Preserving attorney-client privilege in retaining PR counsel

Work product generated from a public relations agency may or may not be protected under attorney-client privilege.  Recently, a judge in New York (United States District Court for the Southern District of New York) ordered documents given to Calvin Klein's (CK) PR firm by CK's lawyers that contained information related to a lawsuit with a licensee.

The PR firm was retained to manage the media and manage the message during the litigation to protect the CK label from negative publicity surrounding the trademark litigation.

Despite this ruling, there are steps you can take to make sure you are protected.  Steps such as:

• Have your legal counsel retain the firm
• Have communications from your PR counsel directed to your legal counsel
• Label all communications “Attorney-Client Privileged”
• Retain a media savvy lawyer to assist in the messaging in and out of court.

The sands have shifted in the practice of law

Gone are the days when clients were only concerned about the legal ramifications of a lawsuit or legal quagmire.  Today, clients are often also concerned with how they are judged in the public eye and perceived by their customers, vendors and by their own families.

In protecting a client’s reputation, “an attorney’s duties do not begin inside the courtroom door -- he or she cannot ignore the practical implications of a legal proceeding for the client.”[i]  An attorney should take reasonable steps to defend a client’s reputation.

This is particularly important in an environment where news is reported “24/7” and at times even delivered instantaneously to our cell phones.  Likewise, with sales of newspapers and magazines at all-time lows, the media is hungry for a story even if no story really exists. Therefore, lawyers must be more diligent in looking at the big picture in protecting their clients’ interests in the court of law as well as in the court of public opinion.

[i] Gentile v State Bar of Nevada (Kennedy opinion), 510 US 1030, 1043 (1991).

When your reputation is on the line

High-profile litigation involves not just the defense of the legal claim but also the protection of the client’s public image.  The normal orientation of defense counsel is toward protecting information from disclosure, but where a case has aroused public or media interest, a narrow focus on preventing disclosure can have broad negative effects outside the scope of the litigation itself.  In cases of that type it is wise for defense counsel to retain public relations counsel to assist with the public relations aspects of the defense.  Public relations counsel can coordinate public relations efforts with defense counsel in a way that helps to protect the client’s public reputation without jeopardizing the attorney client privilege.

Retaining public relations counsel

[Part 2 - Litigation Communications]

The attorney-client privilege is generally preserved in retaining public relations counsel during the course of litigation.  However, it helps when your public relations counsel also happens to be a licensed attorney.  In fact, public relations seems to be a popular alternative career for attorneys.  In any event, defense counsel should exercise care to ensure that any privilege is preserved.  It also is preferable that the public relations firm be retained by and report to defense counsel rather than the client.  This will help in mounting a coordinated defense and also help to preserve attorney-client privilege by ensuring that all communications pass through defense counsel.

Likewise, public relations counsel should include defense counsel in all stages of communication and consult closely with defense counsel in developing key messages to make sure it complements the legal strategy rather than puts it in jeopardy.  Defense counsel should be present during any conferences involving public relations counsel and the client.

Given the stakes in today’s litigation environment, defense counsel may find it helpful to develop a relationship with a public relations firm, so that it can be ready to assist on short notice if and when it is needed.  For example, some public relations firms are known for their expertise in crisis and reputation management while others focus more on soft promotions and publicist work.  Some public relations firms focus specifically on litigation communications practice, and even have attorneys and registered lobbyists on staff.

Many of the larger law firms have a chief marketing officer that they can rely upon for initial help or guidance, while others have already retained a public relations firm to assist with matters that are beyond the routine. In any event, defense counsel should look for a public relations firm that has relationships with the media, both local and national, on-line, in-print and on-the-air.

In preparing for litigation or creating a legal strategy to meet a clients objectives attorneys must consider the impact on their client’s businesses and reputations.  Reputations take years to create and only seconds to destroy.  Engaging public relations counsel early can create a comprehensive strategy that will help clients – and defense counsel -- succeed.