As PR professionals, we work with clients in all types of situations that are sensitive and potentially controversial. While the lawyer’s role is to protect clients from and defend them during litigation, PR practitioners are often focused on managing, protecting and rebuilding the client’s reputation.
As part of this reputation management role, PR counselors work closely with clients on strategy, messaging, stakeholder communications and media training. Most of this is considered internal “work product” and entails many, many drafts of communications and training documents. But can we reasonably expect that these sensitive materials remain confidential and be shielded from anyone outside the privileged circle?
To better understand what can be protected from subpoenas and litigation if a client becomes in involved in a legal dispute, GroundFloor Media recently invited two experts, both of whom are partners in the Denver office of Faegre Baker Daniels.
Here are some of the key takeaways and best practices:
Simply put, attorney-client privilege means that certain communications between a client and his attorney are protected and kept confidential. However, in order invoke attorney-client privilege, the following elements must be in place:
- There must be an attorney involved and retained. For example, you work for a PR agency and your client is XYZ company. In order for the communications between your agency and XYZ to be protected, an attorney must be involved in all communications. Think of it as a triangle: PR professional, client and outside counsel. Simply CC’ing legal counsel is not enough.
- Must be a confidential communication between the parties involved. If the information is made public or a “private” conversation is held on a public elevator, then it’s no longer privileged. If you’re working on numerous drafts of a news release and finalize the news release and send it to the media, your news release, including all the previous drafts, comments and track changes are not privileged, even if you’re working through outside counsel.
- Must be “for the purpose of seeking legal advice.” In this case, you as the PR professional are providing more than standard PR services or PR counsel; you’re an integral part of the overall legal discussion and strategy.
For PR professionals who are working with highly sensitive material, how can we ensure that our documents are privileged and kept confidential? The only way this can happen is if the PR person is acting as a “functional equivalent,” meaning in the role of an employee of the company/client. The PR practitioner must:
- Have information that is required to give informed advice
- Have a continuous and close relationship with client’s principals on matters critical to client’s position in litigation
- Perform work that company isn’t able to perform in-house (no internal PR team, or internal PR team doesn’t have the skills or bandwidth to do the work)
- Likely to have information possessed by no one else at the client’s company
- Has authority to make decisions on client’s behalf
- Serves as a translator by helping the attorney understand non-legal concepts
There are steps a PR practitioner can take at the outset to help ensure that he or she is serving as functional equivalent, namely customizing the engagement letter and job description so that your communications with your client’s lawyers come under the protective umbrella of the attorney‐client privilege.
Other Important Tips
- Assume that everything you write or say could see the light of day
- It’s harder to claim privilege when you’re working with the in-house counsel; it’s better if the PR practitioner is working through the client’s outside counsel
- All drafts of communications documents can be discoverable, not just the final document that becomes public
- The more you have the lawyers involved, the more protected you are
- Presume that any communications device you use, iPad, iPhone, Skype, sending a private text message or tweet, and – of course – personal email, can be retrieved and could become public
- For sensitive issues, pick up the phone and don’t leave a paper trail
Not everyone who works in public relations needs to be concerned about attorney-client privilege and keeping your work product private. But, if you do work with clients who could be facing litigation, it’s best to know how to better protect yourself as a PR counselor from having your work subpoenaed.
For more information on this topic, I came across an article that may be helpful titled “Ensuring attorney-client privilege in crises.” Or, even closer to home, another article examined several cases in our state: “The Attorney-Client Privilege And Public Relations Firms In Colorado.”