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Litigation Communications

Let Litigation Lead The Blame Game

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Let Litigation Lead The Blame Game

It is easy to point fingers and to shift the focus of the core of any issue by finding others to blame. In dealing with a crises, such as the Flint Water Crises, the time and attention by those directly involved should be focused on resolving the problems and making sure the needs of those negatively affected by the situation, both short term and long term, are taken care of.

Instead of finger pointing, the state must focus on the people first and let the litigation determine who was at fault.  

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Trial by media

When the stakes are high in litigation – use the media to win your case

In law, public opinion matters so turn those key messages into a winning litigation strategy -- Lawyers are prevented from using the media as a tool to influence a judge or jury.  But litigation is a threat not only to a corporation’s bottom line but also to its reputation.  Winning in the court of public opinion can often times be more important than winning legal battles. In approaching litigation of high profile cases, lawyers should look at the big picture and beyond the facts and case law in representing clients.  Lawyers should counsel their clients to conduct a thorough assessment of the potential impact litigation will have on the company’s image, reputation, customer relations, investor relations and future business of that particular company.

Through a strategic and targeted communications plan, a company can protect its image, avoid any investor drop-off and continue to keep its customers.   As a result, a comprehensive legal strategy should also include a strategic communications campaign (find legal word for campaign) that works on a parallel track to litigation. While lawyers are preparing for trial, your pr counsel can manage the public environment surrounding the legal action. A strategic communications campaign can also help avoid litigation in the first place and become a holistic approach to avoiding litigation.  Through an on-going litigation strategy key stakeholders will have all the information they need to make informed decisions.

Quick tips:

  • Set the tone immediately you get wind of something
  • Conduct a vulnerability assessment
  • Communicate with employees and other key figures
  • Develop key messages and engage the media
  • Line up supporters and maintain momentum

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Preserving attorney-client privilege in retaining PR counsel

Work product generated from a public relations agency may or may not be protected under attorney-client privilege.  Recently, a judge in New York (United States District Court for the Southern District of New York) ordered documents given to Calvin Klein's (CK) PR firm by CK's lawyers that contained information related to a lawsuit with a licensee.

The PR firm was retained to manage the media and manage the message during the litigation to protect the CK label from negative publicity surrounding the trademark litigation.

Despite this ruling, there are steps you can take to make sure you are protected.  Steps such as:

  • Have your legal counsel retain the firm
  • Have communications from your PR counsel directed to your legal counsel
  • Label all communications “Attorney-Client Privileged”
  • Retain a media savvy lawyer to assist in the messaging in and out of court.

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The sands have shifted in the practice of law

Gone are the days when clients were only concerned about the legal ramifications of a lawsuit or legal quagmire.  Today, clients are often also concerned with how they are judged in the public eye and perceived by their customers, vendors and by their own families.

In protecting a client’s reputation, “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.”[i]  An attorney should take reasonable steps to defend a client’s reputation.

This is particularly important in an environment where news is reported “24/7” and at times even delivered instantaneously to our cell phones.  Likewise, with sales of newspapers and magazines at all-time lows, the media is hungry for a story even if no story really exists. Therefore, lawyers must be more diligent in looking at the big picture in protecting their clients’ interests in the court of law as well as in the court of public opinion.

[i] Gentile v State Bar of Nevada (Kennedy opinion), 510 US 1030, 1043 (1991).

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When your reputation is on the line

High-profile litigation involves not just the defense of the legal claim but also the protection of the client’s public image.  The normal orientation of defense counsel is toward protecting information from disclosure, but where a case has aroused public or media interest, a narrow focus on preventing disclosure can have broad negative effects outside the scope of the litigation itself.  In cases of that type it is wise for defense counsel to retain public relations counsel to assist with the public relations aspects of the defense.  Public relations counsel can coordinate public relations efforts with defense counsel in a way that helps to protect the client’s public reputation without jeopardizing the attorney client privilege.

 

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Retaining public relations counsel

[Part 2 - Litigation Communications]

The attorney-client privilege is generally preserved in retaining public relations counsel during the course of litigation.  However, it helps when your public relations counsel also happens to be a licensed attorney.  In fact, public relations seems to be a popular alternative career for attorneys.  In any event, defense counsel should exercise care to ensure that any privilege is preserved.  It also is preferable that the public relations firm be retained by and report to defense counsel rather than the client.  This will help in mounting a coordinated defense and also help to preserve attorney-client privilege by ensuring that all communications pass through defense counsel.

Likewise, public relations counsel should include defense counsel in all stages of communication and consult closely with defense counsel in developing key messages to make sure it complements the legal strategy rather than puts it in jeopardy.  Defense counsel should be present during any conferences involving public relations counsel and the client.

