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Whether it is the indictment of a corporate officer or a massive oil spill, a high-profile crisis can pose a question for lawyers and their clients: Do they call in a communications team? Public relations experts recommend that lawyers act as early as possible, so that they can keep a crisis from gaining momentum as unaddressed press reports accumulate. A chief danger, says New York public relations executive Howard Rubenstein, is reacting too slowly to events. Not all situations require specialists, the experts say. In-house press officers or a corporate client’s regular public relations firm can manage most problems. When should a lawyer look to specialists with the expertise to help manage a legal crisis? Martin Pollner, a partner at Loeb & Loeb’s New York office who has represented high-profile clients like Denise Rich, said that he brings in a firm whenever a client’s reputation suffers from the negative publicity. PR during a legal crisis is a delicate business. Experts often disagree on tactics. In the case of a criminal charge, some publicists might recommend an aggressive campaign to derail prosecutors and plaintiffs attorneys, while another would urge a conservative approach intended to avoid statements that could prove harmful in court later. Across the board, PR specialists agree that while some clients may wish to “spin” the facts, the best strategy includes an honest presentation of the facts — in the best possible light, of course. FIRST STEPS Once lawyers and client decide to hire an outside firm, experts advise that the law firm hire the public relations team to preserve the attorney-client privilege. Recent rulings, like the one involving a high-profile grand jury investigation last year, suggest that confidential communications made for the purpose of managing legal issues with public relations personnel are more likely to remain privileged if the lawyers hire the public relations firm. A team of members from the law firm and general counsel’s office, a top executive from the company, representatives from the public relations firm, and an in-house public relations officer develop a strategy, said Rubenstein, the founder of Rubenstein Associates, whose clients have included Leona Helmsley and Michael Jackson. During these initial sessions, often called “war games” by industry insiders, a team goes through “what if” scenarios, said Melvin Schweitzer, an attorney who also heads a PR firm concentrating on high-profile legal matters. The team analyzes problem areas and prepares defenses for current or potential crisis, he said. What if there is a whistleblower? What if an internal investigation will eventually need to be publicly disclosed? Early preparation helps reduce the impact of negative publicity, said Schweitzer. If a crisis reaches the public, the team can elect to say nothing or draft a “placeholder” — a statement denying wrongdoing or showing contrition for a tragic event — said Schweitzer. Or it can issue hard-hitting responses or attempt to soften the client’s image, depending on an analysis of press reports, said Pollner. “One rule of thumb observed by PR firms is that the lawyer controls the shots and the strategy,” said Schweitzer. Rubenstein said that to avoid blunders he does not take any action without an attorney’s consent. Lawyers generally draft critical news releases, he said. “It often reads like a law review piece … or sounds combative” said Rubenstein, “so we’ll put a human touch to it.” Other PR experts said that they might draft a statement but insisted that lawyers review important communications. Dealings with the news media must include a realistic appreciation of events by the client and its representatives, Rubenstein said. PR specialists said Microsoft’s lawyers during its antitrust trial personified this misguided approach by regularly appearing before reporters after bad days for the company in court and speaking as if Microsoft had scored a victory. Contemperanous press reports painted a picture of a skeptical press corps growing increasingly hostile to Microsoft as its lawyers and spokespeople continued to undermine the company’s credibility through formulaic statements unappreciative of events in the courtroom. Instead, said experts, lawyers should “put the best facts forward” or concede the setbacks and offer “yes but” explanations. “Be nice to the media, otherwise they’re going to kill you,” said Pollner. The appearance of arrogance and standoffish behavior will turn the press against a lawyer, he said. The experts said the greatest tension between lawyers and communications specialists arises when lawyers insist on remaining silent, and slow down communications as they deliberate a response. RETURNING CALLS Some situations deserve strong and immediate action, they said, to counter defamatory statements or reach out to important constituencies. When attorneys do not return phone calls to reporters and that fact is reported, it injures the client, said Rubenstein. He recommends that — at the least — lawyers return calls and provide standard statements. How much a lawyer should say, however, largely depends on whether