Advocacy in the Court of Public Opinion Part I: Broadening the Role of Corporate Attorneys
75 Pages Posted: 8 Apr 2009 Last revised: 15 Dec 2009
Date Written: April 7, 2009
Today legal controversies are tried in the "court" of public opinion as much as in any court of law. Corporate lawyers' traditional tendency, however, has been to attempt to compartmentalize legal activities from public relations activities. Accordingly, they have viewed media considerations as separate from those involved in providing legal advice and corporate counsels' typical media strategy often has consisted of no more than "no comment." Given today's saturated media culture, this is no longer a viable strategy. Indeed, there are indications that some corporate lawyers are adapting to the new media environment and attempting to help their clients manage the public relations impact of legal controversies. To date, however, there has been little systematic evidence gathered on the role corporate lawyers are playing in the court of public opinion for their clients' legal controversies and little sustained examination of the implications of these trends.
The purpose of this project is to analyze: (1) how the court of public opinion affects legal controversies of large publicly traded corporations that have high demand for legal services; (2) how the intersection of public relations and law is managed by general counsels of these corporations, and (3) what ought to be lawyers' ethical obligations, if any, in this extra-judicial court. To investigate these questions, the author sent a questionnaire to all general counsels of the S&P 500 and conducted fifty-seven interviews with general counsels of S&P 500 corporations, law firm partners, and public relations consultants. The preliminary findings from this study will appear in two installments to be published in forthcoming issues of the Georgetown Journal of Legal Ethics. In the first installment, the author focuses on how the court of public opinion can shape legal controversies and how corporate attorneys actually manage legal PR for their corporate clients. The author argues that the "court" of public opinion is a real part of our justice system and that managing "legal public relations" is a legitimate and fundamental component of corporate legal services. She contends that the role corporate attorneys play in managing legal PR for corporate clients is at odds with the conventional view and that it is time to broaden our view of the corporate attorneys' role in this venue.
In the second installment, the author highlights some examples of wrongdoing by corporate attorneys. She contends that there is little oversight of lawyers' typical management of legal PR "behind the scenes." Because professional guidelines focus on lawyers' extrajudicial statements regarding matters that are adjudicated in a court of law, they put the spotlight in the wrong place and on the wrong subjects and are not relevant to corporate practice as it relates to public relations. Moreover, they risk a race to the bottom - where lawyers' ability to spin is valued over their ability to provide effective legal advice that accounts for PR concerns and the corporation's long term interests. Given that the court of public opinion is an extra-legal decision-maker, an alternate forum for administering justice, the author contends that corporate lawyers should behave socially responsibly when advocating there and promote socially responsible behavior on the part of their corporate clients. Ultimately, the author recommends different education methods and disciplinary rules to raise awareness of the importance of managing legal PR for corporate clients and to provide better guidance to lawyers as to how to advocate ethically within the court of public opinion.
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By Robert Rosen