Given the stakes in today’s litigation environment, defense counsel may find it helpful to develop a relationship with a public relations firm, so that it can be ready to assist on short notice if and when it is needed.  For example, some public relations firms are known for their expertise in crisis and reputation management while others focus more on soft promotions and publicist work.  Some public relations firms focus specifically on litigation communications practice, and even have attorneys and registered lobbyists on staff.

Many of the larger law firms have a chief marketing officer that they can rely upon for initial help or guidance, while others have already retained a public relations firm to assist with matters that are beyond the routine. In any event, defense counsel should look for a public relations firm that has relationships with the media, both local and national, on-line, in-print and on-the-air.

In preparing for litigation or creating a legal strategy to meet a clients objectives attorneys must consider the impact on their client’s businesses and reputations.  Reputations take years to create and only seconds to destroy.  Engaging public relations counsel early can create a comprehensive strategy that will help clients – and defense counsel -- succeed.

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Media Tips for Lawyers, Representing Clients In The Public Eye

article IMG_0344 Screenshot 11:27:12 12:03 AM 484359_10151114446092757_1756183311_n IMG_0839 Today’s legal market demands a broad range of business solutions lawyers can provide their clients. A strategic communications plan can prove to be an extremely helpful tool lawyers can provide their clients, in anticipation of or during litigation, or just an overall part of their legal strategy.

Every Company Is A Media Company

Today, every company with a website, blog or social media presence is a media company and anyone with access to a computer, smart phone or tablet, has the potential to damage a company’s reputation. However, at the same time with digital and mobile technology, companies have more opportunities to take their message directly to the consumer, to protect, enhance and elevate their reputation.

For companies such as Domino’s and The BBC, to celebrities and politicians such as Lance Armstrong and Elliott Spitzer, lawsuits today are no longer fought in the courtroom.  Cases are being tried in the media, with the potential to damage brands and reputations alike.

Clients Turn To Lawyers As Spokesperson

In general, a lawyer’s job is to represent their clients in a court of law, not in the media, and many are uncomfortable in talking to reporters.  However, client’s today are turning to their lawyers not just for legal support, but to help protect their reputation and often speak on their 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. Just as an attorney may recommend a plea bargain or civil settlement to avoid the adversarial consequences of a possible loss after trial, so too an attorney may take reasonable steps to defend a client’s reputation and reduce the adverse consequences of an indictment, especially in the face of a prosecution deemed unjust or commenced with improper notices. A defense attorney may pursue lawful strategies to obtain dismissal of an indictment or reduction of charge, including an attempt to demonstrate in the court of public opinion that the client does not deserve to be tried.”

In today’s media saturated environment, where we can share pictures or Tweets from our phone instantaneously with the world, that may even end up on CNN or FOX News, many clients will turn to their lawyer for advice, counsel and a response.  So lawyers should have a basic understanding of interacting with the media, on line and off.

Balancing advocacy for clients and legal ethics

The Bar is concerned that attorneys often speak with authority and that whatever they say can help shape public opinion.  As a result, a good rule of thumb in talking to the press or in any public arena is to stick to discussing the facts or explaining the process. In making statements to the media during or in anticipation of trial, a lawyer, or their client’s spokesperson, should avoid making any statement that would "have a substantial likelihood of materially prejudicing an adjudicative proceeding."

In other words, “don’t say anything you couldn’t or wouldn’t say in court.” This includes speculations on a criminal defendant’s guilt or innocence, opinions on any participant’s credibility and character, conjecture on why a participant would not submit to examination, and, generally, any information that is not likely to be admissible – Just stick to the facts.  For example:

  • The claim, offense or defense involved
  • Information contained in a public record
  • That an investigation of a matter is in progress
  • The scheduling or result of any steps in litigation
  • Undisputable facts
  • A request for assistance in obtaining evidence and information necessary of the investigation
  • A warning of danger concerning the behavior of a person involved.

A lawyer, however, may make statements that may be required to protect a client from substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer’s client.  A statement should be limited to such information that is necessary to mitigate the recent adverse publicity.

Crisis + Litigation Communications

The sands have shifted in the practice of law.  Gone are the days when clients were only concerned about the legal ramifications of a lawsuit or legal quagmire.  Today, clients are often also concerned with how they are judged in the public eye and perceived by their customers, vendors and by their own families.

A litigation communications plan, blends both legal expertise and media savvy, by helping to frame messages during the litigation to help preserve, protect and enhance the reputation of the parties. It also helps to monitor what others are saying about the case and the company and works to control the message, address concerns and build relationships to help the company emerge from the litigation with its reputation intact. An effective litigations communications strategy, works to enhance legal efforts by providing clarity on complex legal issues, before and after litigation. However, the process should start long before a matter goes to trial and even before the firs documents are filed. The goal of litigation communications is to guarantee that the client's public image is completely aligned with the legal team's efforts and strategy, while ensuring the company's message is understood outside the courtroom. As a result, communications experts should be retained early on in the process, to monitor the media, craft the messages for key audiences, respond where and when appropriate and otherwise be involved.

