .... " :::iiln 1971 domestic tobacco companies becan ~o d{~c~ose tar ~non_co~mn_ $on.e.~i..Ln advertising. "In October 197~ prln~ed cigare=te adv~:~tlse~ents contain the same warninB t>m= appeared on tLeir packages." Allen Bruninger, the drafter of the FTC tar and nicotine standards and of the advertising reg~alations explained it this way: "The}, were masterful, ge~tin~ delays and naking the best of e\,er}, situation. Only a small percentage of all smokers really care about tar and nicotine; they care about ~aste. And once the warning was on the package, ins appearance on ads didn't matter much. The warning talks about "the Surgeon General had determined," which is wordy and, well, he's just a government bureaucrat and we all know about government bureaucrats• But it doesn't say that smoking causes death and cancer, that it has fatal consequences. ~he industry's gradualistic approach has conditioned the public to weak ads, so no~ I don't think anything will work." (.~ o~

.... ~ i.~Page -18- Not all m4mber.~ ~f ~6~fng~ton & Burllng are pleased to be rep~"~hnting a client with as inherently hazardo~ a~pr6duct as tobacco. One partner .Was heard by a C & B la~er to mu~er, '~ don't see why we have to represent those bastards." - ~: In 1970 a law clerk observed, "At one ~ime or another almost all of the pe~anent law clerks worked on tobacco problems." Their job, under supervision, was to predict and pre-empt potential trouble areas. For example, C &./B~ and the industry were concerned about s~a~e regulation subjecting cigarette ~ufacturing and distribution to the vicissitudes of varying and tough local laws. ~A~team of clerks in 1969 studied the growing nu~er of sta~es proposing to place~:~pecial taxes on the gross receipts of cigarette advertising, At the same tim~ someone else from the fi~ was sending a memorandum to t~ atto~ey general ~f~Colorado Successfully arguing t~t a legislative proposal to chan~e the burden ~f:proof in cigarette-liability ~ses was unconstitutional. Tw.0 firm attorneys we~4.trying to =hange language in t~ "Third Res=ate~ent of Torts'~ ~w~::~was consider~./:~amaging ~o the liability of.cigarette ~nufac~urers. And a s~ew~0f~::~ o~her clerks worked... on a top-priority "massive legal memorandum," prepared :in anticipation:~{~an industry campaign to pre-empt completely state cigarette taxation by a scheme of federal taxation -- a memorand~ whose time ~d no~:yet come. Drew Pearson once accused Covington & Burli~g of trying to discover a way to deprive the American Cancer Society of its sa~:~exemption because o~ zts political activities. Richard Stone, fo~nnerly with ~he ~rm and no~.~ in solicitor general's office, vigorously denied the dh~r#~ Someone h~d nentioned ~t in jest, he said, and a naive associate be~n work on it .......... ~,~o you ~eally think associate did .... Austern ~d two final ga~its. "To A~stern legal rules appear incon- veniences, as he confuses cl~ent success with "In an arena where info~mtien reigns, Au~e~<~earned to annual Public Health Services'~m~kin.. .g data as -~oon:as possible: ~: ..~ ~ --:~haps ~en before its parent department, F~W, did. In the public--opinion arena of charge. and answer, the shorter ~he rebu~a~ ~i~e the better fcr perennia~:~&~:~::-:::: ~: :utt~-~=~= like the Tobacco Institute. Aus~ern sent former C & B ~ ~:l:~k Jim Co~:~ei~o on a _ ~ t~ona_:~.s -~u~u::::~O~ ST~okin~ and Health in ~esda to get~hen-undisclesed govezrm:en~:d~t:~ fr~.m a contact, He then traveleo to ~..o._her zocatzon .n Bean.sea ~o mak,. copros of material before returning £h~ to the PHS contacn9 after this, he wen~ home~ ...... He followed this plan for four days, getting ~terial from a woman The first day a~one he reproduced ~ few hundred page~. ~ut a!tho~gh ment was supposed to last two to three ~.eeks, i= wa& terminated ation after four days." They were "really ~eared of getting eaugh~~'~ the clerk said. ........... "Second, there is the computer. For the data-lorn such a~ A~stern a computer progra~ed ~th everything ever ~itten on the subject of smoking and~ health was loBieal and, in retrospect, inevitable. Under the aegi~ of Austern and partner John Denniston (who can'~ stand anyone smoking in his presence) ..... Covington & Burling since 1967 has operated suzh a supercomputer, ~ysteriously

referred to in firm ~emo n-d~-a~-"+~he 3~." Its purpose is to provide a near instantaneous reply to any public st~'tem~nt-critical of their client's in~:.~rest. But Austern also treats it as his =o~. He will occasionally show it of~:::~::to special visitors who are asked to rai-se a topical tobacco issue, and who then receive in response a rapid printout." '~4hy is this nonlegal entity operated by Covington & Burling, iattorneys at law, rather than by the Tobacco Institute? Because Austern can clai~ ~:~::::as his "work product" to keep the computer data from being legally "discovered" and used by an opposing party in litigation. Former assecia~e Joseph Vining:::warned Austern in a memorandum that such a brash tactic could never convince Nevertheless, Austern decided to retain the retrieval system under Covi~gt0n's control, thereby exploiting an ethical privilege ,as a prepaganda fror~t. B~t by so doing he lays waste the bifurcation theory that supposedly shields W~!:~ngton lawyers like him from their client positions. For it ..now appears that ~e :.:%s less a good soldier than a commander-in-chief, helping orga~i~:.~he industryi(~.~ublic "Austern and the Tobacco Institute; the Tobacco Institute and Austern. Like the animals and men in the la,=t line of Animal Farm, they have grown so alike it is difficult to distinguish one from ~he other~"i~ All of the above, material has come from: Mark J. Green: THE OTHER CO%~RNT~NT: The Unseen Power of Washington Lawyers ...... ~,~,~ Grossman Publishers, New York Copyright 1975 Chapter 7, pages 147 to 162 ....... 0