Professional Responsibility and the Corporate Hoodwink: Using the Climate Disinformation Campaign To Examine the Ethical Responsibilities of Attorneys When Corporate Clients Mislead the Public to Avoid Government Regulation
Environmental Law, Disrupted.
22 Pages Posted: 14 Jan 2022
Date Written: January 12, 2022
This chapter surfaces an important legal question about the operation of the climate disinformation campaign. Assuming that fossil fuel companies are free to mislead the public to sway public debate and policy, are their attorneys ethically permitted to aid in that effort? What role did attorneys play in the climate disinformation campaign and did those attorneys violate ethical rules?
We examine the proper and ethical role of attorneys when corporate clients seek to mislead the public to avoid the development of public policy that threatens the corporation’s interests through the lens of the climate disinformation campaign. Attorneys may not lie when speaking publicly on a client’s behalf and may not assist a client in making public statements that constitute fraud or criminal conduct. Existing ethical rules provide less clarity, however, with respect to an attorney’s obligations when a client misleads the public to forestall the development of public policy contrary to the client’s interests. Notably, however, within this gray area, even where ethical constraints do not clearly apply, arguments can be made that they could or should.
We caution attorneys involved in corporate public disinformation campaigns to proceed with extraordinary caution in light of the risk of violating relevant ethical rules, particularly in light of the possibility that disinformation campaigns may ultimately found to be fraudulent. Our chapter also serves as a call to action to the Bar to clarify and perhaps strengthen the guidance provided when attorneys function as advisers to public relations efforts. While we do not here fully engage the normative question of whether the ethical rules should police attorney participation in corporate public disinformation, the deep public harms from disinformation efforts as well as the unpalatability of the notion that attorneys may ethically deploy their stature and skills to advance corporate deception when not otherwise specifically prohibited by law suggests, at a minimum, that the profession should seriously evaluate the scope of its obligations in this regard.
Keywords: climate change, climate disinformation, professional responsibility, first amendment, ethics
JEL Classification: K32, K23
Suggested Citation: Suggested Citation