By Michael C. Lasky
Rodney Dangerfield's famous retort "I can't get no respect" could well describe how most PR execs feel about how they are treated by lawyers. Even if the executive and the
lawyer are both working for a mutual client, there is all too frequently palpable tension between the two professionals. On the one hand, PR executives tend to err on the side of
transparency and disclosure. On the other hand, lawyers frequently counsel clients that "silence is golden" in an effort to avoid any potentially problematic statements.
So, is this tension between PR counsel and legal counsel inevitable? Are there strategies that both PR and attorneys can use to bring a "thaw" to their "Cold War?"
Respect is not given, but earned. So, the best way for a PR executive and legal counsel to work together is for each to have a working knowledge about the key issues affecting
the other professional's advice and thought process.
Several years ago I represented a company that was the plaintiff in a highly celebrated and closely watched case. The case was front-page news for at least two months in both
the national press and many trade publications. It had all the ingredients of a good story - big egos, big names, conspiracy theories and some "smoking gun" documents.
My client immediately brought in a well-respected PR firm known for crisis communications as well as my law firm to make sure the legal and PR strategy were in sync. It soon
became clear to my legal team, however, that even the senior partner at the PR firm was trying to provide advice without a solid understanding of the various stages of a lawsuit.
It wasn't necessary for the PR executive to know how to conduct a deposition, but it was necessary for him to know what a deposition is, and how and when it is used at a hearing
or trial. Similarly, "oral arguments", "hearings" and "trials" are different things, and the PR executive working with his client's lawyer will immediately lose credibility if he
doesn't know one from the other.
Lawyers could also benefit from understanding the media from the perspective of a public relations executive. Lawyers may simply be unaware of the very real time deadlines
that journalists face. The importance of a timely comment is something that lawyers may not fully appreciate. Lawyers may also not fully appreciate the negative effect of a "no
comment" response or an "unavailable for comment." Lawyers would be well served to discuss these issues with the PR exec hired by the client, or the client's in-house
communications staff.
PR pros would also be well served to have some familiarity with the consequences that might arise from some messages that they may disseminate on their client's behalf. The
Nike case that reached the U.S. Supreme Court is illustrative. (See PR NEWS, April 21, 2003; July 14, 2003 and Sept. 22, 2003.)
Nike's PR campaign itself became the object of a court fight when Marc Kasky sued Nike. Kasky alleged that Nike's statements constituted "false advertising" and that all of
Nike's statements and ads were "commercial speech." Unfortunately, the Supreme Court did little to reduce a corporation's risks of a lawsuit in disseminating a public statement.
Still, PR executives can help earn the respect of legal counsel by demonstrating a keen awareness of the different types of claims and how risk can be reduced by small changes
in the message being communicated. Here are some strategies:
- PR pros should undergo some in-house training with knowledgeable legal counsel to understand the difference between three types of claims: "facts," "opinion" and
"puffery." Facts can be verified objectively. Opinions, in contrast, cannot be "false or misleading" because they are not susceptible to objective verification. Puffery is
similarly not actionable because it is also subjective in nature. - Thus, the simple insertion of the words, "I believe" in a quote can completely change the issue of whether a claim is a "statement of fact" (which can be the basis for a
lawsuit) or an "opinion" (which even if it is the basis of a lawsuit, can be easily won).
While there is no "silver bullet" to guarantee the protection of the privilege, there are some practical ways to increase the likelihood that the attorney-client privilege will
extend to the lawyer's communication with public relations counsel. Here are a few:
- Have the law firm -- not the client -- retain the PR firm.
- Have the engagement letter state that the PR firm is acting at the lawyer's direction to develop legal strategy and advise on how best to protect itself from making public
statements that could be legally or otherwise damaging. - Have a separate engagement letter (perhaps with a separate public relations firm) for lobbying or other generalized PR activities that the client may undertake.
- Make sure the actual work performed by the PR firm correlates with what the engagement letter says. In other words, be careful to limit the work of the PR counsel to the
issues involved in the lawsuit, governmental investigation or other ongoing legal matters. - Remember, forewarned is forearmed. It is the best way for the PR pro and lawyer to earn mutual respect for the other and, in the process, work more effectively on their
client's behalf. - Public relations executives and lawyers should mark their emails and other writings as "attorney-client privileged communications"
Michael C. Lasky is a partner at the New York law firm of Davis & Gilbert LLP and co-chairs the firm's Litigation and Employment Department and chairs the Public Relations
Law Practice. He can be reached at [email protected], 212.468.4849.