Litigation and Public Relations: Four Questions Every Practitioner Should Ask

This is a summary of the research Cayce Myers presented at this year’s International Public Relations Research Conference.
Cayce MyersIncreasingly public relations practitioners are confronted with clients who have not only PR problems, but legal ones as well.  One of the major issues of having a client facing or embroiled in a lawsuit is determining what confidentiality, if any, a PR practitioner has in his or her communications with the client.  Currently courts do not recognize any privilege between a practitioner and client, despite personal and professional PR codes of ethics.  During a lawsuit’s discovery process, when parties obtain information about each other, a PR practitioner may be subpoenaed by the party suing the client and forced to disclose sensitive information about the client.  Moreover, if the practitioner refuses to answer these questions he or she may be held in contempt of court and potentially jailed.  If the practitioner does answer these questions and reveals damaging information about the client, he or she may then have to repeat this information publically in court.

Despite the harshness of this legal reality, there is some legal protection for PR professionals’ communications with clients.  Increasingly public relations practitioners have become part of a client’s legal team which creates an environment where attorney-client privilege can extend to the PR professional.  The extension of attorney-client privilege is important because courts universally recognize that attorney-client communications are confidential and, absent rare occasions, do not force attorneys to ever divulge these confidences.  However, whether or not this attorney-client privilege extends to practitioners is very situation-specific.  Given that this privilege extends to PR practitioners only in certain circumstances, practitioners should ask themselves four simple questions to determine if their client communications can be protected by attorney-client privilege.

1)       Was I retained as a PR practitioner by the organization or by their lawyers?

If an organization’s attorneys hire the PR practitioner there is a greater chance that attorney-client privilege protects the practitioner.  This is because the argument can be made that the PR practitioner was part of the legal strategy of the organization.  That makes the practitioner operate as a member of a legal team, which is privy to confidential information that relates directly to legal strategy and maneuvers.  If the practitioner is retained by the organization itself, and not their lawyers, making the case that attorney-client privilege attaches becomes more difficult because the practitioner may be viewed by courts as acting only in a PR, not legal, capacity.

2)      What is my level of involvement with the actual litigation strategy?

The closer a PR practitioner’s work is to the actual litigation the greater chance the practitioner’s communications with a client can be protected by attorney-client privilege.  Courts extending the privilege to PR practitioners look at the relationships between practitioners and attorneys and the role practitioners play within litigation.  The closer a practitioner can place themselves into the nexus of litigation strategy and an organization’s lawyers the argument for extending attorney-client privilege becomes stronger.

3)      Is the focus of my public relations strategy related to the immediate effects of litigation or its aftermath?

Timing is a very important element of extending attorney-client privilege to practitioners.  As mentioned above a close relationship between PR practitioners and legal strategy makes for a stronger the case for extending attorney-client privilege.  If a practitioner is working on public relations during the actual litigation timeframe there is a better case for extending the privilege.  However, when practitioners are dealing only with public relations and image management in the aftermath of a lawsuit or totally independent of the legal strategy, attorney-client privilege does not apply.  This is because practitioners are operating only within the context of a lawsuit rather than a direct part of the legal strategy.

4)      Am I operating as a public relations practitioner within the organization?

When a practitioner is operating as an in-house public relations employee or as part of the organization’s communications department there is a stronger chance for extending attorney-client privilege.  This is because courts view the internal corporate relationships as an environment where communications, legal, and other departments work in a close relationship with each other.  These internal communications are oftentimes done with a nexus of management, legal, human resources, and communications departments.  That work product and communication has a stronger chance for being protected under attorney-client privilege.

These four questions should provide practitioners with insight into their level of protection when dealing with clients facing lawsuits.  However, it is important to note there is no uniformly accepted approach to extending attorney-client privilege.  That means the extension of attorney-client privilege is not only dependent upon how and who the practitioners works with but where practitioners geographically practice.  However, practitioners’ awareness of the limits and protections afforded them under the law is important.  Knowing these legal boundaries of confidentiality not only creates a more aware PR practice but can aid in a more strategic and effective practice of public relations.

 

Cayce Myers, J.D., LL.M. is a doctoral student at the University of Georgia’s Grady College of Journalism and Mass Communication where he focuses on the intersection between public relations and the law. 

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