Criminal Defense Lawyers and the Defenders of Criminals

When the white shoe is on the other foot

The moral accounting that Patrick Radden Keefe in his book Empire of Pain does of Purdue Pharmaceuticals and the Sackler family that owned, controlled and ran the company is easy enough to follow — they helped spark a devastating opioid epidemic that has claimed the lives of hundreds of thousands all the while doing their best to mislead the public about the addictive qualities of OxyContin.

In 2006, the parent company of Purdue and three of its senior executives plead guilty to “misbranding” the drug, and last year Purdue itself plead guilty to federal charges of conspiracy to defraud the U.S. and violating anti-kickback rules. The company is now enmeshed in massive civil litigation and going through bankruptcy.

Empire of Pain which chronicles the almost 100 year rise, reign, and fall of the Sackler family, opens with a deposition of Kathe Sackler, a former Purdue executive who has claimed to have come up with the idea for OxyContin. Among the many lawyers representing her is Mary Jo White, the former U.S. Attorney of the Southern District of New York and an SEC chair appointed by President Obama.

Keefe explicitly draws a contrast between White and her team of Debevoise & Plimpton attorneys with the man trying to extract information from her client, a class action litigator named Paul Hanly. Whereas White is silent during the deposition — Keefe describes her role as “not to make noise but to serve as a holstered gun, silent but visible, by Kathe’s side” — Hanly is necessarily voluble. And not just verbally, sartorially as well.

Hanly, who died this past week, dresses like someone who was an ambitious attorney in New York in their 30s or 40s in the 1980s, which he was:

He did not look like the other attorneys. Hanly was a class-action plaintiffs’ lawyer. He favored custom-made suits in bold colors and tailored shirts with stiff, contrasting collars. His steel-gray hair was slicked straight back, his piercing eyes accentuated by horn-rimmed glasses. 

The types of lawyers who defend Purdue and the Sacklers — not just defend them, but oversee their interactions with the FDA, prep their congressional testimony, have quiet conversations with senior Department of Justice officials while a criminal investigation is ongoing — are not like this at all.

If you saw a Debevoise & Plimpton or Covington & Burling lawyer on the subway you wouldn’t look twice — unless maybe if it was Eric Holder. You might not even see Mary Jo White at all, she probably doesn’t take the subway much anymore and is maybe five feet tall.

This pattern of elite, mainstream institutions enabling the Sacklers and Purdue is a constant throughout the book. It isn’t just the lawyers, who can at least point to everyone’s right to have an attorney. There are questionable dealings with FDA when the Sackler patriarch, Arthur (who was himself not involved with OcyContin), was a medical publishing and advertising tycoon. Sackler was a pioneer in pharmaceutical sales and marketing, including with funding of medical professionals to give “academic” or professional talks and presentations that aligned with whatever Sackler and his clients were pushing.

At every stage, the professionals defending Purdue and advancing its interests could point to the fact that what they were doing was, generally, legal. Everything they sold was FDA approved, after all. What Keefe’s work shows is that once you can assemble a fig leaf of corporate legality and legitimacy, there’s a whole infrastructure of professional service providers who, for the right price, will advance your interests and happily defend you against almost any claim of wrongdoing.

On the other side are, among others, plaintiffs attorneys, something like the criminal defense lawyers of civil legal space, flashy gunners who are explicitly mercantile in a way that white-shoe law firm partners would never admit to. Big Law bills by the hour, plaintiffs’ lawyers work on contingency. They get called ambulance chasers. They are often the slightly disreputable heroes of John Grisham novels. They were once the bête noire of the Republican Party and are being progressively hunted out of existence in Texas.

Think, say, John Edwards. Think the guy in The Insider who literally played himself as one of the lawyers going after Big Tobacco and who shows up again as part of the litigation against Purdue. While corporate lawyers routinely cycle in and out of high profile appointed positions, when plaintiffs’ attorneys end up in government it’s typically because they were elected to do so. After all, convincing a jury isn’t that different than convincing an electorate — and the plaintiffs’ bar is a major source of campaign dollars.

And it wasn’t just fancy, respectable lawyers that the Sacklers and Purdue got to argue their case. Keefe and ProPublica have both reported on the work Purdue did with free-market oriented think tanks to get favorable pieces published about opioids.

The Mafia these days, for what it’s worth, operates at a far smaller scale than Purdue did at its OxyContin height and doesn’t usually get former senior Justice Department officials to represent them in court.

They also don’t get the privilege of declaring bankruptcy, another process that Keefe depicts as essentially captured by a bankruptcy bar where everyone knows each other and prizes “efficiency” over the kind of stuff mildly oleaginous plaintiffs lawyers talk about in front of juries: justice, fairness, right and wrong.