Public relations practitioners and attorneys often find themselves on opposite sides of the fence when dealing with crisis communication situations.
PR folks encourage their clients to be honest and transparent in a crisis, admit to any wrongdoing, show compassion and contrition and move on. Attorneys, who are paid to assume the worst, will encourage the client to admit to and say nothing.
As a marketing communications firm with extensive experience handling a wide variety of crises on behalf of clients, our GroundFloor Media (GFM) experts have learned that attorneys can be our best friends.
One of the key topics that PR practitioners should become very familiar with is attorney client privilege. As one attorney recently shared, start from the premise that everything we do and write is discoverable. Simply put, our work, including all client emails, plans, written communications (all drafts), texts and Skypes could be subpoenaed if your client is involved in litigation.
For example, you are writing a press release about the latest and greatest electric toothbrush for your client ABC Toothbrush Company, and like normal, you go back and forth with the client on language in the news release and create numerous drafts. You finalize the news release and send it out. Six months down the road, there is a product recall after the toothbrush catches fire and now there’s a class action lawsuit against ABC Toothbrush Company. All of your communications about the product, including all of your drafts, emails, comments, could become part of the lawsuit.
According to Bill Ojile, an attorney and partner at Armstrong Teasdale and former GFM client, in order to protect work product from having to be turned over in a court of law, it must fall under attorney client privilege. And to do this, outside legal counsel (or in-house counsel that is directly involved in the case), needs to be actively involved with the PR team. It’s not enough to mark the documents with “confidential: attorney client privilege” and copy the attorney on emails.
In the example of ABC Toothbrush Company, let’s assume you are now helping the client manage their crisis by preparing a communications strategy, including internal and external messaging, a holding statement, drafting FAQs, etc. In order to protect this communication, you must be actively working with the attorney on all communication and approvals. And to take it a step further, the outside counsel that was hired by ABC Toothbrush Company is now your client, and all payment for your services needs to come through them.
Ojile recommends that if you don’t already have a document destruction policy, create one and put it in writing. This includes drafts of all work product.
Often, we keep drafts of materials, such as a news release as a CYA for when a client wants to know why his quote was changed. You can go back to draft No. 7, for instance, to show how his boss was the one who made the change, not you. But having all seven drafts of a news release could be an issue if you have been subpoenaed and you have to turn over all drafts. We all include comments, language, track changes early on that could be misinterpreted in a court of law. Ojile recommends creating and following a policy to discard all drafts after three to six months.
Remember, if you are concerned that your client could end up in litigation, practice prudent paranoia and know how to protect your work written communications on behalf of your client.