Jamie Diaferia and Andrew Longstreth
Jamie Diaferia and Andrew Longstreth ()

In today’s hyperkinetic media mosh pit—where information and misinformation combine to move markets and shape public opinion at exponentially faster speeds every day—public trials and major lawsuits continue to provide irresistible fodder for journalists, bloggers, and the digerati. It is little wonder, then, that trial lawyers and litigators who specialize in protecting reputations, as well as privacy, publicity and speech rights, consider PR advisors crucial participants in litigation.

Lawyers know that in our 24-7, live-tweeting, alternate-fact-saturated, Instagrammed, Snapchatted, Facebooking news environments, the narratives in the court of public opinion can be as influential as the narrative unfolding on the quiet side of the courthouse doors.

In our experience, clients get the best results when their legal and PR teams work closely together with clear established lines of communication toward a common goal. Lawyers who specialize in handling high-profile cases agree.

“A trial is a public ritual, but a trial narrative is typically private,” says Jonathan Sherman, a partner at Boies Schiller Flexner. “When a client resumes private life,” Sherman adds, “she has to be able to talk to her neighbors; they must believe the things she says.”

Lawyers and PR professionals know how to work together to ensure that the story told in court goes hand in hand with the one told in the court of public opinion. But courts don’t necessarily make that coordination easy. They continue to distinguish between lawyers and PR professionals when considering claims of privileged communications. The distinction is critical: While the attorney-client privilege is a bedrock feature of our legal system, there is no corresponding public relations privilege.

Since the 1990s, courts have found that the attorney-client privilege can be extended to communications involving PR advisors, but it’s not automatic. The bottom line is that this area of the law is gray, which needs to be acknowledged when formulating a strategy.

A recent California state court ruling underscores the point. In March, a three-judge panel for an appeals court ruled that communications among a client, his outside PR agency, and his attorneys were not covered by the attorney-client privilege. The court found that the communications in question were not “reasonably necessary” to accomplish the underlying legal goals of the case.

At issue was a website created by the PR firm Levick Strategic Communications designed to put pressure on Charles Schwab and his son Michael Schwab to settle a lawsuit filed by businessman Nicholas Behunin over a failed real estate deal. The website, www.chuck-you.com, as the court noted in its ruling, contained “information linking the Schwabs and their real estate investments in Indonesia to the family of former Indonesian dictator Suharto.”

The Schwabs retaliated by suing Behunin for libel, slander and invasion of privacy in separate lawsuits; the Schwabs later demanded all communications among Behunin, Levick and Behunin’s attorneys at Steiner & Libo regarding the creation of the site.

Behunin filed a motion to block the information request. It argued that communications that led to the website were protected by the attorney-client privilege in part because the site had the legal aim of pressuring the defendants to settle.

The court disagreed, holding that Behunin was seeking to extend the scope of the kinds of communications protected by the attorney-client privilege “too far.”

The court explained that there are myriad ways to pressure a defendant into settling a case, including by “hiring away employees of the Schwabs or their company, lobbying governmental officials to enact regulations adverse to the Schwabs’ investment business, and creating a competing brokerage business to take away the Schwabs’ clients.” But the attorney-client privilege should not be extended to cover work in those areas, the court wrote.

“Without some explanation of how the communications assisted the attorney in developing a plan for resolving the litigation, Behunin would not be able to show such communications were reasonably necessary to accomplish Steiner’s purpose in representing Behunin,” it noted.

The court was quick to note that communications between attorney, client and a PR firm could be privileged. “There may be situations in which an attorney’s use of a public relations consultant to develop a litigation strategy or a plan for maneuvering a lawsuit into an optimal position for settlement would make communications between the attorney, the client, and the consultant reasonably necessary for the accomplishment of the purpose for which the attorney was consulted,” it wrote. “But this is not that case.”

Familiar Pattern

The Schwab case is just the latest reminder that the attorney-client privilege is not automatically extended to work done by PR professionals. In March, a Pennsylvania appeals court also rejected claims of privilege related to communications with PR advisors. In that decision, a hospital’s decision to publicly announce that two doctors formerly affiliated with the hospital had engaged in unnecessary procedures prompted the doctors to make claims of defamation and business interference. Just as the Schwabs did in the California case, the doctors resorted to the discovery process. They sought an email containing a hospital’s legal analysis, performed by an outside attorney, regarding the announcement. The lawyer’s work was subsequently forwarded to four members of the hospital’s outside PR firm.

The court rejected claims that the communications with the PR firm were protected by the attorney-client privilege, finding that the PR firm did not play any role in the decision to publicly name the doctors, which was based on the advice of outside counsel. (In May, the court agreed to reconsider its ruling.)

Not a Matter for Amateurs

Of course, not every court has rejected requests to extend the attorney-client privilege to PR professionals. One of the most notable exceptions came in the notorious insider-trading criminal case against Martha Stewart.

While investigating Stewart, but before indicting her, prosecutors had issued a subpoena to Stewart’s outside PR firm. In his 2003 opinion, U.S. District Judge Lewis Kaplan of the Southern District of New York explained how the case fit a narrow pattern that shielded communications with the PR firm.

He held 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.”

Judge Kaplan noted that in high-profile cases like Stewart’s, “advocacy of a client’s case in the public forum will be important to the client’s ability to achieve a fair and just result in pending or threatened litigation” and that interacting with the media is “not a matter for amateurs.”

He added: “And there simply is 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.”

Coordination of Legal and PR

The key to a successful litigation communications strategy is careful coordination between legal and PR teams, according to Paul Geller of Robbins Geller Rudman & Dowd. “It’s not the job of PR advisors to freelance on their own for the client,” he says. “Attorneys need to set the ground rules for how information is shared and those rules need to be heeded.”

Boies, Schiller’s Sherman goes further. “The most important thing that PR professionals can do is let the lawyer take the lead,” he says. “Anyone who brings or defends a lawsuit faces major reputation risk,” Sherman argues. “The lawyer should implement a broad range of reputation-enhancing features to mitigate that risk—from getting to the right types of journalists, to obtaining a professional’s judgment on when to speak and what to say, to someone who knows how to write simple English.”

In other words, precisely the expertise of a PR professional. But for the privilege to work, as Judge Kaplan’s five-factor analysis makes clear, the PR professional must focus on the lawyer’s perspective. What did the lawyer do to help the client by engaging in confidential communications with the PR professional? Did the lawyer (as opposed to the client) hire the PR professional? Were the communications between the lawyer and the PR professional confidential? Did their relationship arise in order to give or receive legal advice?

A lawyer who places himself between the client and the PR professional (as with other consultants) can ensure a sound strategy. That may mean, for example, engaging a litigation PR advisor different from the party’s regular outside PR firm as a way to improve the chances that a court believes the communications advisor was engaged for a legitimate, litigation-enhancing reason.

Bottom line: Anyone can get their 15 minutes of fame by filing a lawsuit, which means that professional communications advice is a necessity. Good lawyers know it, and it’s their job to persuade their clients of it.