Some Thoughts on Thinking About Attorney-Client Privilege During a Crisis
The point at which a crisis hits — whether cyber attack, labor strike, food recall — is not the point at which to learn what attorney-client privilege is. The rules that govern the relationship between lawyer and client (in this case, your organization) should be part of your crisis communications training. And yet, there are some things to keep in mind specifically in the context of an unfolding crisis.
The attorney-client privilege covers conversations (including e-mail conversations) between lawyer and client. According to the privilege, those conversations don’t need to be disclosed to third parties because they are part of deciding legal strategy. There are exceptions to the coverage, and warring litigants will disagree about what is truly legal advice and, so, what is privileged. A judge decides.
A related concept is the work-product doctrine, which affords similar protection to drafts and other documents that are being prepared as part of a legal proceeding or to help in rendering legal advice.
The extent to which public relations professionals advising on litigation or crises are covered by the attorney-client privilege and the work-product doctrine is a gray area. Courts have gone in different directions on the question (the court cases have mostly been about litigation PR. But one rule of thumb is that judges are more likely to consider the PR counselors’ advice privileged if it pertains strictly to litigation rather than to, say, a company’s reputation.
Here’s the thing to bear in mind. While a crisis is not litigation, almost all crises these days have some litigation aspect. In other words, crises often lead to lawsuits or even criminal prosecutions. That factory fire could give rise to litigation over damaged property. That corporate downsizing could bring discrimination lawsuits.
This means that the conversations your organization and its advisers have about how to respond, and the drafts of documents produced in the middle of a crisis, can find their way into the legal process through discovery, as the evidence-gathering phase of litigation is known. There is less of a threat of disclosure if privilege applies.
So, the crisis team members need to understand (through training) these privilege issues. They need to understand the importance of, as much as possible, having a lawyer in on the conversations, including e-mail conversations. (This is easy if your outside lawyer is on CrisisResponsePro, where it is assumed she or he will see all Discussion Wall conversations.) They need to understand that privilege may be pierced and these conversations and draft documents, produced in the heat of a crisis, may be seen by hostile parties — so they must speak and write accordingly.
They should be advised to limit conversations to the crisis and potential litigation rather than getting into general reputation. This is difficult in a crisis because a crisis is often about maintaining one’s reputation. But even that has legal aspects; the legal nature of the discussion should be emphasized, including by pondering not only the company’s reputational exposure but its legal exposure. As much as possible, legal discussion should be separated from reputational discussion.
Of course, as we have said in regard to training, thought should be given to privilege before the crisis hits.
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