When Philip Morris marches into battle against its many foes, the tobacco giant is accompanied by some of the country's most powerful and prestigious law firms: New York's Wachtell, Lipton, Rosen & Katz; D.C.'s Arnold & Porter; Richmond's Hunton & Williams--and D.C.'s Wehner & York.
Wehner & York?
The three-lawyer firm, which has been in business only since 1993, made it onto the Philip Morris Cos.' roster for one reason: Michael York, a Pulitzer Prize-winning journalist-turned-lawyer who is helping provide legal and strategic advice to a company wrestling with a critical, even hostile, press.
Tapping York was a savvy stroke by the tobacco giant, as some of those who have reported on the company attest. "It was a brilliant move by Philip Morris to bring him in," says Steve Weinberg, a freelance investigative reporter who wrote about the tobacco giant's landmark 1994 libel suit against the American Broadcasting Co. for the Columbia Journalism Review and the ABA Journal. "If I were working for Philip Morris, I hope I would have had the smarts to make that move," he says.
But it was also a move laced with irony. York's work as a journalist, after all, was once the subject of a libel suit--involving the very story that in 1986 netted him journalism's most prestigious prize.
Plenty of journalists go on to work in public relations. But York's unorthodox journey from one of the nation's most respected newspapers to counsel to one of its most notorious industries has baffled some of his former colleagues. "There was a lot of head-shaking here when Michael York first surfaced as a spokesperson for Philip Morris," says Howard Kurtz, media reporter for The Washington Post. "People had a hard time understanding how someone who was renowned as a tough, aggressive reporter could suddenly be using those same skills on behalf of such a controversial industry."
And some anti-tobacco activists harbor a special irritation at York, who, they say, sold out the journalist's commitment to public disclosure by taking on Philip Morris as a client. "Now more than ever before, the [tobacco] industry is rampaging against the American press, intimidating even media giants to prevent them from looking closely at what the tobacco companies and their officials do," says anti-tobacco activist Clifford Douglas, referring to ABC's controversial decision to settle the Philip Morris libel suit and a CBS decision late last year to pull the plug on an interview with a former executive of the Brown and Williamson Tobacco Corp. In these circumstances, "there's an extraordinary irony in their hiring as one of their chief spokespeople, a person who was presumably a neutral, fair-minded reporter for one of the country's leading papers," Douglas says.
York declines to comment on the work he does for Philip Morris; the company, too, demurs in discussing York's role on their legal team, citing a company policy of discouraging profiles of employees and outside counsel. In past conversations, however, York has passionately defended his role as Philip Morris' counsel, saying he was proud to represent the company and that there are important legal principles at stake in its litigation. He has said that he spends less than 10 percent of his time dealing with the press and the rest of his time in hearings, strategy sessions, and advising the client on the litigation itself. He has described Philip Morris as the classic unpopular client, in need not merely of top-flight litigation attorneys but also of people to explain its position in detail to a hostile press. And he regards a major part of his role as ensuring that the press has adequate access to information about the company's positions and adequate understanding of case documents.
York appears to offer a blend of legal advice to the client and public affairs advocacy aimed at the news organizations that cover its legal battles. His name doesn't typically appear on briefs. Herbert Wachtell, name partner at Wachtell, Lipton, led Philip Morris' charge against ABC, and Peter Grossi Jr., a partner at Arnold & Porter, was chiefly responsible for Philip Morris' response to proposed Food and Drug Administration regulations that seek to restrict children's access to cigarettes.
York's visible value to the company is his extensive contact with reporters around the country and his knowledge of the ins and outs of the news business and how to provide information that is both useful to reporters and in the company's best interests. So when York writes a letter to a reporter, it carries both a lawyer's warnings about the boundaries of libel and trade secret law--and a press secretary's spin.
He has also taken on the job of pushing the normally reticent and press-shy Philip Morris toward greater openness, giving the company advice about what information it can give out without compromising its litigation positions.
The mix of law and public relations also gives Philip Morris a benefit that not all companies under fire can claim. Corporations that rely on outside public relations agents to handle the press cannot claim the attorney-client privilege in the event that their conversations about PR become the subject of legal controversy. But Philip Morris, like a lot of other media-savvy clients who let their lawyers talk to the press, could invoke the privilege with regard to York's PR advice to the company, should the need arise.
York, 42, may be an unusual choice for Philip Morris, but he is no stranger to tobacco's roads.
Born in North Carolina and raised in Virginia, York graduated from the University of North Carolina School of Law in 1978 and, after a brief stint as a reporter for Legal Times, became a staff attorney for the Kentucky Legislative Research Commission.
But then he returned to journalism, becoming a reporter--and later Washington correspondent--for the Lexington Herald-Leader. He won his Pulitzer in 1986 for an investigative series he and another reporter wrote about college athletics; shortly thereafter, he moved to the Post. There, he covered federal courts and did investigative reporting on Mayor Marion Barry Jr. Former colleagues describe York as affable, bright, and idiosyncratic.
According to Bill Dedman, a reporter for the Associated Press who worked with York at the Post, York pursued the Barry stories aggressively despite considerable political pressure at the paper not to do so.
"He was a dogged, serious reporter reporting on an unpopular story both with many Post readers and with many Post editors," Dedman says. "He showed perseverance and a thick skin--a willingness to pursue the story fairly but aggressively." One former Post reporter dissents from this high opinion of York, saying he was widely regarded at the Post as smart and capable but not very hard-working. At least three other current or former Post staffers, however, describe his work with great respect.
