Articles by Levick Experts

When Martha Stewart faced criminal prosecution several years ago, it was, to use a twist on her trademark phrase, anything but “a good thing.”

Naturally, news reporters flocked around the domestic diva’s every move, pleading for any sort of public statement. The territory was perilous – for her, her defense team, and, ultimately, the outcome of her case. Her lawyers leaned heavily on communications specialists in deciding what to say and what not say to the hungry media.

To her advantage, a district court ruled that the conversations among Stewart, her legal team, and her communications advisors were privileged and, therefore, beyond the scope of discovery.

In the few years since that celebrated case, the media spotlight has shone even brighter on high-profile litigation as a 24-hour news cycle intensifies and the blogosphere proliferates. Corporate clients confronting such imbroglios increasingly collaborate with communications specialists as the wrong word can shred a defense and tear right through the corporate veil.

In response to such multifaceted challenge, an offense is sometimes the best defense as timely and assertive public statements can win in the court of public opinion and even derail a prosecutor’s momentum in the case. Sometimes, offenses backfire, providing redder meat for nightly reports and daily blogs, as well as angering prosecutors and even steeling their resolve.

No wonder corporations must now fret so over what is and what is not discoverable with respect to confidential information shared with communication professionals. Rulings vary widely, with as many courts denying privilege as affirming it. Analysis of court decisions underscores one fact: You can’t assume privilege.

The landmark case governing privilege for non-attorney advisors is United States v. Kovel. That decision ruled that attorneys rely on consultations with experts in the accounting field to best serve their clients, and that accountants serve as “translators” of accounting concepts into language attorneys can understand. Consequently, the client-attorney privilege extends to such “translations” by accountants for attorneys to pass on to their clients.

On the other hand, a 1995 decision in United States v. Adlman denied privilege because an accounting firm’s litigation-related work could not be distinguished from the non-litigation services it supplied the client. It didn’t help that the invoices for each type of work were indistinguishable.

While the legal record is thus ambiguous, there are still best practices to help ensure that communications remain privileged, out of discovery reach.

• Hire a communications firm early. The earlier in the process, the better. Doing so helps establish that collaboration with the communications firm is vital for the lawyers to defend their clients and is more likely to fall under the concept of “legal advice.”
• The client’s attorneys should hire a litigation communications team specifically to handle the public relations work for the litigation or anticipated litigation. The more specific the litigation focus of the communications team, the more likely will courts look favorably on the protection of privilege.
• The communications firm should contract through the law firm whenever possible. Doing so helps build a defensible wall of separation between client and communications expert.
• Lawyers drafting the contract to hire the legal PR team should stipulate that these non-attorney professionals are “facilitators,” thus invoking the Kovel umbrella. The client should also make sure that invoices from the communications firm underscore this equivalence.
• The lawyers should set up and preside over the early conversations between the client and the communications team. A member of the legal team should participate in most (and sometimes all) subsequent meetings and in strategy-oriented conference calls between the client and the PR firm. A lawyer should at least have input and some measure of control regarding these discussions. The presence of the lawyer should not, however, diminish the give-and-take among the legal, communications, and client team members.

While these guidelines can’t guarantee that a wily opponent won’t succeed in convincing a judge that information shared with communications professionals is discoverable, it does lay solid groundwork to fully protect your most sensitive discussions with non-lawyers.