Thursday, July 17, 2008

PR and Privilege

In today’s world of the 24-hour news cycle, clients confronted with business lawsuits increasingly need to win cases not only in the courtroom but also in the court of public opinion. Even a trial victory may not counteract the damage done to a client’s image, products, and stock price by negative press or the opposition’s litigation advertisements.

The ethical responsibility of attorneys to protect their clients not only in the court of law, but also their future profitability is examined in depth this week by Michele On-ja Choe of the American Bar Association. On-ja Choe examines the role of retained public relations consultants brought on board to help protect a client's reputation and counter negative media coverage.
The need for lawyers to collaborate with the client’s PR team is evident, but these interactions raise complex privilege and work-product conundrums. This article provides lawyers with a practical guide to maximizing the preservation of attorney-client communications involving PR professionals.
The complete article can be found here

We will cover this topic in depth for our August Media Masters newsletter as far as exactly what Texas attorneys need to be aware of, but to summarize the ABA's advice:

  • If a client insists on utilizing their in-house PR team to consult on litigation coverage, the safest choice is to advise the client not to allow a third-party PR consultant to participate in privileged attorney-client conversations. That means the client (and by extension, business employees at the company) should be instructed not to disclose anything to the PR consultant that they would not want to see on the front page of The New York Times.
  • If the client considers the risks and decides that the PR consultant must be privy to otherwise privileged communications,it is best an outside PR team that specializes in litigation communications be retained by the attorney. This relationship should exhibit a direct relationship between the lawyer and the PR consultant.
  • Do not retain, or discuss privileged matters with, the PR firm before the client has been served with legal process (or before any date that could arguably be deemed the date upon which litigation was first anticipated).
  • The PR firm should specialize in litigation matters or have a litigation department.
  • The PR firm an attorney hires should not have a prior, general relationship with the client that might create confusion as to what constitutes a litigation representation and what constitutes a nonlitigation assignment. If this is unavoidable, there should be internal barriers within the PR firm that segregate litigation-related business from general business.
  • The PR firm should be hired by outside counsel, not the client (although this will not guarantee treatment of its efforts as work product).
  • Outside counsel should instruct the PR firm that the firm’s purpose is solely to provide advice that will help the client obtain legal services. Explain to both the client and the PR firm that any communication between the two must occur only at counsel’s (documented) instruction. This may prevent the PR firm from providing the client with ordinary public relations advice, which may waive the privilege in many jurisdictions. Email or other written communications should be avoided, but if they are necessary, they should be accompanied by an explicit statement or header indicating that the document contains privileged attorney-client communications (and work product conducted in anticipation of litigation).
  • Designate a point person from the trial team to coordinate interaction between the client and the PR firm, to ensure vigilant adherence to the above-stated recommendations.
Special thanks to Greenberg Traurig Shareholder Allan Van Fleet for bringing this article to our attention!

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