ANALYSIS: Litigation PR - Could what you spin be used against you?/It’s an area that many PR agencies have become involved in. But the minefield of litigation PR threatens to blow up at the slightest provocation. Why is this such a hot area, and h

Watch what you say. And what you write. The behind-the-scenes work typically done by PR pros is not necessarily as private as you might think, particularly when done on behalf of clients involved in lawsuits.

Watch what you say. And what you write. The behind-the-scenes work typically done by PR pros is not necessarily as private as you might think, particularly when done on behalf of clients involved in lawsuits.

Watch what you say. And what you write. The behind-the-scenes work

typically done by PR pros is not necessarily as private as you might

think, particularly when done on behalf of clients involved in

lawsuits.



When Boston PR firm Morrissey & Co. was recently subpoenaed for

violating a gag order in the legal battle between Donna Harris-Lewis -

widow of deceased Boston Celtics star Reggie Lewis - and Lewis’ chief

cardiologist, Dr. Gilbert Mudge Jr., it brought to light the potential

dangers of litigation PR. While the Morrissey case is rare, there are

plenty of other litigation issues that agencies face.



’Lawyers in litigation are always looking for any new information to

shed light on an opponent’s position, and they look to see whether

there’s information in PR plans that has not come to their attention,’

says Frank Hamsher, SVP/partner at Fleishman-Hillard.



GCI Group’s PR plans were recently exposed when it provided litigation

support to a small hi-tech company called Bristol Technologies, which

sued Microsoft for anti-competitive business practices.



’One of the things we learned is that everything you do on the PR side

is very discoverable,’ says SVP Aaron Kwittken. ’Microsoft got copies of

all of our plans, even those that we’d marked privileged and

confidential, and tried to leak them to the press.’ And because those

documents had been sent over e-mail, they weren’t considered

confidential.



Keeping it legal



Jim Cox, head of GCI’s North American corporate practice, says press

releases can also undergo scrutiny in the courtroom. ’If we write things

in a news release that go beyond what was covered in the courtroom, we

risk libel,’ says Cox. ’We stay very close to the legal language and

quote pretty heavily from it.’



Even changing one word can result in a lengthy discussion of semantics,

as Jonathan Holt, chairman of Holt & Ross in Bridgewater, NJ,

discovered.



Holt says the agency, which works with companies involved in

environmental issues, had to defend itself for changing the word ’toxic’

to ’hazardous’ in a press release.



’Be very wary of what you commit to paper and try to keep all

conversations verbal,’ advises Kwittken. ’If you can’t stomach seeing it

in The New York Times, just say it, don’t write it.’ PR pros also

recommended working extremely closely with the lawyers in the case, and

many firms even employ attorneys in their litigation divisions. Agencies

such as GCI Group and Hill & Knowlton also work with a network of former

attorneys general, who help endorse a client’s rights and position.



Despite the hazards involved in litigation PR, it is a new burgeoning

field. ’This whole field didn’t exist three to five years ago,’ says

Neil Hartigan, former attorney general of Illinois and an attorney at

McDermott, Will & Emery in Chicago. ’There was some litigation PR, but

the degree to which the major shops put teams together and marketed the

concept is pretty much new in the last couple of years.’



So why are more agencies drawn to this area? PR pros tout the need for

reputation management services in an era where cases are tried in the

court of public opinion before they even reach the courtroom. ’Every day

that goes by, a company loses more and more credibility and trust,’ says

Hartigan, who says that the impact of instantaneous Internet

communication can be devastating to a company in trouble.



’No comment’ not an option



An October 1998 study conducted by Opinion Research Corporation for Hill

& Knowlton underscores the trend. According to the study, 40% of

Americans believe a large company accused of wrongdoing in a lawsuit is

probably guilty. More than half (62%) of Americans believe a company is

guilty when it responds with ’no comment’ to charges of wrongdoing, and

48% of Americans say they are less likely to buy a product or service

from a company accused of wrongdoing in a lawsuit.



’Saying nothing, or responding with ’no comment’ is not a viable option

for companies facing litigation,’ says Michael Buckley, senior managing

director and national director of H&K’s litigation asset group.

’Historically, legal often took the position that nothing should be

said. PR folks wanted to say too much. Today, there is a growing

recognition among attorneys and public relations counselors that it is

possible to strike a balance between legal and communications needs that

best serve the client’s interests.’



Litigation PR is also an exciting area, often involving large

corporations or celebrities, where situations can change

instantaneously. ’This is not for the kids,’ warns Cox. ’The hazards are

too great. It can re-do a company or end a company.’ Buckley says

litigation PR is also appealing because it’s easy to measure success, as

its impact can directly be seen in litigation.



Despite the growing popularity of litigation PR, there’s still some

confusion about what PR agencies can and cannot get away with. The

practice inherently seems to involve a conflict between three

Constitutional rights: freedom of the press the right to an impartial

trial, and the guarantee of a public trial.



’As PR firms do a lot more for lawyers and litigation situations,

there’s probably going to have to be some guidelines that have to come

out of it, and PR firms need to acquaint themselves with this area of

the law,’ says T. Barton Carter, a professor of communications law at

Boston University.



The practice may also increasingly involve agencies being hired by law

firms directly, rather than by clients, something Hartigan says he often

does.



’If a public relations firm is working as an agent for a lawyer, they

are bound by the same kinds of restrictions as lawyers,’ says Robert

Bloom, a law professor at Boston College. ’What’s not clear is that if a

PR firm is hired as a result of litigation by a lawyer, are they part of

the lawyer’s work process and can they get protection?’



’Even if a corporation wants to hire us, we suggest that their lawyers

do so,’ says Buckley. ’The law supports the extension of client/attorney

privilege to PR counsel. However, it’s probable that if challenged in

court, the extension of privilege will fail, and there are several cases

that show that.’



Rule of deep pockets



As for whether the client or its PR firm can be held responsible for

cases of libel or slander in PR documents, Cox says this depends on the

’rule of deep pockets,’ meaning whoever has the greatest amount of

money.



And while some say this is a First Amendment issue, Bloom does not

agree: ’When you spin news, it’s closer to commercial speech than news.’



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