Blindfold and a cigarette

By STAN SHATENSTEIN

Tuesday, September 3, 2002 - Print Edition, Page A13, Globe and Mail

Simon Potter, a partner in the Montreal law firm Ogilvy Renault, was named president of the Canadian Bar Association (CBA) last month. Mr. Potter, a past president of the CBA's Quebec branch, is a listed lobbyist for Imperial Tobacco Ltd. and the Canadian Tobacco Manufacturers' Council.

He is also the lead counsel for Imperial Tobacco in its ongoing challenge to the advertising and sponsorship provisions of Canada's 1997 Tobacco Act and to federal regulations governing cigarette warning labels.

The Canadian Bar Association is fully within its rights to select as president any member in good standing, but serious concerns arise in Mr. Potter's case.

Whether it's fair or not, lawyers already suffer from a poor public image, ranking just ahead of journalists and insurance brokers in trustworthiness, according to recent surveys.

However, "people who run tobacco companies" fare even worse, ranking down there with car dealers and telemarketers, and just ahead of arms dealers.

While Mr. Potter is entitled to defend the tobacco industry's interests, it makes no sense for the Canadian Bar Association, representing a profession already suffering from a serious image problem, to align itself with the legal face of a business that most people find repugnant.

Far more importantly, it was revealed in 1998 that Mr. Potter shredded key internal documents on behalf of British American Tobacco (BAT), the parent firm of Imperial Tobacco, Canada's market leader.

Writing two 1992 memos on Ogilvy Renault letterhead, Mr. Potter informed executives of British American Tobacco and Brown & Williamson, Imperial's sister company in the United States that, "in compliance with [Imperial Tobacco's] document retention policy," he would destroy copies of some 60 critical Imperial Tobacco documents, and then did so.

Those revelations prompted the Non-Smokers Rights Association, a national tobacco-control organization, to call for the establishment of a royal commission to investigate the Canadian tobacco industry.

Certain questions needed to be answered: Why would a tobacco firm destroy documents that might be critical to eventual litigation? And, if the papers weren't important, why would their destruction be entrusted to a top lawyer rather than a junior legal clerk?

I was contracted by the Non-Smokers Rights Association in 1998 to trace and summarize the documents, still available in on-line archives, despite Mr. Potter's shredding of the Canadian copies. I found that virtually all the reports were scientific studies observing the "carcinogenicity of smoke condensate" to mouse or hamster skin. In other words, tobacco industry scientists were painting the backs of rodents with TSC (tobacco smoke condensate) and waiting for tumours to grow. And grow they did.

One study, titled "Experimental tumorigenesis in the hamster -- the activity of inhaled smoke from cigs. B12-1 and P12-2," revealed an "obvious dose-dependent effect."

Imperial Tobacco argued in 1998 that its destruction of such documents was basic corporate housekeeping and that the original documents were still available from British American Tobacco headquarters.

In Mr. Potter's words, the trashed papers were simply of "no further use" to the firm. However, by destroying its own copies of damning experiment reports, Imperial Tobacco made them less accessible to potential litigants. Remember, this was not a case of a clerk destroying invoices for coffee filters and paper clips -- Imperial had its top lawyer get rid of damning scientific data from its own laboratories.

Just this year, British American Tobacco's Australian subsidiary lost a case even before it could reach court. Judge Geoffrey Eames, of the Supreme Court of Victoria, ruled that the company's "deliberate obliteration" of internal documents -- under the same "document retention policy" -- had irretrievably prejudiced the case.

The plaintiff in the case, Rolah Ann McCabe, was awarded $710,000 in damages and interest, and British American Tobacco's Australian legal representative, the firm of Clayton Utz, is now under investigation. BAT Australia's appeal of the ruling is currently under way.

The Non-Smokers Rights Association's call for a royal commission in 1998 did not move the government to action, but these new Australian developments may yet reverberate here.

Simon Potter has not been shown to have committed any wrongdoing, in a legal sense, and may simply be at the service of an industry in terrible need of legal representation.

But the Canadian Bar Association has done itself little good in selecting as its spokesman the top counsel for a company that controls 70 per cent of cigarette sales in a country where tobacco use leads directly to the death of 45,000 Canadian citizens every year.
Stan Shatenstein, a researcher, is contributing editor of the journal Tobacco Control.