Representatives of ExxonMobil tried to question an opposing lawyer in a climate suit by posing as reportersTwo PR strategists representing Exxon sought to ask a lawyer for three Colorado communities suing Exxon about his lawsuit against the company. Photo credit: Justin Sullivan/Getty Images

By Karen Savage

Two public relations strategists representing Exxon recently posed as journalists in an attempt to interview an attorney representing Colorado communities that are suing Exxon for climate change-related damages.

The strategists—Michael Sandoval and Matt Dempsey—are employed by FTI Consulting, a firm long linked with the oil and gas industry. They did not deny they represent Exxon. The duo are listed as writers for Western Wire, a website by the Western Energy Alliance, a regional oil and gas association that includes Exxon as a member and an Exxon executive sits on its board.

Their call to Marco Simons, general counsel for EarthRights International, who represents the city and county of Boulder and the County of San Miguel in a lawsuit the communities filed last year seeking climate damages from Exxon, potentially runs afoul of ethics rules for both the legal and public relations industries, and appeared to be a fishing expedition for information about Simons’ clients in that suit.

On the call to Simons, which was recorded and released by EarthRights, the two men pressed for an interview even though Simons quickly said he couldn’t talk to them if they represented Exxon in any way. When they evaded the question, Simons refused to comment.

Western Wire, which bills itself as the “go-to source for news, commentary and analysis on pro-growth, pro-development policies across the West,” is staffed with strategists from FTI Consulting, a public relations firm that also provides staff to Energy In Depth, a pro-fossil fuel “research, education and public outreach campaign” and a project of the Independent Petroleum Association of America. It was founded in 2009 with funding from XTO Energy, which is now an Exxon subsidiary.

Sandoval, Western Wire’s managing editor and a director at FTI, initiated the phone call to Simons. When asked, Sandoval confirmed that Western Wire is a project of Western Energy Alliance, a regional oil and gas association, and that it’s staffed “primarily by staff of FTI Consulting.”

Exxon is listed as an FTI client in the firm’s 2018 annual update to the European Union’s transparency register, a database of lobbying organizations that try to influence law-making and policy in EU institutions.

Sandoval also confirmed that FTI Consulting is under contract to the Western Energy Alliance.

Simons then asked if Exxon is a Western Energy Alliance member.

“I’m not privy to the membership of, of the Western Energy Alliance,” Sandoval said.

“OK, well it does include an executive from Exxon on its board, right?” said Simon, referring to Greg Pulliam , a public and government affairs manager for XTO Energy and longtime Exxon employee.

“Yes,” Sandoval said.

“So, I’m just assuming that Exxon’s one of its members,” Simon said. “I guess I’m just concerned from a conflicts perspective if you’re being funded by an organization that you don’t know their members, how do you, I guess, ensure … lack of conflicts from a journalistic integrity point of view?”

Sandoval then put Dempsey, an FTI Consulting colleague and opinion editor for Western Wire, on the phone to answer Simons’ questions. Dempsey is also a former spokesman for Sen. James Inhofe (R-Okla.), a renowned climate denier.

Taking a more confrontational tone, Dempsey asked Simons if his interest in Exxon’s membership is as a lawyer representing Boulder or for his own personal information.

“We’re ready to proceed on an interview about the case, but if this is something else, we need to know that now,” said Dempsey, adding that he contacted Simons at the request of the City of Boulder.

Simons reiterated his position.

“What I’m saying is that if you’re representatives of Exxon in any fashion, I can’t talk to you about the litigation as an ethical matter because Exxon is represented by counsel, and I can only talk to their counsel,” Simons said.

Dempsey did not deny representing Exxon and instead questioned Simons’ statement.

“You say you have a conflict in speaking with Western Wire, but that you do not have a conflict in speaking with InsideClimate News, or with Climate Liability News,” Dempsey said.

Simons again said he had a conflict with Western Wire only if the organization was representing Exxon in any way, something neither Dempsey nor Sandoval denied.

