The line between lawyering and litigation communication is blurring. Lawyers are Tweeting – even about their own cases. Communications strategists are running social media campaigns regarding impact litigation. Documentarians make films supporting litigation positions. Even criminal defense counsel are no longer automatically answering “no comment.” Amidst this swirl of spin, the notion of defensive litigation public relations is starting to seem quaint. So this is an opportune moment to take a fresh look at whether and when litigation public relations efforts are protected within the attorney/client privilege and the attorney work-product doctrine.
The conventional wisdom among litigators was always that when the client needs communications strategy help in a dispute, the law firm should retain the public relations counsel so they can work as a team within the attorney-client privilege and attorney work-product protection. It’s done all the time. But does it really work? Recent decisions in both California and New York reveal that, like most conventional wisdom, it’s an incomplete and often inaccurate truth.
Every day, lawyers and communications strategists collaborate to guide their mutual clients through disputes and crises. They act as if their internal work is confidential and frequently don’t think about whether their communications would be discoverable. Most often, of course, nobody seeks discovery or challenges internal litigation team communications when they are disclosed on a privilege log. But two recent cases, Behunin v. Superior Court of Los Angeles County, 215 Cal. Rptr. 3d 475 (Cal. Ct. App. 2017), in California, and another in New York, Gottwald v. Sebert, 58 Misc. 3d 625 (Sup. Ct. N.Y. Co. 2017), show that keeping communications strategic planning confidential is not so straightforward. And, these decisions open the door to increased chances for litigants to seek discovery into the litigation public relations efforts of their adversaries.
What these cases (described below) show is that courts will look deeper than the form in which public relations counsel is engaged; having the lawyers retain and direct the communications firm may not by itself be enough to protect their communications from disclosure.
The court in Behunin addressed whether attorney-client privilege extends to litigation public relations. Although the court acknowledged that there may exist appropriate instances to extend the privilege to public relations consultants, it declined to do so in this case.
The attorney representing Nicholas Behunin hired a public relations firm to launch a social media campaign against Charles Schwab and his son Michael Schwab, to pressure them into settlement discussions. As a part of the campaign, the public relations consultant created a website that exposed the Schwabs’ business relationship with the former Indonesian dictator Suharto, his family, and their connections to corruption and various other criminal activities. In a subsequent defamation suit against Behunin, the Schwabs sought communications between Behunin, his counsel, and the public relations consultant.
Behunin asserted attorney-client privilege, but the court rejected the argument, finding he failed to establish how a website created by a public relations firm as a part of an overall social media campaign aimed at inducing settlement was reasonably necessary to his litigation strategy.
The court conducted an in-camera review of the discovery at issue and analyzed whether the communications fell under two exceptions to the general rule that disclosure of otherwise privileged communications to a third party destroys the privilege. Under the first exception, commonly referred to as the “agency exception,” the court determined that Behunin failed to show how the public relations firm helped to facilitate communications between himself and his attorney. Behunin’s counsel was not involved with developing the website and served as nothing more than a liaison in hiring the public relations firm. The court found this evidence lacking, particularly in comparison with the evidence presented in the New York federal case, Egiazaryan v. Zalmayev, 290 F.R.D. 321 (S.D.N.Y. 2013), and denied the claim of privilege.
Briefly, in Egiazaryan, a writer sought discovery of communications between a Russian politician and the public relations firm hired by the politician’s attorney. The politician asserted attorney-client privilege, claiming that the public relations consultants were his “agents,” who developed key messages and narratives in support of his case, weighed in on strategic considerations aligned with the his legal goals, and advised counsel on the public relations benefits of taking certain legal action.
Despite the politician’s arguably substantial evidence, the Egiazaryan court still declined to extend the privilege – just because the consultants were actively involved with the legal decision-making process, did not render their involvement necessary to the politician in obtaining legal advice from his attorney. In other words, the public relations firm did not serve as a “translator” or assist in any way to clarify the communications between the politician and his attorney.
The Behunin court next considered whether the communications over the website fell under the “common interest exception,” which requires a party and public relations consultants to have a shared interest in securing legal advice on a common matter.
The court easily rejected the applicability of this exception, where there was no evidence the public relations firm sought legal advice from Behunin’s attorney, and the parties’ shared desire to launch a successful media campaign “is not the kind of common interest contemplated” under the privilege.
Similarly, the court in Gottwald v. Sebert declined to extend attorney-client privilege to communications between singer/songwriter Kesha, her attorney, and a public relations firm hired by the attorney, where the public relations firm’s involvement was “primarily for the purpose of advancing a public relations strategy” rather than for “developing or furthering a legal strategy.”
The court cited counsel for Kesha’s admission that the primary purpose of the communications was to induce settlement and influence the prospective jury pool. As in Behunin, the court here also found communications with a public relations consultant for purposes of influencing settlement insufficient to justify protection under the attorney-client privilege.
