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.

Today’s legal strategies demand public relations

PR as part of the legal strategy - [Litigation Communications Part 4]

Today’s business environment demands an aggressive strategy to resolve issues legally while protecting one’s reputation publicly.  As a result, lawyers need to be more than legal counselors or advocates.  They need to be familiar enough with how perception is created within the public eye and how to use the media effectively to manage that perception.  Therefore, the potential impact any litigation will have on a client’s image, reputation, investor relations and future business must be considered in creating a legal strategy.

To protect a client’s legal interests and also to preserve the client’s reputation publicly in a high-profile case, defense counsel should consider engaging public relations counsel early in the process, so as to develop a complementary strategy and get advice on how to deal with the media and protect the client’s public relations interests.  In developing a broad defense strategy that embraces both legal and public relations concerns, lawyers need to look beyond the facts and include public relations concerns as a comprehensive defense.  Public relations counsel can assist defense counsel by managing the public relations issues while defense counsel focuses on the traditional elements of mounting a defense.  If both the legal and the public relations components are to succeed, it is essential that defense counsel and public relations counsel coordinate their efforts.

Protecting a client’s reputation

[Litigation Communications Part 3]

A lawyer who is going to represent a client outside the courtroom must become more comfortable in talking freely about their client’s case.  Lawyers, trained to protect client confidences and to control information, have a natural tendency to answer only the questions that are asked and to give no more information than is necessary to resolve the issue.  In the view of the public, however, information and communication are the two factors that build trust and go a long way toward preserving one’s reputation.

A public relations counselor can employ specific tactics to protect the reputation of a company or an individual leading a company while reinforcing issues legally.  For example, in the public eye, we are presumed guilty if we respond to a reporter’s question with “no comment.”  A better way to respond to a question you do not want to answer or are not ready to answer is to deflect it, by saying something like: “That is a very good question, one that we are looking into at the moment.  As soon as we learn something new, we will get back to you promptly.”

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.

Lessons from the Obama Campaign for all Parties

Candidates in this election cycle can still take a few pages from the President's campaign playbook that helped him build a brand that connected with voters, such as:

1. Develop a consistent message. One that strikes a chord with the public, such as, Change, Re-invent, or Believe.
2. Have a rallying call – Your message should I part, engage the voter and give them something to use as they build support for you, such as:  Yes We Can.
3. Offer solutions.  A campaign is a great opportunity to suggest solutions to improving the status quo and why you are the better candidate.  Offering solutions instead of going negative will help you stand out from the other candidates.
4. What do we stand for. At the end of the day, based on your messaging, behavior and performance, the voter should be able to identify you with your issues and know what you will focus on once elected. 

Litigation Communications - An Introduction

First in a series --

When legal problems become PR problems it is vital to act quickly, decisively in order to establish credibility and protect your clients’ brand, reputation and business relationships. To meet the challenge demands of today’s economic and technological realities, attorneys must develop relationships with the media and PR professionals who can help them weigh the legal, PR, public policy risk and ramifications that legal questions raise.

For example, Orrick helps clients weigh their legal problems from a range of disciplines including PR and public policy.

Lawsuits today affect more than a company.  It affects share value, product reputation, brand reputation, individual reputation.  Therefore Litigation strategies must take into account the potential impact it will have on a company’s reputation.  Lawsuits no longer tried exclusively in the courtroom i.e. customers and shareholders now sit in judgment along with juries.

Litigation starts well before a case is ever filed.  New skills for next generation of lawyers. Media savvy attorneys begin with the pre-trial community and it ends long after a judge renders a verdict.

Today’s legal market demands a broad range of business solutions lawyers can provide their clients and a strategic communications plan can prove to be an extremely helpful tool your firm can provide. For example, in today’s 24/7 media culture, companies lack access and lack control to the media who cover their industry and to the people that talk about them on-line.

Elements to a legal problem:

1. Public concerns
2. Issues management
3. Preemptive legislation
4. Litigation communication
5. Relationship management

Today’s communications plans must be objective, flexible and discrete.  Great campaigns are strategic, have a well-defined goal, are targeted and provide results that stand-out.  Each business problem should be approached with a public relations, backed by solid research to build the strategy, sprinkle it with a heavy dose of creativity and efficient use of funding

In today’s competitive market, there is a great demand for high level, experienced communications executives who demonstrate the ability to reason; analyze and solve business problems to help retain clients, develop new business and help their business stand out from their competitors.

