NOVEMBER 15, 2013
WWW.PRWEEKUS.COM
MICHAEL LASKY
PR firms navigate the
attorney-client privilege
P
ublic relations pros are playing an increasingly important role
in helping organizations deal with crisis. Their work is done in
tandem with legal and business executives. Due to the sensitive nature of crisis situations, along with the potential for litigation
or government investigations, many PR firms are being retained by
their client’s internal or external legal counsel. This is done in an
effort to extend the attorney-client privilege to the work product of
PR practitioners.
A recent, highly publicized federal case is a reminder of what happens in this arena when the “I’s” are not dotted and the “T’s” are
not crossed. In McNamee v. Clemens, a federal court ordered former
baseball great Roger Clemens to produce emails and other documents between his Houston-based PR counselor, Joe Householder,
and Public Strategies, Inc., Householder’s firm at the time.
In this lawsuit, Brian McNamee, Clemens’ longtime former
trainer, claimed the star pitcher defamed him by accusing
McNamee of lying and manufacturing evidence that Clemens
used performance-enhancing drugs. To support his case, McNamee sought the production of emails and documents exchanged
between Clemens and the PR firm retained by his legal counsel to
provide services “with respect to media relations advice and counsel.”
Clemens withheld communications with his PR firm, asserting
the agency was working at the direction of legal counsel and, therefore, his work was protected from disclosure by the attorney-client
and work-product privileges.
A PR firm’s work acting as an agent for a lawyer to help develop
a legal strategy may serve as a basis to extend the attorney-client
privilege to the work product of PR agencies. Courts assess whether
the function of the PR agency in assisting the law firm is “materially
different” from services it would have performed independent of its
work with the party’s lawyers.
However, the simple act of retaining a PR consultant – by a party
to an investigation, actual or anticipated litigation, or its counsel –
does not, on its own, render communications among the attorney,
client, and PR personnel privileged. For example, PR services
including review of press coverage, calling media outlets to comment on litigation, and providing general media strategy aimed
at protecting public image and reputation generally fall outside of
the attorney-client privilege.
In appropriate cases, courts have upheld the extension of the
attorney-client privilege to a PR agency. In another widely celebrated case involving Martha Stewart’s insider trading prosecution,
In re Grand Jury Subpoenas, the work of the PR firm was shielded
from disclosure and covered by the attorney-client privilege. In that
case, a federal grand jury investigation had months of extensive press
coverage and the attorneys were concerned about the impact the
negative imbalance of the media reports would have on the investigation, as well as potential influence over the prosecutor in deciding
whether or not to bring criminal charges.
In contrast to the Clemens case, the In re Grand Jury Subpoenas
court found that the PR firm’s work had an impact on the attorney’s strategy and approach with respect to whether or not Stewart
could receive a fair jury trial in Manhattan. Thus, the court held that
the services performed by the PR firm and the communications by
the PR firm to Stewart’s lawyer satisfied an important three-part
test. First, the communications between the PR firm and Stewart’s
lawyer were made in confidence. Second, the services were necessary
to assisting the lawyer in providing Stewart with legal advice. Third,
the communications between the PR firm and Stewart’s lawyer were
predominantly of legal character.”
Ultimately, a PR firm claiming attorney-client privilege or workproduct protection bears the burden of establishing its application is
proper. In order to do this correctly, a PR firm seeking to withhold
documents on the grounds of attorney-client privilege must ensure
the production of a timely log describing the nature of the communications or documents with sufficient detail to enable the court and
the other party to assess whether the documents are in fact privileged. That was not done in Clemens, but it was in In re Grand Jury.
PR firms taking on sensitive engagements in which litigation is
anticipated should pay very close attention in the following areas:
n Engagement letter. The PR firm should be retained directly
by legal counsel. Special care should be given to the specific language
in the engagement letter to show that the work of the PR agency
is necessary to influence the ultimate legal advice and strategy
provided to the client.
n Billing arrangements. A PR agency should invoice the law firm
directly for its services. If it must bill its client, these invoices should
be segregated from any other invoices that the PR firm provides to
its client for non-crisis work when it is not engaged by legal counsel.
n Walk the walk and talk the talk. PR executives should label any
documents being prepared (including emails) as “Attorney-Client
Privileged/Work Product Communications.” This reference helps
demonstrate that the PR firm believes it is working in tandem with
the attorneys to devise the overall legal strategy – and that a necessary
element of that assistance requires these communications. n
Michael Lasky is a senior partner at the law firm of Davis & Gilbert
LLP, where he heads the PR practice group and co-chairs the litigation
department. He can be reached at mlasky@dglaw.com.