Summary
This is an academic paper that explores the role that lawyers played in the disinformation campaign that led to the storming of the U.S. Capitol on January 6, 2021 and provides recommendations for how the profession should handle this type of conduct. The article looks at various real-world examples to explore lawyers’ conduct in filings and public statements. It argues that lying in filings has clear recourse, but that more complex questions arise when lawyers lie publicly and when lawyers in non-representative public roles (LINPRs) lie. For public statements made by attorneys representing a client, there is a gray area given professional rules that lawyers shall not make “a false statement of material fact or law to a third person,” but this may have First Amendment challenges. For LINPRs, if they commit unlawful acts (like fraud) it is a clear violation of professional conduct, but the key issue is when they make public statements that are lawful but possibly unethical. Looking at examples of elected officials who cast doubt on the 2020 election results, the author argues that disciplinary approaches are likely to be ineffective and risk painting the profession in a partisan light. The article instead recommends joint condemnation, such as when numerous law school deans signed a statement denouncing the role that lawyers played in fomenting the unrest that led to the January 6th attack.