Companies today are facing increasing challenges from regulatory and legislative authorities.  Likewise, high profile white collar defendants now draw the same intense media coverage as drunken movie stars and athletes who are accused of steroid use.  Like movie stars and athletes, business executives in trouble aren’t just calling their lawyer.  They are hiring public relations firms in hopes of salvaging their name and saving their corporate reputation.

Defending clients in the public arena differs tremendously from a court of law.  For example, the rules of evidence do not apply.  And in the public’s eye, we are presumed guilty while innocent when justice is blind.  Therefore, when the damage is done publicly the legal outcome becomes irrelevant.

It is time candidates engage the voter

While campaigns are a time for the voters to get to know the candidates, it is also the chance for the candidates to get to know the voters.

Sure they take their polls to see where the "pulse" is, but perhaps campaigns should be more of a listening tour, debates more like gripe sessions and elections about the people who listened best.  

Effective listening provides a roadmap for creating key messages that form the basis of a solid agenda and a plan for deploying the necessary resources to create a solid plan for moving forward.

We need to listen harder...Who will be interested in talking with us?...What are they interested in talking about?...Where and on what terms would they like to comment and become engaged.

Then, once we listen, we can participate in the conversation, share ideas, collaborate and otherwise engage each other in creating a community once again.

I know that campaigns and elections are really about politics, personalities and egos, but it also should be about public engagement, open advocacy and honesty with ourselves as to the direction we must go to move our nation / state forward.

These are the principles for 'public engagement,' created by Endleman PR.  Their philosophy of "advanced shared interests in a world of cross-influence."

Leadership is in part about "embracing chaos" for the "public good." Similarly, public opinion not only helps create chaos, it helps resolve it.

In this election, both Democrats and Republicans need to identify their key influencers, engage them and use their stories to influence untraditional voters that their party’s vision is the better one. 

Creating a movement

In 2011, we saw people protesting in the streets of Egypt, Syria and Libya demanding change, while others occupied Wall Street, Oakland, San Francisco, Detroit and other cities throughout America,. For a movement to succeed, those involved, should have a desire for progress through action, change through collaboration and growth by working together.  For any movement to succeed, it needs a vision and the leadership necessary to carry out that vision.  

As candidates prepare to run for election or reelection in 2014, they need to create a vision to rally their supporters around and suggest a plan of action once they are elected.  Campaigns are no doubt political, but for today’s voter, candidates need to offer voters something more than just the same old negative campaigning.

Business and individuals today need stability. They need to know that what and whom they invest in will be around for a while to help them move forward. The challenge both Democrats and Republicans will have in this election is communicating a vision to help create that movement the activists tried to create in 2011.

Perhaps each party should try something new, something bold and rise above the politics and personalities and start focusing on the issues where everyone can agree. Democrats or Republicans can agree to disagree, but both must start making policy through consensus. While that message may not win elections, it will start the discussion to drive change in the state and in Washington. 

Are we listening to Democrats?

Not with the messages handed-out by Democrats in Michigan. With so much going on in this state, from crumbling infrastructure under a harsh winter to a new vibe in Detroit and tremendous growth in Grand Rapids, you would think there is a rare opportunity for Democrats to share with voters what they stand for instead of whom they stand against. 

Unfortunately, I received two emails last week from Democrats that told me they want to play politics as usual. 

Each message was a solicitation:

Subject:  Dems $6 for 6 seats

I know we have asked for a lot lately, but only because the stakes are so very high for our state. Please chip in $6 for 6 seats in November. The deadline is tonight at Midnight and 231 donors have given so far, so your $6 donation could be the one that puts us over the top to our goal of 250 donors. Tim - Sent from my iPhone.

