Don’t Destroy the Attorney-Client Privilege!
It’s important for lawyers to properly structure their relationship with a strategic PR firm when a client needs help.
Shakespeare may have been considering how to get around the attorney-client privilege when he wrote, “There are more things in heaven and earth, Horatio, than are dreamt of in your philosophy.” (Hamlet 1.5.167-8.)
A direct communicaton between a lawyer and client is one thing, but what about one that flows between counsel and a strategic public relations firm retained to help with the legal strategy? Can that discussion remain private?
A recent case shines a harsh spotlight on how sloppiness can result in privilege shattering. The case is Behunin v. Superior Court, 9 Cal.App.5th 833 (2017), 2017 WL 977095 (Cal.Ct.App.). The dispute in question involved a highly publicized grand jury investigation of a celebrity facing criminal indictment. Nicholas Behunin and his public relations firm committed several mistakes, the most damaging of which was marginalizing the role of legal counsel.
Here are tips on how to protect your client, get your message out, and maintain the attorney-client privilege.
How to Do It Wrong
Behunin shot himself in the foot by saying he (not his lawyer) had sole credit for and ownership of the strategic PR firm’s work. In doing so, he created the perception his attorney played only a peripheral role and wasn’t actually controlling the PR firm’s work.
Behunin also said his attorney “merely acted as a liaison between myself and the public relations firm without knowledge of or connection to the substance of the [work].” 2017 WL 977095 at *2.
In a tale of two letters, different versions of the strategic PR firm’s contract surfaced that told very different stories. The redacted version used just the right words by claiming its goal was “to develop and deploy strategy and tactics of [the] legal complaint.” 2017 WL 977095 at *8. However, an unredacted earlier version made it clear that the PR firm was hired by and worked only for Behunin and that control was in the hands of Behunin and not the lawyer.
The court wasn’t amused, and the claim of attorney-client privilege went out the window. The lesson: Don’t allow the client to minimize the importance of legal counsel in the relationship.
Getting It Right
““The engagement letter must specify the law firm’s need to engage the strategic PR firm to employ its legal strategy. This makes the strategic PR firm an integral part of the legal team, and that is a critical distinction.””
The lawyer—not the lawyer’s client—must engage the strategic PR firm as part of his legal representation, and the PR firm must conduct its work accordingly. The engagement letter must be clear on this point and must specify that the PR firm is covered by attorney-client privilege and attorney work product. The engagement letter must specify the law firm’s need to engage the strategic PR firm to employ its legal strategy. This makes the strategic PR firm an integral part of the legal team, and that is a critical distinction.
An example of when privilege would cover communications occurs when the attorney engages the PR firm to “develop a litigation strategy or a plan for maneuvering a lawsuit into an optimal position for settlement.” 2017 WL 977095 at *8.
What’s more, you must be able to demonstrate that the PR firm brings outside expertise in dealing with sensitive situations. Courts tend to look askance at granting privilege for a general PR firm that has a pre-existing relationship with the client—sort of like trying to put lipstick on a pig.
It’s Not Me, It’s You
Attorneys understand how the privilege works. But many clients don’t. As a result, client conduct can unintentionally undermine the right to lawyer-client confidentiality.
Unlike the magical inoculation powers of a childhood “Cootie Shot,” once the strategic PR firm is engaged by counsel and privilege is established, everyone must work hard to protect from infection or, in this case, from waiving the right to confidentiality.
Attorneys must set ground rules for all communications, and everyone must follow them scrupulously. All written communication must be labeled “Privileged and Confidential — Attorney-Client Privilege,” and the attorney must be copied on all of them. The client can communicate directly with the strategic PR firm, as long as it’s done upon instructions from the attorney.
But know this: clients tend to become lax and let rules slide. Be vigilant, and constantly monitor all communications with the strategic PR firm. The truth has a way of surfacing. Make sure that the proper guidelines are in place. Remind the client as necessary. And as with any important work, don’t let things slide hoping no one will notice.
Adam D.H. Grant is a shareholder with Alpert, Barr & Grant. He supports the firm’s litigation practice and focuses on complex business disputes. Eden Gillott Bowe is the author of A Lawyer’s Guide to Crisis PR and president of Gillott Communications, a Santa Monica-based strategic communications firm.