Dempsey persisted in the same line of questioning and Simons repeatedly said he could not comment since the two were Exxon representatives.

“I cannot comment about this litigation unless you can tell me that you are not representatives in any way of Exxon,” Simons said.

Dempsey declined to answer and then ended the phone call.

Skirting the Rules?

Ethics rule prohibit lawyers from speaking to people who represent their opponents in a lawsuit, said Jane Kirtley, director of the Silha Center for the Study of Media Ethics and Law at the University of Minnesota Law School, who reviewed the audio and transcript of the call.

“The burden is on the attorney,” Kirtley said. “That attorney is not supposed to be talking to individuals who are represented by another lawyer without that other lawyer being present. That’s the rule.”

“The concern for the lawyer would be, if I’m basically being tricked into talking to this person, am I violating ethics rules without knowing that I am?” she said.

Kirtley said the tactic is known as a sock puppet: one side trying to get information through unusual measures they might not get through pretrial discovery. She said a court could impose sanctions for trying to get around the rules of discovery during active litigation.  

Dempsey said he contacted Simons after being referred to him by the City of Boulder.

“Western Wire contacted the City of Boulder, which we have done on numerous occasions over the past year as part of our reporting, and this time around, the local communications person for Boulder referred us to EarthRights International,” Dempsey said in a phone interview with Climate Liability News.

A spokesperson for the City of Boulder said the city refers all media inquiries related to its climate suit to EarthRights.

While contact between plaintiffs and defendants is allowed during litigation, both sides should disclose who they are representing, Simons said. He said he does not know the details of Exxon’s involvement in Western Wire, but the two PR representatives should have disclosed it.

“I have some pretty serious general ethical concerns if people who are representatives of Exxon are contacting the City of Boulder without disclosing that they’re representatives of Exxon and talking about the litigation,” Simons said. “I think that is the root of the problem here.”

Exxon did not respond to a request for comment.

The incident seems to fall in line with a wider effort by Exxon to discredit the effort to bring climate liability suits. The company has so far unsuccessfully tried to sue to stop two states from investigating it for climate fraud and it has filed suit in Texas against several California communities that have sued the oil giant, asking to investigate a possible “conspiracy” between the communities and the legal firms aiding them. In Dempsey’s questioning of Simons, he attempted to ask whether Simons had spoken to CLN or InsideClimate News, two nonprofit journalism organizations he said receive funding from the Rockefeller Brothers Fund, which Exxon has accused of being part of the conspiracy against it.

More Ethical Questions

Kirtley said the incident reminds her of astroturfing, a practice where public relations firms appear to represent grassroots citizen activists and not a corporate interest.

“If you’ve come from a strategic communications background where somebody says that’s an acceptable thing to do, then it’s really only one more step to say why don’t we appear to be citizen activists, why don’t we appear to be journalists,” Kirtley said.

“It sounds like these individuals are actually public relations, strategic communications types, that seems to be what their real job is,” she said, adding that falsely claiming to be journalists is unethical, but not against the law.

“But of course, then the question becomes ‘whose ethics are we talking about?’ These people are not journalists, they’re not bound by journalistic ethics, so the question becomes would the Public Relations Society of America or someone say that’s unethical” Kirtley said.

Debra Peterson, national chair of the Public Relations Society of America (PRSA), said ethical practice is the most important obligation of its members.

“Our ethics code has a provision regarding disclosure of information, which requires members to be honest and accurate in all of their communications, avoid deceptive practices, and reveal the sponsors for causes and interests,” Peterson said in a statement.

A spokesperson for PRSA confirmed that some employees of FTI Consulting are members of the association.

Kirtley said it’s unclear what, if any, impact the incident will have on Boulder’s climate lawsuit, which is still in the early stages.

“There’s nothing here that suggests a violation of criminal law at this stage, but it does raise ethical concerns, certainly for the lawyers involved.”

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