When you help a client involved in a crisis situation, are your communications with the client covered by attorney-client privilege? As with most complex yes-no questions, the answer is maybe. Attorneys Michael F. Buchanan and Angela Redai offer a helpful checklist of issues to consider to best protect yourself and your client:
While there are no guarantees that a court will uphold a claim of privilege, here are some steps that a company can take to improve its odds of maintaining a privilege assertion over communications with a PR firm:
- The public relations or crisis management firm should be engaged directly by outside counsel, not the client.
- The engagement letter should be carefully written by outside counsel to make clear that:
- the PR firm is working under the direction of outside counsel and reporting directly to the law firm;
- all communications between the PR firm and outside counsel and/or the client’s representatives shall be confidential and made solely for the purpose of assisting counsel in rendering legal services to the client;
- all documents and work product prepared by the PR firm are confidential and should be treated as such; and
- the PR firm has an obligation to protect the confidentiality of the information exchanged with counsel and all documents it prepares.
- To the extent practicable, communications between the client and the PR firm should be through outside counsel or in the presence of outside counsel.
- PR firms should label documents (including email traffic) as “Attorney-Client Privilege/Work Product Communications.”
- Because it is essential that the services provided by the PR firm facilitate legal advice and services, great caution should be taken to define what services the PR firm is being asked to perform.
- Careful consideration should be given to the nature of each service the PR firm is undertaking when contemplating a disclosure to it. If, in connection with a particular assignment, the PR firm is not engaged in helping outside counsel formulate legal strategy, sharing privileged information should be avoided.
- The PR firm should invoice the law firm for its services whenever possible.