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Conversations between a public relations firm and lawyers representing the target of a grand jury investigation are protected by the attorney-client privilege, as long as they relate to the handling of the client’s legal problems, a Southern District of New York judge has ruled. Judge Lewis Kaplan said the privilege 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 judge issued the ruling in a high-profile case being pursued by Southern District U.S. Attorney James Comey. The judge issued the ruling May 1 under seal, and publicly released a redacted version June 2 in which he disguised the identities of the parties in an investigation that he said “has been a matter of intense press interest and extensive coverage for months.” The judge referred to the law firm’s client only as the “Target” and the public relations firm as the “Firm.” He also warned that no inferences should be drawn from the gender of the pronouns used to describe the parties. Comey’s office had sought the testimony of a firm employee who had conversations with the target, but who had asserted the attorney-client privilege in refusing to discuss those conversations before the grand jury. The prosecution then sought an order to show cause to compel the testimony. The witness had testified that the firm was hired because the target’s attorneys were concerned that ” ‘unbalanced and often inaccurate press reports about Target created a clear risk that the prosecutors and regulators conducting the various investigations would feel public pressure to bring some kind of charge against’ her,” the judge wrote. NECESSITY NOTED The judge noted that a lawyer’s representation of a client, particularly in high-profile cases, can extend well beyond in-court representation. Dealing with the media in such a case, he said, “is not a matter for amateurs.” “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,” he said. “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 nonpublic facts, as well as the lawyers’ defense strategies and tactics, free of the fear that the consultants could be forced to disclose those discussions.” The ability of lawyers to “perform some of their most fundamental client functions,” he said, such as giving advice on the wisdom of speaking publicly, trying to avoid or limit charges, and aggressively seeking acquittal or public vindication, “would be undermined seriously if lawyers were not able to engage in frank discussions of facts and strategies with the lawyers’ public relations consultants.” Judge Kaplan held further that “(1) confidential communications (2) between lawyers and public relations consultants (3) hired by the lawyers to assist them in dealing with the media in cases such as this (4) that are made for the purpose of giving or receiving advice (5) directed at handling the client’s legal problems are protected by the attorney-client privilege.” Applying that standard to the testimony sought by the U.S. attorney, Kaplan said that only two conversations between the target and the witness were not protected by the privilege. In one conversation, the target asked the witness’s opinion of media coverage on a day when coverage had been heavy. The second conversation concerned a problem with a wire-service story. “Neither of these conversations satisfies the standard set forth above — that the communications be made for the purpose of obtaining legal services,” the judge said. “Target has not shown that either conversation was at the behest of her lawyers or directed at helping the lawyers formulate their strategy.” This article was distributed by the American Lawyer Media News Service. Mark Hamblett is the federal court reporter at the New York Law Journal.

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