What is argued in court differs, sometimes significantly, from what is stated in the media. Given the impossibility of divorcing the subject-matter of a lawsuit with the subject-matter of the misrepresentation in the media, bar associations must ensure that lawyers are held accountable for the veracity of out-of-court statements, particularly when the speech has the effect of subverting democratic processes. Without such regulations, the fact of a pending lawsuit will lend credibility to inaccurate, and potentially dangerous, disinformation campaigns. The damage to our democracy caused by disinformation movements is beyond the scope of this article. Instead, this article will evaluate the role of the legal profession in legitimizing disinformation campaigns regarding democratic processes.

The current method of regulating lawyer speech is ill-equipped to address the transforming role of lawyers as politically motivated actors. Lawyers’ out-of-court advocacy obscures fact and fiction by leveraging the credibility of lawsuits––even those bound for summary dismissal––to promote the spread of disinformation. When this disinformation is designed to undermine the electoral process, the bar has an obligation to address it. False speech is protected by the First Amendment, with minimal exceptions. However, a central premise underpinning the courts’ doctrinal presumption in favor of protecting lies no longer rings true: namely, that counter-speech is sufficient to nullify the harm of spreading false information. While disinformation campaigns are currently within the scope of First Amendment coverage, bar associations must contend with the role of lawyer speech in furthering the spread of disinformation harmful to our democracy. 

Grappling with this sort of conduct is precisely what the Model Rules of Professional Conduct are intended to do. The purpose of imposing lawyer discipline is to protect the public, administer justice, and ensure confidence in the legal profession. Preventing lawyers from spreading disinformation implicates all of the above. Yet, the current construction of the Model Rules impedes accountability of lawyers who spread false information. 

A minor change to the definition of “knowledge” used in the Model Rules would permit more effective enforcement. The “actual knowledge” standard present throughout the rules ought to be expanded to encompass reckless disregard for the truth. At present, the “actual knowledge” standard incentivizes lawyers to conduct little to no investigation into the veracity of their claims, for fear of triggering additional ethical obligations. Although a duty to investigate is implicit throughout the Model Rules, it currently lacks a meaningful enforcement mechanism. By incorporating “reckless disregard for the truth” into the definition of knowledge, the duty to investigate would be made explicit and binding. This slight definitional amendment would pave an avenue to prove a lawyer’s “knowledge,” because failure to investigate can serve as evidence of recklessness. 

Part I provides an overview of the current First Amendment jurisprudence regarding false speech. This section argues that, because the First Amendment generally protects untrue statements, government regulations are an improper avenue to address harmful lawyer speech. Part II discusses why the bar is better equipped to confront the shifting role of lawyers in today’s political landscape. This section discusses lawyers’ duties broadly, the bar’s existing regulations of lawyer speech, and the bar’s current unwillingness to respond to false lawyer speech. Part III proposes a minor amendment to the Model Rules of Professional Conduct to respond to the proliferation of disinformation by lawyers. Part IV discusses how the proposed regulation would survive judicial review. 

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