"He's a charming person. He's able to talk to lots of different people and able to get information," says Mary Jo Meisner, York's former editor who is now editor of the Milwaukee Journal Sentinel. "He's kind of a classic investigative reporter. Most good investigative reporters aren't your typical button-down, nine-to-five types. They're iconoclasts--square pegs in round holes. I think Michael fits that bill."
Mid-life crisis
York left the Post, and he joined Stephen Wehner and Wehner's wife, Kay Millicent Brown, in the recently formed legal partnership in January 1994.
"I thought this was the least self-destructive step I could take in response to a mid-life crisis," he told Legal Times that year, noting that his other option was "buying a 1951 Chevrolet convertible."
He told his colleagues at the Post that he was also working on a book on legal matters of concern to reporters. The book apparently has not yet been finished and has become a subject of some amusement to his former colleagues.
"Michael left the paper to go write a book on ethics in journalism and then apparently didn't find any, because he ended up working for the cigarette industry," quips one former Post reporter.
The three lawyers at Wehner & York are a diverse crew. Wehner, who once headed the Fraud Section of the US Attorney's office in the Eastern District of Pennsylvania, does white collar criminal defense and civil litigation. He met York in the early 1980s, when York reported on a case he was prosecuting. Brown, a former nurse, does mainly medical malpractice and personal injury law. While the overwhelming majority of York's time is apparently spent on Philip Morris work, neither of his partners do any work on tobacco issues.
Among the clients Wehner or the firm has represented: former Housing and Urban Development official Deborah Gore Dean; former Republican Gov. Arch Moore Jr. of West Virginia; Mary Jo Smith, wife of Sen. Robert Smith (R-NH); and the Design Professional Insurance Co.
Wehner says that he and his wife have benefited from York's journalistic skills as they've developed their practice. "York's a brilliant writer and has a very very sharp mind," Wehner says of his partner. "He speaks four languages; he's a commercial airline pilot; and he's a Pulitzer Prize winner. And you add all those things together and you have a great partner."
But York's practice struggled--until the Philip Morris contract came along. (In June of 1994, York wrote a free-lance article for Legal Times on alleged neo-Nazi hazing rituals at Gallaudet University.)
The Philip Morris contract came when a public affairs agent mentioned York to the company, knowing that Philip Morris was seeking someone of his unusual background. The tobacco giant retained York last winter, and soon thereafter, he emerged in the press speaking for the company.
York chiefly works on product liability cases, and he has also done work on FDA matters. But his public profile has been highest in the ABC case, which ironically pitted him against fellow Pulitzer Prize winner Walt Bogdanich, an ABC producer who, along with the company and reporter John Martin, were name defendants in Philip Morris' libel suit. The 1994 broadcast on the networks' "Day One" newsmagazine at issue in the suit, which was settled last summer following an ABC apology, alleged that tobacco companies add nicotine to cigarettes.
Glory and Trouble
York's work on the case was even more ironic considering that his own investigative reporting had once landed him in the thick of a libel suit.
In fact, the articles for which York won a Pulitzer Prize sparked a libel suit between former University of Pittsburgh assistant basketball coach Reggie Warford and the Herald-Leader. York and his co-author, Jeffrey Marx, had alleged in their series that Warford promised money to a prospective recruit, Steve Miller, if Miller played for Pittsburgh. Warford denied the charge and alleged that the Herald-Leader, in reprinting the articles, had made it impossible for him to get work in college basketball.
York was quickly dismissed from the litigation, but his reporting was very much at issue throughout the case. At trial, where Miller testified that the story was true, the paper won a directed verdict. But the Kentucky Supreme Court overturned the decision, ruling that the trial court had improperly deemed Warford a public figure. Even if Warford was a public figure, the court concluded in the controversial decision, a reasonable jury could still conclude that the paper acted with actual malice.
"[W]e hold the evidence could support a finding of actual malice upon the basis that [the Herald-Leader] must have entertained serious doubts as to the truth of their published charge that appellant offered money to Steve Miller," the unanimous court ruled of the paper's decision to reprint the series after the initial story had been challenged. "[A] jury could reasonably believe that appellees were committed to running the story without regard to its truth or falsity."
Rather than retrying the case under the onerous rules laid out by the Kentucky Supreme Court--which would have forbidden the paper from introducing evidence that Miller had been given an after-school job at the University of Pittsburgh involving no work--the Herald Leader settled for an undisclosed sum without admitting fault.
Although his own reporting brought the Herald-Leader trouble as well as glory, York gets high marks from reporters he assisted on articles about the ABC case. Weinberg, the freelance writer whose articles about the case was sympathetic to ABC's report, nonetheless describes York's help as invaluable.
"Every time I asked a question, he did his best to get me a quick and complete answer," says Weinberg, who knew York prior to writing the article. "He gave me his home number, and I called him there whenever I needed him. He even called me from overseas once."
While some journalists appreciate his talents, anti-tobacco activists resent them.
"I'm always a little bit shocked that someone who has done anything in the public interest lines up with the tobacco industry, given just how much harm they do," says Richard Daynard, who heads the Tobacco Products Liability Project at Northeastern University Law School in Boston. "There is that little bit of shock that my veneer of sophistication can't quite conceal."
Still, some familiar with York's work caution that lawyers often have to represent unpopular interests--and that York's critics are too quick to tar the advocate with the client's conduct.
"I don't know what his personal feelings are about the cigarette industry, but I'm sure the people who represent O.J. Simpson have to live with representing things that are personally distasteful to them," says Tom Sherwood, a former Post reporter now with
WRC-TV. "There are lawyers who represent media organizations, and I'm sure they have to swallow sometimes, too."
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Benjamin Wittes reports for the Legal Times. Reprinted from the January 29, 1996 Legal Times. Copyright 1996, American Lawyer Media, LP.