In retaining a public relations professional, it is important that you find someone who understands the interplay between the law and legal process on one side, and the media and public opinion on the other. Managing these complex communications in a timely and efficient manner can play a vital role in the cost-effective mitigation of a crisis or legal matter.

Tips for dealing with the Media

Despite certain rules imposed on lawyers, reporters, journalists and bloggers may contact you based on a case that you are working on or a client that you represent, or perhaps even the issue areas you work in everyday.  Alternatively, you may contact them, to help position your client in the public eye or to promote yourself as an expert on an issue that is receiving a lot of attention in the news.  Regardless of how a reporter comes to you, in dealing with the media it is important to understand what they want and how you can best work with them.

The media is interested in a story that others want to read, watch or listen to.  News is something that is:

  • Timely,
  • Relevant, and
  • Sometimes entertaining.

Reporters will most likely report on stories that are:

  • First
  • Trends
  • Unusual or unique
  • Involve celebrities, kids or dogs and
  • General human-interest stories.

When the reporter asks you if he or she can ask you a few questions, try to get a little more information from them. Find out what the reporter wants to know.  Depending on when they call, they are most likely on deadline and looking for a quick sound-bite.  If you need to, ask if you can call them back and think about what you want to say.  Then call them back in a timely manner.

Here are a few more tips in terms of working with the media:

Know why you want to talk to the media -- What do you hope to achieve in talking to the media?  Before you talk with a reporter, know what you want to accomplish, even if they catch you by surprise.

Know your audience -- Then understand who your audience is. This will help you craft the appropriate messages that resonate with the right audience.

Know what you want to say – Once you know why you want to approach the media, and who the audience is, know what you want to say.  Have a few key messages written out that you want to convey to the reporter and think of a few questions they may ask -- and be ready to respond.

Do your homework – Know what the reporter writes about and covers. Be familiar with their latest story and angle.  Go on their website, perhaps they have a blog or check them out on Facebook, Linkedin and Twitter.

What not to do with the Media:

Never say “No Comment” or “Because a lawsuit was filed we cannot comment on active litigation.” Instead say something more general and stick to your messages, or “I can’t tell you that now, but what I can tell you is..."

  • Don’t repeat a negative question or phrase
  • Stop using jargon or technical lingo
  • Try not to go “off the record”
  • Never lie
  • Don’t attack competitors or sell yourself

During the interview – Think of it as a debate not a conversation, unless you are talking to Stephen Colbert:

  • A reporter is using it to gather information or to find a story
  • Know your objectives and stick to your key message
  • If the reporter gets off message, bridge back to your key message
  • Answer only the question asked
  • Stick to your messages

Don’t hide anything you don’t want them to find later. When speaking to the media be concise and thorough and tell them everything that you can with in reason. You do not want them finding out information on their own and then confronting you when you are not prepared to answer their questions.

If you don’t know, don’t tell and don’t worry – Don’t panic if you are asked a question during an interview that you do not know the answer to. Be honest and tell them that you do not know the answer but that you would be happy to look into it and get back to them. Never attempt to make something up.

Silence. When being interviewed, once you have made your point do not be intimidated by silence. Silence is not a bad thing during an interview, it’s a tactic used by reporters to get you to talk, in the hopes of getting you to say something that you shouldn’t have.

“Off the record” or “For background only” – As a general rule, if you don’t want it in print then don’t say it.  However, an ethical reporter will respect what you are trying to say and will work with to make sure what your saying is accurate. It helps to know the reporters covering the issues you are working on and have a good working relationship with them. It also helps to not be confrontational and to respect them for having a job to do and that you want to work with them in preparing their story.

Timing – Just as a lawyer sticks to deadlines prescribed by the court, reporters have deadlines to keep and times they need to either file stories or air them. You will develop better relationships with a reporter if you are sensitive to their deadlines.

Preparing for an ambush – If a reporter catches you by surprise, stop in your tracks, address the reporters questions (you can be vague if you want), then let them know that you have another commitment and that you will get back to them by their deadline.  If a reporter calls by phone  take their message, find out what they want and when their deadline is,  and get back to them in a timely manner.

Working with the media – It is about relationships.

Corrections -- Don’t be afraid to correct the reporter or ask them to revise their story to be accurate.

Monitor the media – Know what is being said about you, your clients, your firm and your industry.

