PRCG | Haggerty CEO James F. Haggerty is now an Adjunct Professor of Law at his alma mater, Stetson University College of Law in Gulfport, Florida. He taught a class this spring on litigation communications called “Advocacy in the Court of Public Opinion.” An important part of the class was on why litigation communications is so important in the first place. We highlight that here.

Haggerty defined litigation communications as “managing the communications process during the course of any legal dispute or adjudicatory proceeding so as to affect the outcome or its impact on the client’s overall reputation.”

He made the point that “extrajudicial” communications of this type should be handled with the same seriousness and care as any other aspect of the case, including in court papers and in the courtroom. Yet, too many — most? — lawyers see this as distinctly not part of their job. With the rise of social media, endless streaming of court trials and ever-growing legal podcasts, we truly believe this is a mistake. Protecting a company’s or individual’s reputation outside the courthouse can be as important as the legal victory.

Knee-Jerk Reaction

As Haggerty pointed out in his Stetson Law class, “We won’t try this case in the media” is all too often the knee-jerk reaction of lawyers and clients alike. That means they don’t prepare for making public statements that might be necessary. The litigators and clients have the same view that leads so many organizations to neglect crisis communications: “Why would I plan for something that may not happen?”

But it may be in the best interests of the client to prepare to speak out publicly. And as Haggerty pointed out in his class and in a webcast we did in January on responding to potential attacks from President Donald Trump, this doesn’t mean at all that one should fudge the truth. As Haggerty said in the webinar, in the wake of public controversies like the Blake Lively case and other Hollywood and celebrity PR events, you hear a lot about spin doctoring and smearing. But effective public response is about facts and truth.

Of course, it is a typical lawyerly response that speaking out publicly about litigation violates local ethics rules. This vastly overstates the case. For example, Haggerty in his class pointed to Florida Bar Reg. R. 4-3.6 on trial publicity, which states that a lawyer shall not make a public statement “if the lawyer knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding.”

‘Reasonable Lawyer’

Yet, the rule goes on to say that “a lawyer may make a statement that a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer’s client.”

In other words, it is possible to ethically defend yourself in the court of public opinion.

Haggerty in his class also quoted the 1991 U.S. Supreme Court ruling in Gentile v. State Bar of Nevada (for you lawyers out there, the citation is 501 U.S. 1030, 1043), which concerned a lawyer who had given a press conference on a client’s behalf: “An attorney’s duties do not begin inside the courtroom door. He or she cannot ignore the practical implications of a legal proceeding for the client.”

We concur.

Photo Credit: Del Harper/Shutterstock

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