Companies embroiled in high-profile lawsuits, government investigations or other types of controversies typically contact a PR firm and a law firm, perhaps not in that order. Litigation and public relations have become increasingly intertwined.
Lawyers speak to the media and tweet about cases. The days when attorneys automatically blurt “no comment” about cases are gone. Many attorneys have bungled the PR aspects of high-profile cases – so law firms are now inclined to include professional communications strategists on the litigation team. PR experts now run social media and media relations campaigns to bolster their client’s reputation and influence the outcome of court cases.
Clients feel confident that attorney-client privilege protects communications with their attorney from outside examination. But what about communications with their PR firm? Whether attorney-client privilege shields communications with a client’s PR firm is far from clear.
Recent court cases clarify – or perhaps muddle — the attorney-client privilege of PR firms, according to legal experts. The rulings may increase the likelihood that litigants will try to uncover public relations efforts of their adversaries.
“The results of the rules set forth in these decisions should lead lawyers and communications professionals to reassess the ways in which they organize their joint representations,” write John Siegal, litigation practice partner, and Tiffany A. Miao, an associate at BakerHostetler in the New York Law Journal. “Litigators, communications consultants and their clients should expect that courts will take a close, hard and intrusive look at claims of privilege for communication,” they warn.
One Court Protects PR Attorney-Client Privilege
In one important court case, Stardock Systems Inc. v. Ford et al, Stardock (plaintiff) sued Ford (the defendant) for infringing its intellectual property for its video game, explains Andrew Goldstein, a partner with Freeborn & Peters LLP in the Corporate Practice Group, in O’Dwyer’s. Ford claimed that Stardock engaged in a PR war by publishing hundreds of posts to online forums and social media platforms which “blatantly misrepresented the facts and seek to sway public opinion in favor of Stardock and its game …”
Attorneys for Ford retained Singer Associates Public Relations. Stardock alleged that Ford engaged Singer to “orchestrate a social and other media assault on Stardock and in particular its CEO in an effort to influence public opinion …” Stardock went to court to seek all documents relating to communications between Singer and Ford.
The court held that communications between Ford and the PR firm were protected by the attorney-client privilege because the defendants’ counsel, not the defendants themselves, hired the PR firm. In addition, the attorney’s communications with Singer were related to the case’s litigation strategy and involved legal advice.
Different Case, Different Results
Other cases reached different results. In Behunin v. Superior Court in 2017 in California, Nicholas Behunin filed a lawsuit against Charles Schwab and his son, Michael Schwab, over a real estate investment dispute. The plaintiff engaged a PR firm to set up a website with information that exposed the Schwabs to former Indonesian dictator Suharto and the dictator’s corruption and criminal activities.
In a subsequent defamation suit against Behunin, the Schwabs demanded communications between the plaintiff, his counsel and the PR firm. The court refused to apply the attorney-client privilege. It ruled that that the plaintiff failed to establish the PR firm’s actions were reasonably necessary to the plaintiff’s litigation strategy. The court found that the plaintiff’s counsel wasn’t involved with creating the website and was basically just a liaison in hiring the PR firm.
In another case, Gottwald v. Sebert, the court declined to extend attorney-client privilege to communications between singer/songwriter Kesha, her attorney, and a PR firm hired by the attorney. The court said the PR firm’s involvement was more for PR than for aiding any legal strategy. Its communications work was designed mainly to induce settlement and influence the prospective jury pool.
How PR Firms can Protect their Attorney-Client Privilege
PR pros may believe they’re part of the legal team and protected under attorney-client privilege if they’re hired by attorneys. Not true, warns Bill Huey, president of Strategic Communications. “Court rulings on attorney-client privilege for PR advice are all over the place, with judges making opposite rulings within six months of each other,” Huey writes in O’Dwyer’s.
Although it’s difficult to predict if a court will grant communications firms the attorney-client privilege, following these steps can help protect PR communications, Goldstein says.
- The PR firm should be hired by the attorneys, not the client, and the attorneys should manage the relationship with the PR firm. The attorneys should handle the PR firm’s fees and should be copied on any communications between the PR firm and the client.
- Consider engaging a specialized PR firm to handle the case, rather than the company’s general PR firm.
- Obtain a written agreement with the attorneys specifying the services the PR firm will provide, emphasizing the facilitating of legal strategy and covering such things as reporting relationships, communications with the law firm and the client, and the sharing of confidential information.
- The client should talk with the PR firm only when the lawyers are present.
- The attorneys should be actively involved with the PR firm and its activities, rather than letting the PR firm operate independently.
- The attorneys should try to ensure that the PR work is focused on the litigation. PR should try to influence the decision-makers, such as prosecutors, rather than simply trying to influence public opinion or compelling the other side towards settlement.
Bottom Line: Lawyers and their clients frequently recruit PR pros to help their legal battles. PR pros become litigants in the battle for public opinion. PR may feel like part of the legal team, but unlike lawyers, their communications with lawyers and clients may not be protected by attorney-client privilege.
William J. Comcowich founded and served as CEO of CyberAlert LLC, the predecessor of Glean.info. He is currently serving as Interim CEO and member of the Board of Directors. Glean.info provides customized media monitoring, media measurement and analytics solutions across all types of traditional and social media.