Litigation PR poses risk to secrecy

Professional PR firms can add invaluable assistance to clients faced with high-profile or "bet-the-company" litigation.

Professional PR firms can add invaluable assistance to clients faced with high-profile or "bet-the-company" litigation.

Whether by shaping the core message of the client's theory of the case or informing the media on the litigation process, litigation PR specialists can position the client for the best possible result under often difficult circumstances.

For the client to realize the maximum benefit, the litigation PR consultant and the client's attorneys must work shoulder-to-shoulder. However, that close relationship comes with risk to the client. It can imperil the secrecy that the client enjoys by virtue of the attorney-client privilege, which typically protects communications only between an attorney and his or her client. PR consultants are neither in the privilege equation. As a result, including a litigation PR consultant in attorney-client communications can jeopardize their secrecy.

Some courts have taken a pragmatic approach to this problem, ruling that disclosure of privileged communications to PR consultants does not sacrifice secrecy. Other courts, however, have concluded that discussions between a client's litigation PR consultants and its lawyers aren't confidential. Imagine a litigation experience where the client's adversary is permitted to discover sensitive communications among client, PR consultant, and attorney. Worse yet, imagine wrongly assuming at the outset that those communications would be secret.

 Lawyers and litigation PR consultants owe it to their clients to deal affirmatively with the attorney-client privilege issue before they discuss any confidential matters or litigation strategy. Nothing can guarantee confidentiality, but taking a few precautionary measures can put the client in the best possible position to keep those communications in a black box.

The best practice is for the client's counsel, as opposed to the client itself, to engage the litigation PR consultant. A PR consultant approached directly by a client to assist in litigation should stress the client's advantage in having outside counsel engage the firm. The PR firm should at the outset ask outside counsel for an engagement letter that squarely addresses confidentiality issues.

The scope and nature of the PR consultant's engagement can matter a great deal in determining confidentiality. An engagement that involves broad strategy for managing the impact of the litigation on the client's customers, the media, or the public is not likely to gain confidentiality. However, one that is specific to litigation strategy, influencing a just outcome of the case, and assisting counsel in representing its client is more likely to enjoy confidentiality. PR pros and counsel should take time to define the engagement's nature.

Outside counsel's supervision of the litigation PR consultant's work will help the chances that the privilege will apply. Early in the engagement, the client, consultant, and counsel should agree on rules for communications that must include counsel, as well as those that need not. Further, any documents the PR consultant creates that reflect counsel's legal advice should be labeled "Attorney-Client Privileged - Work Product" and should not be disclosed to outsiders.

By dealing with these issues early in the engagement, PR consultants can help their clients gain the benefit of confidentiality and position them for success in litigation.

Sandy Thomas is a partner at Reed Smith litigation practice.

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