By Gil Rudawsky, Rockford Gray Partner
The scrappy Aspen Daily News has one of the best mottos in the business: “If You Don’t Want It Printed, Don’t Let It Happen.”
We share a similar motto with clients facing a communication crisis: “Anything You Write, Email, Slack or Text Can Be Used Against You.” It’s not as jocular as the News’ motto. But it still rings true in our litigious world.
Clients can face all types of situations that are sensitive, controversial and deal with legal issues. While the attorney’s role is to protect clients legal standing, a good crisis consultant will protect their reputation. Crisis experts work closely with organizations on strategy, messaging, stakeholder communications and media relations before, during and after a crisis.
Most of this is considered internal “work product” and includes multiple drafts of communications and strategy documents.
But are sensitive materials marked “confidential” shielded from those outside your privileged circle?
It’s a tough question, and unfortunately the answer more likely “no.”
Nothing a communications team does to help a client during a crisis can be protected from the prying eyes of opposing legal counsel. They will likely subpoena the information. Assume that anything recorded, digitally or on paper, will be discovered.
Every case is unique, but here are best practices for keeping sensitive communications privileged, and some real-world explanations of legal terms.
Common-sense Communication tips
- Assume everything you write or say will be seen by the opposition.
- It’s harder to claim privilege when you’re working with in-house counsel; it’s better if the PR practitioner is working through the client’s outside counsel.
- All drafts of communications documents can be discoverable, not just the final document that becomes public.
- Presume that any communication device— iPad, iPhone that sends a private message — can be retrieved and be made public.
- For sensitive issues, pick up the phone. Don’t leave a paper trail.
Attorney-client privilege
- Dressed down, attorney-client privilege means certain communications between a client and an attorney are protected and kept confidential. To ensure attorney-client privilege, the following elements must be in place:
- For the communications between your agency and the client to be protected, an attorney must be involved in all communications. Think of it as a triangle: PR professional, client and outside counsel. Simply cc’ing legal counsel isn’t enough.
- Confidential communications must be between the parties involved. If the information is made public or a private conversation is held on a public elevator, then it’s no longer privileged. For instance, initial drafts of a news release as well as the final version are not privileged, even if outside counsel is involved.
- Communications must be “for the purpose of seeking legal advice.” In this case, communications professionals are providing more than standard PR counsel: They’re an integral part of the overall legal discussion and strategy.
Functional equivalent
For communications professionals working with sensitive material to ensure documents are privileged and kept confidential, PR teams must act as a “functional equivalent,” meaning in the role of an employee of the company/client. The PR practitioner must:
- Have information that is required to give informed advice.
- Have a continuous and close relationship with the client’s principals on matters critical to the client’s position in litigation.
- Perform work that the company can’t perform in-house (no internal PR team, or internal PR team doesn’t have the skills or bandwidth to do the work).
- Has authority to make decisions on client’s behalf.
- Serves as a translator by helping the attorney understand nonlegal concepts.
- But remember, privilege or acting as a functional equivalent can protect you from only the tamest storms.
About the author: Gil Rudawsky is a board member of the Colorado Freedom of Information Coalition. He specializes in issues and reputation management, and crisis communication. He began his career as a reporter in Aspen, and journalism took him across the country and then back to his native hometown of Denver, where he worked for the Rocky Mountain News. His journalistic skills – source development, research, credibility, storytelling, and curiosity – remain the foundation of his work with clients. He has experience working on a range of issues across sectors, including federal investigations, corporate and workplace issues, DEI and public advocacy campaigns. He provides expert-level strategic counsel, including on-the-ground support. He is a graduate of the University of Southern California, with a degree in philosophy.