Gottwald, however, was not a case of first impression in New York. In Pecile v. Titan Capital Group, LLC, 119 A.D. 3d 446 (1st Dep’t 2014), the First Department explicitly recognized that the attorney-client privilege may apply to communications between an attorney and a public relations firm. The Pecile court did not provide any guidance as to how to determine when the privilege would apply, however. Absent such guidance and given the “dearth of New York state cases on this specific issue,” the Gottwald court turned to New York federal cases for guidance.
The Gottwald court found the analysis in Calvin Klein Trademark Trust v. Wachner, 198 F.R.D. 53 (S.D.N.Y. 2003), particularly persuasive. Calvin Klein’s counsel hired a public relations firm as consultants to purportedly, among other things, help the law firm understand and anticipate stakeholder reactions to the litigation.
The defendants argued the public relations firm was instead hired to “wage a press war.” The court first called-out the contentions by both parties as vague and unhelpful, then performed an in-camera review and determined that the public relations consultants provided nothing more than ordinary public relations advice – “reviewing press coverage, making calls to various media . . . and even ‘finding friendly reporters.’”
According to the court, such assistance may have been helpful to Calvin Klein’s counsel in formulating its legal strategy, but that is not the same as “enabling counsel to understand aspects of the client’s own communications that could not otherwise be appreciated in the rendering of legal advice.”
The Gottwald court reiterated the distinction between two categories of communications, those focused on the effects of litigation (e.g. influence on the public or fact finder or settlement purposes), which constitute ordinary media strategy, from communications necessary to obtain legal advice (e.g. serving as a translator). Because the crux of Kesha’s public relations consultants’ effort focused on creating a “media spin” for the case, the court determined that the communications fell under the first category of communications, and “no court has ever held such types of communications to be privileged.”
Offense/Defense: What Kind Of Communications Strategy Is It?
Both Behunin and Kesha relied on In re Grand Jury Subpoenas Dated March 24, 2003, 265 F. Supp. 2d 321 (S.D.N.Y. 2003), to support their claims of privilege. There, the court found communications with a public relations firm that were “primarily defensive” warranted protection under federal common law attorney-client privilege.
In re Grand Jury Subpoenas involved an investigation of a particular celebrity, whose attorney hired a public relations firm to “defend” against the outspoken, anti-client press and balance the playing field in the media so that the prosecutor would not feel pressured to bring charges. According to the court, under those specific facts and circumstances, protecting such communications from disclosure supported one purpose of the privilege – the administration of justice. Nonetheless, because federal common law does not require the communication to be “reasonably necessary,” courts, as in Behunin and Gottwald, have and will likely continue to decline extending its applicability to state privilege laws.
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. As demonstrated by Kesha’s counsel’s unbeknownst candor to the court, simply claiming “settlement purposes” as a legal strategy will not suffice. Far more careful attention is required if these professionals hope to keep their internal communications confidential.
Moreover, this is an area where the judicial analysis of litigation public relations may conflict with the current nature of litigation communications. The pace and savagery of public discourse, over any topic nowadays, seem to distort any distinctions between offensive and defensive public relations. Based on the newest case law discussed above, litigators, communications consultants and their clients should expect that courts will take a close, hard and intrusive look at claims of privilege for communication. Lawyers, publicists and their clients should now expect that:
- Judges will closely examine communications between lawyers and public relations firms, often through an in camera review.
- The actual role played by the consultants will be reviewed and analyzed.
- This level of intrusive inquiry is required by the law regarding whether and when there are exemptions to the rule that third party disclosure with litigation secrets destroys privilege.
- The basis on which courts decide what communications advice is necessary and privileged and what advice is viewed as offensive versus defensive may not reflect current approaches to strategic litigation communications.
These recent cases reflect challenges to attorney-client privilege that involve a not-so-uncommon premise: legal matters seeking public relations attention. But, in the swirl of litigious spin surrounding our public affairs now, the privilege will be tested and twisted, in perhaps less-recognized contexts. To what extent will attorneys overtake the default spokesperson role to the media? And, as corollary, it is not too much of a stretch to wonder if a court will at some point extend the analysis of lawyer-publicist relations discussed above to question whether a lawyer is seeking to cloak more traditional public relations opinion activities behind the veneer of a purported attorney-client communication?
None of this yet appears to come anywhere near to eroding the customary and critical attorney-client privilege. But, it is at the fringes that rights start to erode and norms get tested. And, when fringe characters dominate the debate and even the halls of power, there can be all sorts of unintended and unexpected consequences.
John Siegal is a Litigation Practice partner and Tiffany A. Miao is an associate in the New York office of BakerHostetler.The views expressed in this article are those of the authors and not necessarily those of BakerHostetler or its clients.