Public relations professionals thrive on information dissemination. It’s our currency.
Attorneys, on the other hand, thrive on confidentiality. It’s their currency.
This is a particularly acute difference when it comes to attorney-client privilege, privileged communications and privileged/attorney work product.
In a world where public relations issues can have legal implications, and vice versa, how do PR professionals and attorneys collaborate? Each party must understand the other’s needs and currency. But the heavier burden falls on the PR pros’ shoulders since what they do can jeopardize privilege and perhaps the entire legal strategy.
More is being written on the subject of PR and legal counsel by both sides. A paper on the National Association of College and University Attorneys Web site says, “Both lawyers and public relations professionals often have access to confidential information, and they can hold different views on the appropriateness and timeliness of releasing it” (“Public Relations and Legal Counsel: Working Effectively Together,” March 1997).
PR pros give out information , especially to the media , creating credibility in part by avoiding the appearance that there is something to hide. In a legal situation, this can cause distress for attorneys, as they need to protect information, release it only when it suits the legal strategy, and release it only to people who must have it.
Inappropriate disclosure can result in unintentional waiver of attorney-client privilege that can expand far beyond the information in question.
The intent of privilege is to protect the client while he or she openly shares information with counsel. It can be strictly defined and interpreted in a court of law and is carefully protected by attorneys.
– Privilege Between Attorneys, Clients
Privilege extends to other attorneys involved in the matter, consultants and experts hired by the attorneys to work on the matter, and, in a business matter, to managers and key personnel who are also the client.
When a PR pro is included in a legal conference, it raises privilege concerns. Excluding PR pros, however, can jeopardize public perception of the client. Ideally, the attorney will include the PR pro and set the boundaries for maintaining privilege.
Since privilege extends to work product , anything prepared by or for attorneys preparing for trial , a PR work product, such as a plan, strategy or other document relating to a legal matter, is protected. But communication about it must be severely limited.
Here are some actions PR pros and attorneys can use to address the court of law and the court of public opinion at the same time without jeopardizing privilege.
Have the attorney hire the outside PR professional. Anything the PR pro does at the direction of the attorney is privileged work product. When a company has PR staff, they are part of the client, but still should only discuss the matter with the attorney present.
– Let Attorney Direct The Work
Don’t let the PR pro meet with the client alone. When a PR pro meets with the client, it is not protected unless the client’s attorney is present. This can extend to a conference call. When the attorney is present, it is a meeting between client and attorney.
Have the attorney direct the PR work. To maintain work product privilege, according to PR industry expert James Lukaszewski, the PR pro should work at the attorney’s direction and supervision, set up separate, and possibly locked files, limit access to the work, and mark documents “privileged and confidential: attorney work product.” Make sure to copy all such documents to the attorney.
Label documents as work product sparingly. If every single PR document is stamped “privileged and confidential,” it could be construed as indiscriminate and not done with legal direction. That can result in unintentional waiver of privilege and then all PR documents can be discoverable.
Don’t share or discuss documents outside the team. If you share a document or discuss a matter with any third party, you jeopardize privilege. This is a concern for PR pros who rely on junior staff assistance. In a legal situation, information must be closely held and work should be done by the PR pro who is meeting with the attorney.
Follow the attorney’s lead and direction. The PR pro may think he or she knows how to manage public perception, and probably does. But the attorney is responsible for the success of the case. In a legal situation, do what the attorney says. Debate may be appropriate, but the attorney must have the ultimate say in protecting information.
In 1996 and 1997, at the height of the big tobacco companies’ lawsuits, questions arose about the confidentiality of the companies’ documents.
– Creating Strategies Vs. Giving Counsel
According to an article in the Boston Globe (“Tobacco lawyers’ role: Counsel or cover-up?” Dec. 28, 1997), attorneys were seen as having crafted public relations strategies, rather than giving counsel and therefore sacrificing privilege.
Another issue was that the companies had been placing attorneys on public relations and other operations committees. The perception was that this was done to shroud activities in secrecy and “two state court decisions peeled back the cloak of confidentiality (on) thousands of documents.”
The outcome was expensive in the extreme.
In 1995, Dorf & Stanton, a public relations firm, refused to produce notes taken during a client meeting with the attorney present. The U.S. District Court for the Southern District of New York ruled that these could not be withheld. On appeal, the U.S. Court of Appeals ratified that decision for the federal circuit. The appellate court confirmed that the notes were not privileged and added that the firm had waived privilege as a result of other actions.
That should chill compulsive note-takers.
In a legal matter, the expert is the attorney , period. The PR pro should ask lots of questions, think about ramifications and exercise caution.
When called about working on a legal matter, I find out if the attorney approves. I ask to meet with the attorney right away and communicate to him or her as much as possible.
The potential risks are too great for a PR pro to think he or she knows enough about law not to jeopardize privilege. And the outcome of the case could well rest on privileged information. To lose privilege is to risk losing it all.
MacCracken is principal of Strategic Communications (www.strategic-communications.com), a local public relations consultancy.