Then minutes later, I received a similar message:

“This will be the last update you get from us for a while because our deadline is tonight at Midnight. We know that you have not given yet, but we are just 28 donations from our goal so your donation could make the difference. Please chip in $6 or whatever you can to help us hit our goal by the Midnight deadline. Thanks, Sam”

With each message, the Democrats missed a rare opportunity to engage a prospective donor and voter in why they should support them. Each time they failed to create an emotional connection and failed to educate them on what issues they stand for or stand for advancing.

With the above messages, as someone who may make a contribution, I want to know:

• Why are those six seats important?
• Where are those six seats?
• Who is running? 

I need something more before making that investment, even for $6. I also don’t like the negative messaging. The timing of these messages did not fit the news cycle, just a political calendar. At the time, the Legislature was voting on spending bills that focused on infrastructure, the U.S. District Court (Eastern District) was preparing to hear a landmark case on equal and civil rights dealing with the rights of same-sex couples and the UAW was just recovering from difficult challenges in the South – Issues, that Democrats do have a leg to stand on. Issues that they could engage me better on as to what they plan on doing about it and why I should care.

Yet, this week the Chair of the House Ways and Means Committee announced a major tax proposal while the state is also considering major changes to state tax laws. The President also released his Budget with funding to help those living in poverty, to help restore and protect the Great Lakes and to help enhance our aging roads and bridges. Yet, this week, the Democrats were silent and I did not receive a solicitation.

I recall a time that I sat in the Lansing office of a former chair of the Michigan Democratic Party and asked if I can help create a vision for Michigan Democrats and a strategic plan for each caucus to take back to their district that would work to create a movement or engage others in why they should support Democrats. At the time, the Chairman pointed out his window, towards the state capitol with the House and Senate controlled by Republicans, and said, “You see that building, our message is against, whatever they are for.”

If Democrats are to make gains in 2014, they need a vision.  Their message needs to be strategic, coordinated and engaging.  Today, there is no such thing as politics as usual. People are no longer voting based on a D or an R behind ones name. To help those running for office, Democrats and Republicans alike, need to figure out, what they stand for and then arm their caucus with the tools and resources to broadcast and share that message in a way that will resonate with the voter.  It is time to end the politics and focus on the policy as a way to engage voters. 

5 tips in creating a social media policy

The use of social media, such as Facebook, Twitter, LinkedIn, Instagram, Pinterest, YouTube, Vimeo and others has increased in the workplace and for corporate use. In fact, social media has become a vital tool in promoting a company, securing leads and developing relationships. However, as the lines begin to blur between social media for private use as an individual or public use as an employee, companies must begin to manage the risks involved in increased social media usage. Zappos, the online shoe company has a simple policy, " Be real and use your best judgement." While others may not be that simple, here are five tips to get you started:

1. Protect intellectual property. Never place proprietary information on-line.
2. Respect copyrights and fair use. Always give people proper credit for their work and make you have permission to publish something.
3. Be responsible for what you write. Avoid language that could be considered defamatory, harassing or indecent. Before you hit send, ask, "Do I want my mom to see this?"
4. Bring value to the discussion.To build a following you need to bring something to the table so make your contribution significant and meaningful.
5. Be open, honest and authentic. Include your name, if appropriate the company and make statements in complete disclosure of any potential bias.

Every company will have an issue with employees using social media or even their customers using it and we must all be a bit smarter in terms of what we should do and what we should not do while using it. 

Respond to a crisis. Don’t react.

It does not matter if it is an employee-error, high profile litigation, government investigation or industrial accident, if something happens a response needs to be immediate, decisive and strategic.

When faced with a crisis, damage to a company or individual’s reputation can be devastating.  Business executives must be ready to respond to protect their reputation, employees, shareholder and brand.

To prevent a crisis it is always helpful to be prepared and have a plan in place however, there are many companies who fail to plan for potential crises.  Consequently, many companies react to a crisis rather than respond.

When companies react they are most likely not thinking through the impact of their response and action in leading to that response. At a minimum then, companies should have a public relations firm on retainer or at least on the tip of their mind when something happens. 

