Communication’s Slippery Slopes:

How Should Outside Counsel Handle Public Outreach Before and During a Trial? Talk too much and you risk infuriating the judge. Avoid the media and you appear to have something to hide.

by Michael N. Levy and Richard S. Levick

Even just a few years ago, many litigators may not have given much thought to the role of public communications during litigation or the legal complexities surrounding that role.

Today, however, these concerns are squarely on the front burner. The 24-hour news cycle and the effects of instant communications in the blogosphere underscore the impact that any prominent legal activity can have on the reputation of corporate clients and therefore on their success and even, ultimately, their viability as businesses.

As a result, corporate and even individual clients increasingly are demanding that outside counsel bring some PR capability to the table. Although volumes have been written to explain the best practices for litigation communications, litigators can really focus on two important issues.

First, what are the risks and benefits of public outreach during litigation? It is a question that allows for a broader picture of how and why communications campaigns are developed and the fundamental choices that have to be made in each case.

Second, how can companies and their lawyers work with communications professionals without exposing highly confidential and sensitive client information to discovery? It is a specific concern that relates directly to the larger, evolving role of the public relations adviser.

Strategic Alternatives

By "litigation communications," we mean a systematic effort to protect or enhance a client's reputation throughout the course of litigation. Ideally, public perceptions are affected in a way that both helps the case in court and has a positive impact on how audiences outside court perceive the client. A litigation communications strategy should begin well before any charges are filed and should continue for as long as the aftereffects of the case have any perceptible effect on the client's reputation.

From a purely legal position, a communications strategy can affect whether or not charges are filed or indictments handed down, as well as the outcome of settlement negotiations and, ultimately, the outcome of a trial.

From a nonlegal standpoint, litigation communications can affect the perceptions of customers, business partners, investors, and employees. At issue are both short-term and long-term perceptions. The bottom-line impact is measurable. For corporations, sales and stock prices are at play. For individuals, careers and public reputations hang in the balance.

As if either of these were not hard enough, the litigator's task is made more daunting by the reality that, in many cases, legal and nonlegal goals will conflict. A strategy that can increase the odds of victory in a court of law can sometimes wreak havoc on the client in the court of public opinion. A simple example would be a legal strategy that saves the most powerful evidence to be used as a surprise at trial but, as a result, leaves allegations of fraud or corruption publicly unrebutted for months or even years.

Conversely, in certain circumstances the actions needed to achieve favorable press coverage will disserve the client's legal position. For example, a litigant whose lawyers convene a press conference at the end of every day of trial testimony might garner favorable coverage during the trial, but the client and the lawyers are almost certain to anger the judge by doing so. Only when the communications adviser, the lawyer, and the client work together as a team can the client make a fully informed strategic decision to sacrifice one corporate interest at the expense of another.

The communications adviser must be brought into the planning process at the earliest possible opportunity, and the collaboration must continue through every stage. Every communications decision involves a choice to go on the offense or stay on the defense. Shall we attack our likely adversaries before they attack us, or shall we wait in anticipation of more favorable circumstances or a more receptive audience? Shall we contact the media before a story has broken or shall we try to fly below the radar and hope that the story never breaks?

The purpose of the litigation communications team is to make such decisions at every juncture, whether one is trying to avoid an indictment or the filing of charges, negotiate a favorable settlement, or prevail at trial. Here are some factors that can affect these decisions.

• A strategic communications "offense" can be designed to discourage prosecutors from pursuing charges, perhaps by influencing public opinion toward the belief that the charges are spurious. As prosecutors well understand, that sentiment, if widespread, can make it more difficult to persuade jurors to convict. Such an approach, however, often runs the substantial risk of infuriating prosecutors and steeling their resolve, particularly if they sense that you are trying to show them up in public. An alternative communications "defense" can sometimes succeed in keeping a client's profile low and avoiding public pressure on the government to bring charges. On the other hand, in a case that already has substantial public and media interest, a defensive strategy can leave the other side feeling that their version of events is unchallenged and, implicitly, unassailable.
• During or just before settlement talks, an offense will communicate strength and resolve. It may convince the other side that, at best, they've got a long fight on their hands. But if you publicly show too much substance-if you reveal in print or on TV the very points you expect to make in court-you may give your adversaries the precious gift of a pretrial opportunity to better understand and remedy the weaknesses in their own case.
• In preparation for trial, a strategic communications offense can create a climate of opinion that, you hope, will affect the outcome in your favor. The risk is ethical. You may be seen as trying to seed the jury pool, which can enrage the judge and even result in sanctions. The risk of a purely defensive strategy, in which you keep quiet and respond only to statements and events to which you absolutely must respond, is that the public, and hence prospective jurors, may wind up presuming guilt or liability. The benefit of a defensive approach is that your cards are still close to your vest. You keep all of your options open, you have tipped off nothing to the other side, and you maintain the sometimes critical element of surprise at trial.
• The risk/benefit analyses filter down to the tactical level, as well. Should you talk to the national media? The benefit is that you reach the broadest possible audience. The risk is that you may lose control of your own message and reporters determine what the world will read. Should you limit yourself to very specific media venues? The benefit is that you maintain control. The risk is that you limit distribution and perceived objectivity. The litigation communications team must counsel the client about which alternatives are advisable, what risks are presented, and how the client can minimize the risk of each choice. The role of the litigation communications professional in providing valuable insights to that team and, by extension, the client is hard to overstate-which brings us to an issue affecting the deployment of critical communications resources.