the legal crisis is a civil or criminal matter. In a civil case, the experts said, a public relations team strives to influence important constituencies: suppliers, customers, creditors, lenders, Wall Street analysts and shareholders. Pollner endorsed the aggressive public relations campaign used in the World Trade Center insurance case in which both parties have made frequent statements and issued long and detailed releases countering their opponent. Larry Silverstein, the real estate developer involved in a lawsuit over the level of insurance payments for the World Trade Center disaster, must uphold his image before the financial community, explained Pollner, and the risks of making an injurious statement remain minimal as lawyers and public relations personnel vet the statements. In such instances, lawyers need to understand that they are dealing with an “economic enterprise,” said William Cunningham III, a former prosecutor and now a white-collar defense lawyer at Pryor Cashman Sherman & Flynn. Lawyers must appreciate the economic costs of silence and balance these concerns against the potential legal impact, he said. Rubenstein is Silverstein’s representative in the matter and declined to comment. A public relations campaign can help with purely legal matters, said Robert Bork, a former journalist who now heads Virginia-based Bork Communication Group. PREVENTING LAWSUITS He recalled a case in which his client faced several employment discrimination lawsuits. In order to quell a brewing class action suit that would cost millions, he publicized the company’s strong but unknown record of hiring minorities. The strategy limited the lawsuits to a few individual cases, he said. Others agreed that public relations campaigns often fend off plaintiffs attorneys by revealing the company’s willingness to voraciously defend itself. The risks associated with a criminal trial generally obligate lawyers and clients to limit public communications, the public relations people said. They disagreed as to the intensity and efficacy of a public relations campaign in this setting. Rubenstein and Pollner said that campaigns have little effect on jurors. But Lanny Davis, head of Orrick, Herrington & Sutcliffe’s team that combines legal and communications advice, and Schweitzer argued that the massive publicity surrounding high-profile cases influence potential jurors, at least subconsciously. They also differed on the impact on prosecutors. A public campaign has little effect on prosecutors and often encourages them to pursue a case, said Pollner. Instead, he said lawyers should negotiate with prosecutors in private. However, James Haggerty, an attorney who now runs a public relations firm, pointed to a case in which his firm represented a financial institution that was the target of a government investigation. Haggerty knew that reporters would travel from the regulator’s press conference announcing the lawsuit to his client’s headquarters so he prepared a spokesperson to deliver an acute response. He believed that this response prevented the lawsuit from reaching the front page of newspapers and pushed prosecutors to settle. “If we are not prepared when the media onslaught begins, it makes it a lot harder to reach an accommodation,” he said. Judge Lewis Kaplan in a ruling last year saw it as a legitimate enterprise for communications experts and lawyers to dissuade prosecutors from bringing an indictment through a public relations campaign. Commentators at the time surmised the case, which excluded the names of the parties, involved Martha Stewart. Davis, who began to represent Stewart in the fall of 2002 and represented President Clinton during the Monica Lewinsky trial, denounced the blanket presumption among criminal defense lawyers to remain silent. He said it was appropriate to speak out before an indictment if three conditions were met. The statement had to be exculpatory, already known by the prosecution (through a subpoena, for instance), and would likely be made public anyway during the trial. Others countered that the more defendants say, the more likely they are to make mistakes. Clients sometimes believe they are telling the truth, said experts, and a trial later reveals that their memory was incomplete or wrong. Not all high-profile defendants have elected this approach. Richard Scrushy, former CEO of HealthSouth, was indicted for inflating the company’s earnings and assets. He has launched a Web site and hosts a talk-show (which he pays for) where he regularly discusses his case. His guests often include his lead defense attorney. Lawyers and communications specialists interviewed for this article universally criticized his strategy. “I don’t think that I would recommend that under any circumstances,” said Pollner of Loeb & Loeb. Haggerty of the PR Consulting Group described it as the “strangest technique” he had witnessed and warned that it is “hard to believe that he’s so practiced in front of the camera that he wouldn’t say something that will hurt his case.” If you are interested in submitting an article to law.com, please click here for our submission guidelines.

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