It is our identity

Voters in several Michigan communities turned down an opportunity to merge their governments last year.  Not because it did not make financial sense, but by merging one community would loose their identity.  According to a recent article in Bridge Magazine, voters in Onekema Village (Mich.) voted against merging with neighboring Onekema Township and voters in Douglas, Mich. voted against merging with Saugatuck. The opportunity to identify with your community outweighed the chance to save money and create a more efficient government.  The same result occurred a decade earlier, according to The Bridge, when in 1993, voters rejected rejected a proposal to consolidate the Village of Spring Lake, Mich. with Ferrysburg and in 2006, when voters in Grand Blanc, just outside of Flint, Mich. rejected a proposal to merge with Grand Blanc Township.

Identify is extremely important to people and being able to identify with your community is something we are very proud of. In bringing the issue of government consolidations or mergers it is important for government leaders to engage their constituents and have them drive the discussion as to what they would support and why.

Stakeholder engagement is important to any successful merger. Without it you move alone without the support of the constituency you need most.

What's your kid on?

As a marketing professional I am always trying to stay on top of new technologies or systems for clients to take advantage of. One great test market are teens and tweens. Today kids text more than they tweet, and they talk more than they post. However, parents are giving their children smart phones and tablets at a younger age each year and it is become harder and harder to stay on top of how quickly they adapt to new technologies. 

So what are your kids on?

According to AdWeek (February 3, 2014), our kids are on their phones or tablets sending messages to their friends, using a variety of resources.  This month. this includes: 

• Texting
  • WhatsApp
  • Kik, Line, WeChat 
• Social Sharing
  • Jelly 
  • Whisper
• Photo
  • Snapchat
• Voice & Video
  • Tango
• Gaming
  • QuizUp

With so many new technologies emerging and so many ways for our children to access them, it is important as parents to monitor our children's mobile, social and web activity. It is important for parents to talk with their children and set expectations for their use -- no matter their age, from 1-21. As parents we should have access to their apps and be able to monitor them on a regular, if not real time basis. 

As a marketer, it is important to stay on top of these new technologies to advise companies on how to best manage their marketing budget. Just as people are starting to get comfortable with Facebook, Twitter and Instagram, new sites and apps are popping up. For companies, it is important to know where your customers are and what they are reading and visiting so you know where to invest your marketing budget. 

As parents and professionals it is important to stay on top of new and emerging trends, technologies and platforms to help broadcast our messages and protect our children.

Is the media industry in a state of panic?

Last week, The Patch laid off a majority of its local editors, bringing an end to great coverage of local events and community news that are dailies were just not covering. But AOL's venture was not making money and the new owners decided they wanted to go in a new direction. 

Also last week, Ezra Klein left The Washington Post after pitching a new business idea, that Post was not interested in but Vox Media was. Days later, The Washington Post announced it was going to expand its newsroom and hire more reporters to cover the world of politics, more photo editors, data visualization specialists, news desk staff and web designers among others. 

These moves, reinforce that the media industry remains in flux and until we have a better handle on how people like to get their news and how advertisers want to position their products, we will continue to see the media market evolve and try to reinvent itself, over and over again. 

Like the media, the public relations industry must also continue to evolve to remain relevant. We need to stay on top of emerging trends, where reporters are moving too and how we can work to best position our client's in the media that matters to them. Perhaps that is working to bolster our client's on-line presence and treating our clients as a media company, directing traffic and attention to their site rather than constantly pitching new stories. However, it depends on our client's budget and how we can best work to promote the issues and products they want to position in the marketplace. 

If I were the Mayor of Detroit

Detroit in Transition – A plan to move Detroit Forward (Part 8 of 8)

If I were the mayor of Detroit, I would take every day to highlight a city department or agency, celebrate a city employee, eat in a Detroit restaurant and shop locally. Every day is a day to celebrate what works in Detroit, while drawing the public’s attention to what can work better.

Our new mayor has his challenges. But with the support of the people of Detroit, the State of Michigan and Michigan’s Congressional delegation behind his vision, than we can get it down together.

*This concludes our series on Detroit in Transition and a roadmap for moving Detroit Forward.

Detroit Skyline from Windsor, Ont.

When chemicals spill or things explode - Respond, don't React

Crises happen!  In the past few weeks, we have seen a chemical spill that cut off tap water for 300,000 West Virginians and a cruise line that had to cut its trip short after nearly 700 passengers and crew fell ill with vomiting and diarrhea.’ 

