In any given year, our WordWrite team handles more than a dozen crises. Most never see the light of day. A few are the kind that dominate the headlines.
This work has earned our firm a quiet reputation for mitigating the public aspect of serious corporate crises. Clients, potential clients and (increasingly) their lawyers, frequently seek our counsel on crisis issues.
Much of this is a byproduct of our heritage in journalism and crisis communications. Our agency’s senior leaders have nearly 70 years combined experience handling crisis issues, both large and small.
In a crisis, our goal is to turn potential bad news into the best headline you never read. We often joke that it’s tough to win industry awards for quietly solving problems that are never in the headlines. The nature, sensitivity and privilege of confidentiality we enjoy with our clients prohibits us from discussing much of what we’ve done.
In Pennsylvania, however, the degree to which correspondence between agencies and their clients is protected has recently come under legal scrutiny that jeopardizes the ability of a PR firm to offer strategic guidance without potentially having that advice become public record.
In March of 2017, the Pennsylvania Superior Court ruled that attorney-client privilege does not apply to a company’s email correspondence with its PR consultants. Throughout a lengthy court battle and subsequent appeal, Excela Westmoreland Hospital claimed a document shared with its media relations firm was protected because the PR consultants were part of the legal team offering advice to the hospital. The court found that the PR agency had been hired only to handle a media event and not to aid in any consultation with attorneys on strategy – legal or otherwise.
To improve the likelihood that courts will recognize exchanges between clients and their PR agency as “protected,” leading law firms recommend that a company’s outside counsel hire a public relations consultant with deep crisis communications experience. It doesn’t matter if the client has an immediate need for PR support or an existing contract with a PR agency.
In fact, global law leader Reed Smith suggested in an article written for Corporate Counsel magazine that it might actually be preferable for clients to use a different crisis PR consultant from the one they are already using, especially if the client’s existing PR firm lacks crisis experience.
“(C)onsider a public relations firm specializing in crisis management to improve the odds that the company and its counsel will get the media advice needed, with the proper level of attention given to confidentiality and the legal purpose behind the retention,” the authors wrote.
Some law firms might argue their clients are better off following a strict “no comment” policy with the media. If that’s the case, why bother having a PR agency in the fold?
Former accounting giant Arthur Andersen is a prime example of how this strategy can backfire. In 2002, it was convicted of obstruction of justice for shredding documents related to its audit of Enron, which led to the subsequent high-profile scandal that destroyed the energy trading company.
Andersen’s attorneys always believed the firm would be vindicated. They focused on having their day in court and avoided use of the media to carry their message, which eliminated the possibility of potentially winning the hearts and minds of the people.
Andersen did win the legal battle but lost the PR reputation war.
Though the U.S. Supreme Court reversed the conviction three years later, the damage was done. Under taint of scandal and without an effective defense in the eyes of the global community, clients and employees abandoned the Andersen ship. Today, Arthur Andersen exists in name only after once employing more than 85,000 people worldwide.
During more than 15 years of handling crisis communications for dozens of organizations, we’ve been fortunate to work with many professional service clients, including several law firms.
That’s how we know law firms and PR agencies with a background in crisis communications can effectively collaborate.
Organizations grappling with a crisis need help preserving their reputation during the legal battles that play out in front of a media audience increasingly conditioned to follow the scandal du jour. Individual circumstances of a crisis dictate the degree to which counsel can share or comment on information related to an ongoing legal matter.
However, as we often advise our own clients, you can be responsive to the media (and other stakeholders) and protect your legal standing without using the words “no comment.”
Otherwise, like Arthur Andersen, your clients could be tried and convicted in the court of public opinion long before they have their day in actual court.
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Jeremy Church is a partner and the vice president of media and content strategies at WordWrite Communications. He can be reached at email@example.com.