Protecting the Expert

The biggest obstacle to fully integrating the legal and communications teams, of course, is the risk that confidential information shared with the communications professionals will be disclosed to the adversary. The good news is that there is significant case law holding that information shared with nonattorney communications advisers can be protected by the client's attorney- client privilege. The bad news is that the collective legal precedent is by no means unambiguous: You cannot assume privilege. You must follow specific practices in order to ensure it-practices that are as important a part of a comprehensive communications strategy as knowing what you are going to say publicly and to whom you are going to say it.

A number of rulings show how slippery this slope can be. In the landmark case of United States v. Kovel (1961), which involved consultations with a nonattorney accountant, the U.S. Court of Appeals for the 2nd Circuit famously said that what is "vital to the privilege is that the communication be made in confidence for the purpose of obtaining legal advice from the lawyer. If what is sought is not legal advice but only accounting service . . . or if the advice sought is the accountant's rather than the lawyer's, no privilege exists."

The Kovel ruling compared the accountant to a "translator" in that "[a]ccounting concepts are a foreign language to some lawyers in almost all cases, and to almost all lawyers in some cases." In other words, because the lawyer's advice to the client is privileged and the "translations" are essential to the lawyer being able to advise the client, the translations should be privileged as well.

In other cases, privilege was denied. In United States v. Adlman (2nd Circuit, 1995), an accounting firm's litigationrelated work was deemed indistinguishable from all the standard, nonlitigation accounting work the firm had done for the client. The court even noted that the accounting firm's invoices lumped together the firm's litigation and nonlitigation services. In Calvin Klein Trademark Trust v. Wachner (2000), the Southern District of New York held that a public relations firm's work was not privileged because the firm had not performed any work for the lawyer beyond what it might have done if hired directly by the client.

Yet in that same district, the court in In re Grand Jury Subpoenas (2003)-which happened to involve a defendant named Martha Stewart-concluded that her criminal defense attorney would be "undermined seriously" if he could not advise his client on the effects of any public statements. In turn, the lawyer's ability to provide this advice to his client would be severely impaired without the counsel of a PR professional.

Such disparate rulings, though daunting, do not preclude us from reaching a few basic conclusions. As a rule, follow Kovel: Privileged communications are those that are made in confidence for the purpose of obtaining legal advice from lawyers. That is, the working relationship with the communications advisers should be structured so that the substantive communications and advice from the PR consultants are intrinsic and necessary to the lawyer's counsel to the client.

The devil still lurks in the details, however, as a litigant must demonstrate that the communications were indeed made in confidence and intended to obtain legal advice from lawyers. Toward that end, the disparate rulings suggest a number of very specific best practices to ensure that discussions with communications professionals remain privileged:

• The communications firm-preferably specializing in litigation communications-should be hired specifically to assist with current or anticipated litigation and not for traditional public relations.
• The litigation communications firm should be hired early in the legal process and be made part of the legal team. Waiting until near the end of the legal matter is not only debilitating and often fatal to the communications strategy, but it also undercuts the argument that the communications firm is a necessary part of the lawyer's provision of legal advice.
• A separate communications firm should be hired or an altogether new contract should be drawn up with the client's current PR firm, thus creating a discrete engagement with discrete responsibilities.
• The client should hire the lawyer first; then, the lawyer should hire the communications firm.
• The engagement should stipulate that the communications firm is being hired as a facilitator (in deference to the description of the nonattorney adviser in Kovel as a "translator").
• Invoices from the litigation communications firm should describe this facilitating function.
• The lawyer should arrange and participate in the initial conversation between the client and the communications firm.
• Ideally, the lawyer should be present for all subsequent communications between the client and the PR professional. At a minimum, the lawyer should direct and control those communications.

Notwithstanding all these efforts, there still may be a small category of information (for instance, particularly devastating information to be used on cross-examination) for which the lawyer believes that the risk of losing the tactical element of surprise at trial is so great that the information should not be shared with the communications professionals or anyone else outside the core trial team.

Given the need to balance both legal and nonlegal risks and benefits, however, this decision is ultimately the client's. But even if the client agrees with the attorney's assessment and chooses not to share this information with the PR firm, the lawyer must respect the role of the communications professional and be sure that the closely held information in no way undercuts the statements the communications professionals are making publicly.

The very fact that privilege in this context is an issue of such complexity and concern underscores the increasingly crucial role that communications professionals play in a variety of high-profile investigations and lawsuits. The more high-stakes the game, the more crucial the communications component-and the more certain that lawyers, PR professionals, and clients must be to protect the confidentiality of these sensitive discussions.

Michael N. Levy heads the white-collar/investigations and enforcement group at the law firm McKee Nelson in Washington, D.C. Richard S. Levick, esq. is president and CEO of Levick Strategic Communications.

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