The Aspen Daily News says it best with its vaguely threatening tagline: “If You Don’t Want It Printed, Don’t Let It Happen.”
As crisis and reputational management practitioners, we are constantly creating strategies and communications surrounding sensitive and litigious topics, so we can’t really “not let it happen.” We can, however, take steps to maintain the confidentiality of our work on behalf of our clients, knowing that whatever paper or electronic trail we create can be used against us.
One of our attorney friends recently shared an article with us from the Corporate Counsel Business Journal that reaffirmed our understanding that confidentiality generally does not hold up between clients and public relations firms. In fact, when clients disclose confidential or privileged communications with PR consultants, the privilege waiver can be stripped away. In the case highlighted in the article, a large hospital was forced to turn over a confidential investigative report to opposition counsel because it had shared it with its PR firm, and therefore waived attorney-client privilege for the report.
Clients can face all types of situations that are sensitive, controversial and deal with legal issues. While the lawyer’s role is to protect and defend clients against litigation, crisis communicators are focused on managing, protecting and — if needed — rebuilding the client’s reputation. We work closely with companies on strategy, messaging, stakeholder communications and media relations before, during and after a crisis.
Most of this is considered internal “work product,” and means multiple drafts of communications and strategy documents. But can anyone involved in the strategy sessions reasonably expect that these sensitive materials remain confidential and shielded from anyone outside the privileged circle?
We understand everything is discoverable, but as a best practice, GroundFloor Media recommends contracting with and working through outside legal counsel to better protect privilege.
Every case is unique, but here are some best practices for keeping sensitive communications under wraps:
- Assume that everything you write or say could see the light of day.
- It’s harder to claim privilege when you’re working with 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.
- Presume that any communications device you use — iPad, iPhone, computer – and any communications app you use – Skype, Slack, 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.
Dressed down, attorney-client privilege means that certain communications between a client and an attorney are protected and kept confidential. To ensure attorney-client privilege, the following elements must be in place:
- In order for the communications between your PR agency and the client 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 isn’t enough.
- Confidential communications must be 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. For instance, numerous drafts of a news release and the final news release sent to the media aren’t privileged, even if outside counsel is involved.
- Communications must be “for the purpose of seeking legal advice.” In this case, communications professionals are providing more than standard PR counsel: They’re an integral part of the overall legal discussion and strategy.
Remember, these are just best practices, and an expectation of confidentiality doesn’t translate into a guarantee of confidentiality.