August 2005

Law firms and tobacco profits: Some relationships between the tobacco
industry and law firms in New Zealand

George Thomson, Department of Public Health, Wellington School of Medicine & Health Sciences, University of Otago, August 2004.

Introduction
A major strategy of the tobacco industry is to discourage those working for health from trying to control the industry. In many jurisdictions,
a tactic for this strategy is to ensure that any effort to control the industry requires very large investments in legal resources. This is done
by using lawyers to fight every possible procedural and substantive point within the public policy and legal processes 1 & 2 p.149. Some
of the more notable examples of the use of lawyers to slow or halt tobacco control efforts include litigation tactics in the USA 3 & 4 and
Australia 5.

This section gives information on some of the tobacco industry’s New Zealand law firms. Six of the law firms that are working or have
worked for the tobacco industry in New Zealand are:
1. Tripe Matthews Feist
2. Chen Palmer
3. Phillips Fox
4. Chapman Tripp
5. Simpson Grierson
6. AJ Park & Son

1.Tripe Matthews & Feist: Advice on hiding documents

From the late 1980s, Russell Feist and other lawyers in the firm such as Peter McMenamin were involved in the preparations for future
litigation against British American Tobacco's (BAT) New Zealand branch 6, 7, 8 & 9. As the likelihood of litigation increased, the tobacco
companies in New Zealand made joint and separate preparations. Read more.

One of the most striking contributions by the law firm to BAT’s preparations was a report on the legal situation for company documents,
should New Zealand litigants against the company wish to gain access to them 10. In this report, the law firm states that BATCo, the
parent company in Britain, ‘must not’ attach any material to letters to the New Zealand branch of BAT that would be damaging to their
case, as they would be ‘discoverable’ (would have to be produced if asked for by litigants) 10 p.31.

Advice that could result in reducing a litigants’ access to relevant material can be considered contrary to the duty of New Zealand lawyers
to support a fair legal system. This ‘duty to the courts’ is laid out in the Rules of the New Zealand Law Society, which establish the
principle that lawyers should not be party to deceptions of the courts 11 Rule 8.01. The duty to the courts overrides a lawyer’s duty to a
client or employer.

This advice by Tripe Matthew & Feist is similar to that given to tobacco companies by law firms in other countries, where the point of the
advice is to avoid letting litigants against the companies have access to damaging material, or even learning of it 4 & 5. As a consequence
of this type of advice it is now illegal in Australia for lawyers to advise clients to move to inaccessible places documents that litigants may
require 12. In the United States, a Federal Appeals Court in 2003 found that lawyers are liable for abuse of process lawsuits, when they
help clients to deny material to opposing litigants 13.

2.Chen Palmer & Partners: Slowing tobacco control

This firm was formed in 1994 by Geoffrey Palmer and fellow legal academic Mai Chen . The firm promotes itself as having its roots ‘in the
North American model of the “Washington law firm” ’ 14. One of the first clients of the new firm was the Tobacco Institute of New Zealand,
and the firm continued to act for the industry at least until 2001 15.

In 1995 the firm was used by the Tobacco Institute to pursue the potential for legal action against the government, on the grounds of
insufficient consultation and improper process in the preparation of new tobacco product health warnings. An array of actions by the
Institute using administrative and commercial law was suggested, should the government continue with its plans 16.

The tactics, along with other efforts to exert pressure, appear to have been successful in slowing the adoption of the warnings for several
years. The success was explicitly recognised by British American Tobacco’s New Zealand branch in October 1995, when one of its staff
reported that: ‘Final decisions on new Australian-style pack warnings are still some way off and legal submissions presented by the
industry have further slowed the implementation of the new warnings...' 17.

Palmer was a Professor of Law until he became a Labour Party MP in 1979, Deputy Prime Minister and Minister of Justice from 1984 to
1989, and Prime Minister of New Zealand for twelve months in 1989-1990. After resigning from Parliament in 1990, he became a
Professor again at the Victoria University of Wellington law school, as well as working for one of the large law firms, Chapman Tripp
Sheffield Young 18 p.279. He received a knighthood after leaving Parliament.

Since 2000, Palmer has been appointed as New Zealand representative on the International Whaling Commission 19 and as chair of the
general Advisory Committee of the Online Encyclopaedia of New Zealand 20. A Professor at Victoria University of Wellington during much
of the 1990s, in 2004 he was an Adjunct Lecturer 21 & 22.

