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Last month I wrote about U.S. Senator Kirsten Gillibrand's tobacco connection. In a testament to the visibility of the Awearness Blog, the piece quickly drew attention, first prompting coverage in the Village Voice, and then, more recently, in a front-page investigative story in the New York Times.

The Times' exposé immediately generated a flood of reactions. Many expressed outrage that the woman appointed to complete Hillary Clinton's term in the United States Senate spent many years fighting tooth and nail to defend the interests of the world's largest cigarette company. A representative comment: "Her morals suggest that she would ignore human death and suffering for the right price. She should resign immediately."

Some observers focused on the fact that, rather than simply arguing Big Tobacco's side, Ms. Gillibrand played a central role in hiding from prosecutors and injured smokers many internal company documents that showed what Philip Morris knew about the harm caused by their products, and when they knew it.

Other observers reacted skeptically to the Times' coverage. One said simply, "I'm not sure what the point of this article is. A lawyer represented a client." Another argued, "This is a lame attempt at a hit piece. Ms. Gillibrand was an attorney at a New York law firm. One of an attorney's foremost ethical obligations is to zealously represent their clients."

Let's briefly examine what is involved here by looking back at a landmark federal court decision issued on August 17, 2006 in the case of United States v. Philip Morris USA et al. In that case, brought by the U.S. Department of Justice against this nation's major cigarette companies, U.S. District Judge Gladys Kessler held Kirsten Gillibrand's client and the other defendants liable for having violated civil racketeering (RICO) laws [PDF] by lying, and continuing to lie, about the health risks of smoking and secondhand smoke and their marketing to children. Judge Kessler supported her decision with an opinion weighing in at 1,742 pages. In it, she wrote:

[This case] is about an industry, and in particular these Defendants, that survives, and profits, from selling a highly addictive product which causes diseases that lead to a staggering number of deaths per year, an immeasurable amount of human suffering and economic loss, and a profound burden on our national health care system. Defendants have known many of these facts for at least 50 years or more. Despite that knowledge, they have consistently, repeatedly and with enormous skill and sophistication, denied these facts to the public, the Government, and to the public health community.

She added, "The evidence in this case clearly establishes that Defendants have not ceased engaging in unlawful activity." How does this relate to Senator Gillibrand's work as a lawyer defending such actions? Judge Kessler helped answer this question:

A word must be said about the role of lawyers in this fifty-year history of deceiving smokers, potential smokers, and the American public about the hazards of smoking and secondhand smoke, and the addictiveness of nicotine. At every stage, lawyers played an absolutely central role in the creation and perpetuation of the [racketeering] Enterprise and the implementation of its fraudulent schemes. They devised and coordinated both national and international strategy; they directed scientists as to what research they should and should not undertake; they vetted scientific research papers and reports as well as public relations materials to ensure that the interests of the Enterprise would be protected; they identified "friendly" scientific witnesses, subsidized them with grants ... paid them enormous fees, and often hid the relationship between those witnesses and the industry; and they devised and carried out document destruction policies and took shelter behind baseless assertions of the attorney client privilege. What a sad and disquieting chapter in the history of an honorable and often courageous profession."

Then she added, "It would appear this situation continues even to the present."

Kirsten Gillibrand had a choice. As noted by the New York Times, "many lawyers, including some who now serve in the Senate, have defended unpopular clients. Still, in an approach that was not uncommon at law firms that represented tobacco companies, lawyers at [Gillibrand's law firm] were permitted to decline work on the tobacco cases if they had a moral or ethical objection to the work."

As a colleague of mine observed, "Everyone is accountable for the choices they make in their life." He then pointed me to a story that just appeared in the Portland Tribune about a Harvard lawyer, Jefferson Smith, who is a recently elected Oregon state legislator. Rep. Smith, like Senator Gillibrand, inherited a powerful political pedigree, graduated with a top-flight legal education and eventually entered politics. Where the two stories diverge is reflected in the following:

[After graduating from law school,] Smith accepted a post with a top Manhattan law firm, which waited while he studied for New York's bar exam. But his second day on the job, Smith balked when asked to take a case representing tobacco companies.

"He walked away from $180,000 a year before bonuses," recalled his dad, "because he decided his conscience wouldn't let him."

Again, Kirsten Gillibrand had a choice. The New York Times asked whether she had any misgivings about representing Big Tobacco. She declined to be interviewed, and her spokesman dodged the question.

Will the past be prologue? What matters now is what Kirsten Gillibrand does in her service as a representative of the people of New York and the nation. Will she, for example, firmly support pending legislation to grant the Food and Drug Administration long overdue authority to regulate tobacco for health and safety? Cigarettes are the deadliest product sold in America, and yet they are exempt from even the most basic health regulations that apply to other consumer products, such as food, drugs and even lipstick. This year, the U.S. Congress has a truly historic opportunity to protect our children from tobacco addiction and save lives.

Will she be a part of it? My assumption is that she will, since, for business reasons -- the main one being Philip Morris's market dominance over its competitors -- her former client and current political benefactor happens to support FDA regulation of tobacco. But what if Philip Morris changes its mind and decides to follow in lockstep with the rest of the industry, which vehemently opposes such regulation? Will Senator Gillibrand follow? Again, she'll have a choice.