Ruling Confers New Legitimacy on Litigation PR
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Ruling Confers New Legitimacy on Litigation PR

Litigation public relations discussions involving lawyers and public relations professionals are protected under attorney-client privilege, according to a ruling last week by U.S. District Judge Lewis Kaplan.

Paul Holmes

NEW YORK—Litigation public relations discussions involving lawyers and public relations professionals are protected under attorney-client privilege, according to a ruling last week by U.S. District Judge Lewis Kaplan. The ruling was hailed by public relations professionals as conferring new credibility on their role and acknowledging a reality of today’s legal work.

Judge Lewis Kaplan said the privilege—granted to accountants and some other professionals in earlier cases—can also extend to conversations between the target and the public relations firm, but only to the extent that the conversations are “for the purpose of obtaining legal services.”

The ruling was issued in response to the government’s attempt to force a PR executive to testify before a grand jury about conversations the person had with the target of the federal probe. The judge did not disclose the target of the investigation or the PR executive, other than to say it involved a high-profile case that has been the subject of much media attention.

“The Target,” as the judge called the grand jury subject, hired the PR executive to combat the “unbalanced and often inaccurate press reports,” Kaplan wrote, and “reduce the risk that prosecutors and regulators would feel pressure from the constant anti-Target drumbeat in the media to bring charges.”

According to Kaplan, “This Court is persuaded that the ability of lawyers to perform some of their most fundamental client functions . . . would be undermined seriously if lawyers were not able to engage in frank discussions of facts and strategies with the lawyers’ public relations consultants.

“Dealing with the media in a high-profile case probably is not a matter for amateurs,” Kaplan added. “Target and her lawyers cannot be faulted for concluding that professional public relations advice was needed.

“For example, lawyers may need skilled advice as to whether and how possible statements to the press—ranging from ‘no comment’ to detailed factual presentations—likely would be reported in order to advise a client as to whether the making of particular statements would be in the client’s legal interest. And there is simply no practical way for such discussions to occur with the public relations consultants if the lawyers were not able to inform the consultants of at least some non-public facts, as well as the lawyers’ defense strategies and tactics, free of the fear that the consultants could be forced to disclose those discussions.”

Litigation communications experts believe the case will have serious long-term ramifications.

“I think the case is huge, because up until now, it was questionable whether PR  counsel was coverage under attorney-client privilege,” says James Haggerty, president of The PR Consulting Group and author of In the Court of Public Opinion, a new book about litigation communications. “Up until now, I have always advised clients to assume that our work is not covered, just to be on the safe side—despite the fact that I’m a lawyer by training.”

Haggerty says the central thesis of his book is that there is an increasing collision between the worlds of law, media, and public relations and points to the Martha Stewart case as the latest evidence. “Some media savvy attorneys are beginning to understand this concept, but again, most consider PR considerations an afterthought, often handing it off to the clients regular PR advisors, who are ill-equipped to work with lawyers on these issues.

“There will come a time very soon when a lawyer who neglects the PR aspects of a case could be sued for malpractice. It’s a radical notion, but yesterday’s ruling certainly moves the law in that direction.”

Most lawyers probably would not go that far, but they agree the case recognizes the importance of public relations.

The ruling “blesses the lawyer’s hiring of a public-relations firm to assist in rendering legal advice,” says David Meister, a defense lawyer at Clifford Chance US, a large New York law firm. “It says part of the lawyer’s role is addressing the public opinion of the client because that may well affect the prosecutors decision and influence potential jurors.”

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