Mai Chen was appointed in 2003 to the New Zealand Securities Commission 23 and has been a Ministerial appointment to the Councils of
Victoria University of Wellington and Wellington Polytechnic 24.

In July 2006, Chen Palmer contacted ASH and informed us that "the Firm no longer acts for any tobacco companies."

For further information and pictures of Palmer and Chen go to the Palmer and Chen website

3.Phillips Fox: Helping fight smokers

When British American Tobacco (BAT) wanted a law firm in 2002 to handle their defence of the lawsuit from a dying Invercargill woman,
they turned to Phillips Fox.One of the connections between BAT and Phillips Fox is Denis Thom . He is a former Executive Chairman of
Phillips Fox New Zealand, and currently Chairman of British American Tobacco (NZ) Limited 25.

Phillips Fox describe themselves as 'one of the largest [law] firms in Australasia. Founded in 1864 as P.D. Phillips, today we number some
185 partners, 1500 people in 10 offices across 3 countries' 26. They have a substantial health industry team, listing 21 partners for that
area in 2004 27. As a firm, they have not always been seen favourably by the tobacco industry. In 1993 the Tobacco Institute of Australia
wrote to two of the firm’s personal injury insurance partners in Melbourne, disputing public comments the lawyers had made about
employers’ legal obligations to provide smokefree premises 28 & 29.

During 2003-4, Philip Fox lawyers Iain Thain and Michael Bos have appeared for BAT, when the latter has been the defendant in cases
brought by smokers 30 & 31.

4.Chapman Tripp: Big law, bigger tobacco

Chapman Tripp (previously Chapman Tripp Sheffield Young) describe themselves as ‘one of New Zealand’s largest law firms’ whose ‘aim
is to assist our clients achieve a competitive edge’. Their ‘core values’ include the ‘pursuit of the most effective commercial and legal
outcomes for clients.’ They also aim to be ‘strong corporate citizens’ 32.

Internal tobacco industry documents show that Chapman Tripp acted for tobacco companies Philip Morris and RJ Reynolds during 1996-
97. They dealt with, amongst other things, correspondence about the public release of the tobacco ingredient returns by tobacco
companies 33, 34 & 35. This information on ingredients is required by law to be given to the Ministry of Health.

Amongst the Chapman Tripp staff dealing with the companies were Samantha Kraft, Sonia Saul and Stephen Lowe. The latter was still
with Chapman Tripp’s Auckland office in 2004 36.

5.Simpson Grierson: Openly working for the tobacco industry

The firm of Simpson Grierson (formerly Simpson Grierson Butler White) is open about their work for the tobacco industry. As part of the
law firm’s advertising for product liability work, they say:

‘Simpson Grierson has acted for major national and multinational firms for many years in such diverse areas as asbestos, chemicals,
electronics, pharmaceuticals and tobacco’37.

Amongst their work for the tobacco industry, Simpson Grierson prepared advice in 1987 on the potential for liability for health damage 38.
In 1988, confidential data from a Tobacco Institute of New Zealand poll was analysed. On the cover of the 118 page report are the words
‘prepared for Simpson Grierson Butler White’ 39. Thus it appears that either they organised the report for themselves, or for the Tobacco
Institute. In the report there is a wide range of recommendations on how to slow the movement of public opinion about smoking and
tobacco smoke pollution.

Also in 1988, Simpson Grierson gave advice to British American Tobacco on ‘questions relating to legal professional privilege’ 40. In 1989,
Simpson Grierson advised on possible courses of action if plain packaging of tobacco products was proposed in New Zealand; and also
advised on the recommendation by the New Zealand Toxic Substances Board to end advertising and promotion of tobacco products 41.
During the 1990s, Simpson Grierson acted for the Tobacco Institute of New Zealand on the matter of tobacco ingredients disclosure 42.

Their lawyers who have worked with Philip Morris and Japan Tobacco include product liability specialist Robert Gapes 7 & 43 and Richard
Lange 44 & 45. Others who worked for the tobacco industry while at Simpson Grierson, who have now left the firm, are John Gresson 43
& 46 and Derek Firth 7. Richard Worth, now National Party MP for Epsom, was Executive Chairman of Simpson Grierson from 1986-1999
47.

Gapes has been a Chairperson of the New Zealand Law Practitioners Disciplinary Tribunal, and member of Simpson Grierson’s Ethics
Committee 48.

6.AJ Park & Son

AJ Park & Son acted for Philip Morris and other tobacco companies in patent applications from 1964 or before, to at least 1994 49, 50 &
51.

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Last Update: 2005-04-22