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.
2 thoughts on “Are Your Crisis Efforts Protected by Attorney-Client Privilege?”
I led the in-house team for a very high profile crisis response after my company was sued for “deceptive marketing practices.” Thankfully, we were able to get the case to move out of the media spotlight quickly. I can say that our CLO was my new best friend through the entire process. He was on every call with our agency. The agency we hired had a specialty in crisis comms and had a lawyer on staff. I would recommend if you work on the agency side and you really want to get involved in crisis PR that you have someone you trust on stand-by. If you work with an agency, make sure they have a lawyer available to you, even if you have your own in-house counsel.
We followed all the rules stated above. The PR problem of working with counsel is they want all evidence to stay with a tight lid on it until — or to avoid trial — and you’re trying to fight off the court of public opinion.
My best advice is that before you do any of this, which are great rules, you need to set ground rules on what it is you absolutely won’t do and what you absolutely have to accomplish with your PR efforts. In times of crisis, emotions run high (I’ve also worked on crisis comms where people have died) and going back to those ground rules repeatedly really helps you decide how best to move forward. Emotions are high and there will be strong opinions from many angles. It’s good to go back to a set of values and “we can’t disclose because it’s illegal for us to say” statements. You don’t have time to think so you just have to move. Maintaining your client’s or your company’s integrity is job one. Those ground rules help set the tone for the communications.
Thanks, Marie. Great thoughts. At the end of the day, lawyers want to make sure a company isn’t sued out of business, but a company that loses the trust of its customers will go out of business just as fast (or faster).