Lawyers are all over the media these days, many of them clearly there for the purpose of pushing a PR agenda on behalf of some client.
There is widespread agreement, for example, that Rudy Giuliani isn’t acting as the president’s lawyer so much as his flack, pursuing political and public relations strategies instead of a legal one, trying to influence public opinion rather than building a coherent case.
Other high-profile clients in crisis have taken on PR advisors, either because their lawyers have bungled communications tasks or simply because the job has gotten too large and complex for a law firm to handle.
A recent profile of crisis PR maven Michael Sitrick in the June 2 New York Times illustrates this trend. According to the Times, prominent lawyers turn to the Sitrick firm when the crisis roulette ball hits their number.
While noting that high-profile clients such as Harvey Weinstein comprise only about 10 percent of Sitrick’s crises business, the Times article makes this statement:
“One advantage to being retained by lawyers for a client rather than by the client himself is that Mr. Sitrick is technically a member of the legal team, and therefore protected by attorney-client privilege. And though he is not a lawyer, Mr. Sitrick views himself as a litigator in the court of public opinion.”
Taken at face value, this description might cause some PR practitioners to think: “Okay, I’m on the legal team—a litigator. So I’m protected. Cool! “
They would do so at their peril. Court rulings on attorney-client privilege (hereinafter known as ACP) for PR advice are all over the place, with judges making opposite rulings within six months of each other.
Nevertheless, there is a consistent principle that emerges from commentary on the case law: There must be a clear, fact-based connection between PR advice and legal strategy, demonstrating that an attorney is relying on the PR firm in order to give legal advice, just as he or she might rely on a jury consultant or a CPA.
In the Big Tobacco litigation of more than two decades ago, courts held that only discussions of legal matters were shielded by the ACP.
Lawyers (or non-lawyers) giving advice about strictly PR matters were not protected. Nor were discussions about PR in which an attorney was merely present.
It is worth noting that on June 4, according to Reuters, “Barbara Jones, the court-appointed special master reviewing the documents [seized from Trump lawyer Michael Cohen], said in the filing in Manhattan federal court that out of 291,770 items found on two phones and an iPad, she agreed with lawyers for Cohen, Trump or the Trump Organization that 148 were privileged.“
“Jones said that out of 639 items found in eight boxes of hard-copy materials, she agreed that 14 were privileged," Reuters reported.
That is a tiny fraction, and Michael Cohen is a lawyer. Can a PR person expect better?
This means that if a client asks what you think of the media coverage so far, or about a particular publication or reporter (as a certain tangerine-topped resident of 1600 Pennsylvania Avenue is wont to do), don’t expect your answer to be protected by ACP.
Obviously, crisis communication is full of unforeseen complexities, heightened by the pressure cooker of breaking news. You will need to keep your wits about you and act quickly.
If you are asked by a law firm to contract with them to represent a client, what should you do?
First, gather all the research you can on the client and the situation. If necessary, ask to meet with the client so you can see whom you are dealing with. If the law firm says NO, walk away.
Second, obtain a written agreement specifying exactly what you will do, with emphasis on facilitating legal strategy. The agreement should also cover reporting relationships, communications with the law firm and the client, and sharing confidential information. Ask if they will indemnify you against actions arising from the engagement. If they give a flat NO, walk away.
Next, consult a qualified attorney of your own choosing about the agreement and ask for an assessment of potential pitfalls and liability.
Finally, send a bill to the law firm for a large retainer, and continue to send bills regularly to establish that you are working with them.
This sort of crisis work can be a stimulating professional challenge, and you can learn a lot from working on issues with a top-drawer law firm. It can also be a giant pain in the neck and expose you to liabilities and expenses you never dreamed possible.
Go into it with your eyes open and your judgment sharp, and remember the old adage: “If you sleep with dogs, . . . .”
Bill Huey is president of Strategic Communications, a corporate communications and marketing consultancy, and author of "Carbon Man," a novel about greed.