Advocacy in the Court of Public Opinion, Installment Two: How Far Should Corporate Lawyers Go?
78 Pages Posted: 23 Mar 2010 Last revised: 23 Mar 2011
Date Written: March 16, 2010
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 isolate legal activities from public relations activities. Accordingly, when providing legal advice, they have viewed media considerations as separate. Historically corporate counsels’ typical media strategy often consisted of no more than, “no comment.” Given today’s saturated media culture, this is no longer a viable strategy. Indeed, it appears 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 play 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 impacts legal controversies of large, publicly traded corporations that have high demand for legal services; (2) how the general counsels of these corporations manage the intersection of public relations and law; and (3) what should be the corporate lawyer ’s 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 in the Georgetown Journal of Legal Ethics. The ﬁrst installment focuses on how the court of public opinion can impact legal controversies and how corporate attorneys currently manage legal public relations for their corporate clients. It argues that the court of public opinion is a real part of our justice system and that managing legal public relations (legal PR) is a legitimate and fundamental component of corporate legal services. It 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 attorney’s role in this arena. The second installment highlights examples of wrongdoing by corporate attorneys and 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 on the wrong place and are therefore not relevant to the way corporate lawyers manage public relations. Moreover, these professional guidelines 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. Although the court of public opinion is an extra-legal decision-maker, it does not ﬁt the traditional adjudicative proceeding paradigm. Therefore, the second installment contends that some level of advocacy may be appropriate in that alternate-court, but that corporate lawyers should still act in a socially responsible manner and counsel their clients to act that way as well. Ultimately, this Article recommends revised education methods and disciplinary rules to provide better guidance to lawyers as to how to ethically manage legal PR for corporate clients.
Keywords: corporate, advocacy, model rule 3.3, court of public opinion, public relations
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By Robert Rosen