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First, do no harm. That founding oath of the medical profession applies equally to lawyers working with public relations professionals in jointly handling matters that place their clients in the spotlight of media or governmental scrutiny. If the working relationship between lawyers and public relations professionals engaged on behalf of common clients is handled improperly, the professionals can cause more harm than they provide help to the client’s interests and public image by exchanging vital information without the protections of the attorney-client privilege or the attorney work-product doctrine. Public relations professionals, like lawyers, are frequently entrusted by their clients with sensitive information and are admitted into a company’s innermost deliberative processes. When this occurs during litigation, investigations and other corporate crises, there is an understandable tendency to assume that attorney-client privilege and attorney work-product protections still apply. But that can be a dangerous assumption. With renewed attention to the role of public relations in legal battles-including most notably, in connection with the prosecution of Martha Stewart-practitioners should revisit the rules governing privilege. A June 2 decision by Judge Lewis Kaplan of the Southern District of New York has reaffirmed that public relations consultants can be brought within the privilege if communications with them are handled carefully. In re Grand Jury Subpoenas Dated March 24, 2003 Directed to (A) Grand Jury Witness Firm and (B) Grand Jury Witness, 265 F. Supp. 2d 321 (S.D.N.Y. 2003). Lawyers must be cautious in involving public relations professionals in otherwise privileged communications. Outside consultants The privilege rules that apply to other outside consultants such as accountants do not necessarily apply to public relations consultants. In United States v. Kovel, 296 F.2d 918 (2d Cir. 1961), the 2d U.S. Circuit Court of Appeals extended the attorney-client privilege to communications among a client, a lawyer and an accountant, reasoning that when employed by a law firm for the purposes of educating the lawyer and client about subjects outside their expertise or knowledge, an accountant is no different than a foreign-language translator. The fact that the accountant was elucidating concepts foreign to an attorney made the accountant “necessary, or at least highly useful, for effective consultation between the client and the lawyer which the privilege is designed to permit.” Id. at 922. It made no difference whether the attorney or the client hired the outside consultant. Kovel has not been uniformly extended to cases involving public relations firms. In Calvin Klein Trademark Trust v. Wachner, 198 F.R.D. 53 (S.D.N.Y. 2000), the court held that privilege did not extend to communications among a law firm, its client and a public relations firm. Because the public relations firm was mostly engaged in lobbying and disseminating generalized public relations advice, the court reasoned that it was not serving as a “translator” like the accountant in Kovel. Id. at 54. The court also found important that the attorney hired the public relations firm, suggesting that had the client hired the firm, the analysis would be different. Calvin Klein creates significant problems for law firms hiring public relations firms; law firms would no longer be able to hire any consultants, because the privilege would only extend when the consultant was in the client’s employ. This would especially burden attorneys working on a contingency basis, as they often hire all of the consultants themselves because their clients are often in no financial position to do so. As any lawyer who has handled a matter of pressing interest to the media knows all too well, public relations professionals are more than mere conveniences; they are integral to the legal effort. In Calvin Klein, the court held that the privilege could not attach because the public relations firm mostly acted as a media lobbyist even though its work also helped the lawyer develop and implement litigation strategy. Under this reasoning, an accounting firm, hired as a translator of information, would enjoy the privilege only if it was hired exclusively for that purpose, and did nothing else to assist the attorney. Among other problems with such a rule, it would create endless fodder for discovery and motion practice, creating incentives for adversaries to try to penetrate the lawyer/ public relations consultant relationship. Other courts have been less restrictive. In re Copper Market Antitrust Litigation, 200 F.R.D. 213 (S.D.N.Y. 2001), held that privilege should attach to communications among lawyers, the client and a public relations firm. There, a Japanese corporation hired the public relations firm to act as a liaison between the corporation and the media and also to advise the client how best to protect itself from making public statements that could be legally or otherwise damaging. The plaintiff in Copper Market unsuccessfully asserted that communications shared with the public relations firm consultants could not be privileged because the work done was not exclusively litigation-related, nor was it done at the attorneys’ request. The court noted that the client’s executives had limited knowledge of English and needed outside help to understand “the legal ramifications and potential adverse use of [public] communication” the company might have otherwise made. Id. at 219. The firm essentially became the client’s employee and shared the attorney-client privilege as if it were the client. Whatever the merit to the court’s analysis that foreign clients need hand-holding, a more savvy client could be treated differently. In his recent decision in In re Grand Jury Subpoenas Dated March 24, 2003, Kaplan took still another approach, concluding that certain communications among lawyers, public relations consultants and clients are privileged, while others are not. Kaplan’s decision involved grand jury subpoenas served in a federal prosecution that had “been a matter of intense press interest and extensive coverage for months.” 265 F. Supp. 2d at 323. A footnote in the decision urged that nothing should be assumed from the use of female pronouns in the decision (presumably to dissuade readers from assuming that the target was Martha Stewart). A public relations firm employee served with one of the subpoenas refused to answer many questions posed on the ground of attorney-client privilege, explaining that the public relations professionals had been brought in because the target’s attorneys were troubled 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.” Id. Relying on Kovel, Kaplan held that “(1) confidential communications (2) between lawyers and public relations consultants (3) hired by 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.” Id. at 331. Kaplan took a real-world approach, noting that a lawyer’s representation of a client can extend well beyond in-court appearances, particularly in high-profile cases, and that dealing with the media in such cases is no “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.” Id. at 330. Applying this rule, Kaplan concluded that only two conversations between the target and the public relations employee were not privileged-one because the target merely asked for opinions about media coverage when it had been particularly heavy, and another involving a problem with a wire service story. In both instances, the court held that the communications did not occur at the lawyers’ request or for the purpose of formulating legal strategy. Perhaps the most important lesson to be learned from these cases is that the lawyer’s role of protecting the client-and preserving the confidentiality of client information-becomes even more important when public relations professionals are hired. Lawyers must always remain attentive to protecting the client’s interest, and should affirmatively take an appropriate role in vetting the content of public relations campaigns and structuring the flow of communications to ensure that the use of public relations help does not result in waivers of privilege that end up disclosing confidential information rather than protecting the client’s interests and image. In the end, if lawyers are dealing with legal matters that are in the public eye, when the time comes to seek public relations help, it’s best to think like a doctor, and first do no harm. John Siegal is senior counsel, and Jeremy R. Feinberg is an associate, at New York’s Proskauer Rose. David P. Olener, a law clerk at the firm, assisted in this article’s preparation.

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