Scruggs used as prime example why not to base guilt on association for Kirsten Gillibrand

A number of anti-smoking advocates have been issuing personal attacks against the ethics and character of New York Senator Kirsten Gillibrand, accusing her of professional misconduct as an attorney by virtue of her having represented Philip Morris while she was an associate at the law firm of Davis, Polk, & Wardwell. Because she represented tobacco company defendants in court cases and because they allege that she was guilty of professional misconduct, anti-smoking advocates have called Gillibrand a “sellout,” and a “lowlife.”

For example, Cliff Douglas – the executive director of the University of Michigan Tobacco Research Network – has written two pieces which attack Gillibrand’s ethical conduct (commentary #1; commentary #2).

In this post, I analyze the evidence that has been presented in support of the allegation that Gillibrand is guilty of professional misconduct and conclude that the accusation is based on guilt by association, not on appropriate evidence that would warrant such a personal attack.

Based on a paragraph by paragraph analysis of the commentaries written by Douglas, here is the evidence presented to support the allegation of scientific misconduct, along with an evaluation of the adequacy of the evidence:

6. “I was partly responsible for the launching of the U.S. Attorney General’s four-year criminal investigation of the tobacco industry, and later contributed to the successful effort to persuade the Attorney General to sue the industry under the civil racketeering laws. In both instances, I prepared detailed legal analyses and recommendations at the request of members of Congress, who then forwarded them to the Attorney General. The point of reciting my role is to highlight my familiarity with what Senator Gillibrand was involved in, and with whom she was working so hard to protect. The picture isn’t pretty. (For additional background, see the book Civil Warriors: The Legal Siege on the Tobacco Industry by investigative reporter Dan Zegart, which reads like a non-fiction version of a John Grisham thriller.)”

Here, the argument is guilt by association. With whom she was working is deemed evidence of her guilt. She is being judged based on the actions of other tobacco industry lawyers. No specific evidence or analysis of Attorney Gillibrand’s actions is provided.

In fact, the names “Gillibrand” and “Rutnik” do not even appear in the index of Zegart’s book, which is being used to skewer Gillibrand and find her guilty of professional misconduct. Interestingly, however, one lawyer’s name which does appear in the index is that of anti-tobacco lawyer Dick Scruggs, who most definitively has been found to be guilty of professional misconduct.

The rest of the story is that the attack on Gillibrand and the accusation that she was guilty of professional misconduct are based on a guilty by association argumentation strategy, rather than based on specific evidence of unprofessional actions that Gillibrand individually took in her work.

I believe that if you are going to publicly skewer someone and accuse them of something so severe as professional misconduct, it needs to be based on convincing, specific evidence of their individual actions, not based on the actions of other people in the same profession.

The same reasoning that is being used to skewer Gillibrand could also be used to skewer the rest of the anti-tobacco lawyers who worked very closely with Dick Scruggs to sue the tobacco companies and obtain huge amounts of money and political prestige from the state tobacco lawsuit settlements. Scruggs was indicted twice on bribery charges and is serving a 7-year sentence in federal prision for trying to bribe two judges.

Just because Scruggs was an unethical criminal guilty of professional misconduct, does that mean that the rest of the anti-tobacco lawyers who worked on the state tobacco lawsuits also were of a similar ethical character?

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