And the best way to deal with a crisis is to plan for it so it can be prevented or at least any potential damage caused by whatever the crisis is, minimized.   However, if you don’t plan for a crisis, and we can prepare for everything, here are a few tips to remember, no matter what:

The Response

When a crises occur your team needs to quickly assess the facts and determine the best response given the situation.  For the company and government in West Virginia, the response should have been immediate. But in some instances the response should be not respond at all – Especially if it is over social media. Proper monitoring should flag anything to be concerned about on line and in real-time. But just because someone posts something about you, your company or your CEO does not mean you have to respond, in fact, you shouldn’t. You don’t want to start a debate on line and feed a discussion that could potentially be more damaging than just one post.

The response in West Virginia should have been direct and done in person.  The response for the cruise line should have been through statements, press releases and on a website.

Who speaks for you?

The CEO may not always be the best person to respond to a crisis. It really depends on the issue, but perhaps there is someone else that should respond or at least has more knowledge to thoughtfully respond. This could be a front-line employee or someone with direct experience with the issue.   Many people want to hear directly from the CEO, so have the CEO be prepared but be prepared to find another spokesperson.

In the case of the chemical spill, the Governor and Mayors of the affected communities should be the face of the solution holding those responsible for the spill accountable. The CEO of the company involved should also be the public face, attending press conferences and town halls. In the case of the cruise line, any statement should be from the CEO.

What do lawyers know about your reputation? 

Don’t let your team of lawyers have the final say on how you communicate external messages. From the beginning, even before a crisis occurs, the legal and marketing departments should meet frequently to foster a solid working relationship and understanding of what each other does. Messages should also be shared with legal and often have legal sign off on statements. But the liability concerns a lawyer may typically have should not prevent a company from dealing with the issue directly and otherwise jeopardize the company’s reputation. Limiting a response may open yourself to more questions and further expose you to reputational risk.

 The bottom line

When an event occurs, you need to respond promptly, effectively and efficiently.  But before anything happens, a company should set up a monitoring system to mind the chatter, engage your employees and service your customers to prevent or preempt something from happening. In addition, a company should have a rapid response plan in place should something happen.

And finally, the best way to limit your risk to is know where you are weak and where crises may emerge – and then to plan accordingly. 

Detroit in Transition - Jobs

Detroit in Transition – A plan to move Detroit Forward (Part 7 of 8)

Thousands of people are looking for jobs in Detroit but don’t have the basic skills to fulfill those jobs.  However, there are many Detroiters who want to work but don’t want the training because they need the cash now to support themselves and their families.

In addition, thousands more children are looking for work.  The new mayor must find ways to enrich the lives of Detroit’s children, with jobs, community services, enrichment programs and other extracurricular activity.  The Mayor should have a Children’s Summit and bring together Detroit’s labor and business community, local churches and mosques, community colleges and universities and local and national nonprofits such as the YMCA, the Boys and Girls Club and corporate foundations to help train young people for jobs that do not yet exist, find employment for young people and outlets for after school programs and other extra curricular activity

Access to health care, in Detroit

Detroit in Transition – A plan to move Detroit Forward (Part 6 of 8)

Despite world-class health systems in the city of Detroit, the city must work to expand access to medical care and work to increase funding for Detroit’s Federally Qualified Health Centers (FQHC). 

Why join?

We join associations for a reason:

• To access their benefits e.g. health care or office supplies.
• To network and gain new business.
• To be a part of something positive

For lawyers, to practice law in the State of Michigan, you must be a member of The State Bar of Michigan. In full disclosure, I am an elected member of the Representative Assembly to the State Bar. 

Organizations pass policies that not all their members will agree on.  Even though those polices may be counter to one's own positions, it is important that an organization's members voices be heard and considered in crafting that position. 

For the State Bar of Michigan, there are many positions the Bar takes that not all of its members will agree on. One issue I think most attorneys can agree on, is an organization that will be the standard-bearer of ethics, to hold lawyers accountable for their actions or a place for lawyers to turn to if necessary.   See Bill would make State Bar membership dues optional in Michigan, Detroit News.