Anything else? – This is always the last question in any interview, so be prepared to summarize your key messages; say anything that you forgot to say before; or clarify any statement that needs further explanation. s not deserve to be tried.”2

Social Media Tips

Social media is becoming more than a tool for us to stay in touch with our friends or family, it is becoming a new area to look out for our client’s interests and/or a new medium to promote our practice. It also is our opportunity to control the message and to clarify misinformation. However, interacting with those using social media sites, such as Facebook, Twitter, LinkedIn, Pinterest or YouTube, is a little different than working with the traditional media.

Know the influentials –  There are millions of people using a variety of social media sites that it is important to know who the influential people are.  There are a number of social media sites that you can use to track the influentials.

Monitor the chatter – Once you know who to follow you should monitor the chatter. Listen to the tone of the comments and questions and participate where appropriate. A good way to monitor the media is to create Google Alerts, Twitter feeds or Facebook updates. Even if you don’t join the conversation, be aware of what people are saying about your company on different social media platforms.

Engage the community – Once you are able to gain an understanding of social media and how it works, go ahead and begin to engage the community. However, in using social media one’s credibility is gained through transparency, honesty, relevance and value.

Crisis Management

If a crisis ensues, you may not have the time to monitor social media sites and find the right time to engage people on line. Should that be the case, you should be more proactive, reserve the various domain names with your name, your companies name and variations thereof  so should something happen, you can go on line and communicate directly to the masses.

FOIA

The documents you file in court are public documents and subject to FOIA. Don’t be surprised if you see the language from your depositions, motions or others in an article or even on a graphic on television. So, if a reporter asks for a document, it will go along way if you just give it to them but feel free to redact sensitive or privileged information.

Hiring PR Counsel

Lawyers need to understand what is news and how to best communicate that news to the public.  If attorneys will not provide such services, then they should build strategic partnerships with public relations firms to help them. To meet the needs of today’s businesses, lawyers will need skilled advice regarding how to position their clients before the media, while legally protecting their clients.  Seeking PR counsel is an important aspect of any legal strategy. Even if the issue is a small matter, there is no way we can tell how public opinion can or will shape the outcome of a case. Therefore, in engaging public relations counsel:

  • Have the lawyer retain the PR firm as opposed to your client directly, to try to preserve attorney-client privilege.
  • The public relations counsel should consult with both the client and attorney at every step of the process.

Once a public relations firm is engaged, they will, depending on the strategy: help with messaging and identify the appropriate media to communicate those messages or even act as your client’s spokesperson. They also should monitor the media and find ways to enhance, protect and further your client’s reputation.

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We are all vulnerable to crises....So be prepared!

There is one time you are guaranteed to get public attention – during a crisis. Within seconds your corporate and individual reputation which took years to build can be tarnished. A crisis can occur in any organization at any time with devastating consequences. After all, it is the public that defines reputation, not the company. So as long as humans work there will be mistakes, controversy and blow ups .... and crises. We all know it can’t happen to us. But it can and happen when we least expect it. So how should we respond? And more importantly, what can we do make sure IT does not happen to us. Will we ever listen…greed, ambition and ignorance will give rise to scandal, intrigue and real life drama…..Government transparency and corporate governance further pave to make us each vulnerable.  The Internet allows us to expose misdeeds or blow the whistle to millions including employees, customers, vendors and others within seconds and with photos or videos.  Nonetheless, in every crisis there is opportunity (Chinese proverb).

The best plans don’t have automatic responses, but a number of questions for the crisis team to ask, include:

  • What are the business goals in addressing this crisis?
  • Who do we need to help?
  • What information has been gathered?
  • What don’t we know?
  • Who can help us?
  • What must we do now to protect our employees, customers and shareholders?

The company needs a set of messages that set forth the company’s position in what best describes its actions, its values and its approach (No more than three). Also, make sure any investigation is thorough and independent. And while it is important to communicate to the public through the media, the general counsel must make sure any response does not make the situation worse.

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From oil spills to government inquiries and hostile takeovers, crises can be avoided

Avoiding and dealing with potential crises is critical to an organization’s success.  Successfully identifying, mitigating and managing risk in today’s business environment calls for a team of business-savvy and experienced legal and PR professionals with the insight and experience to create effective and immediate solutions in such a volatile market. Food, cosmetics, pharmaceuticals and other consumer products are increasingly being subjected to product recalls. A recall attracts attention, affects the manufactures reputation and could result in litigation or even a class action lawsuit. And public officials are also vulnerable, not just in how they are governing, but in how much they know about what their top advisors are doing as well.

In this mobile age, where news is distributed as it happens, reputations that took years to create die in an instant. Attorneys are the first responders to help minimize the risk and help their clients  respond or react.

News today does not break in the morning paper, it happens in the blink of a tweet. That’s where the traditional news gets their news. People trust the opinions of their peers rather than a reporter reading a teleprompter. Even news anchors ask for opinion over twitter. As a result, what would have been a minor news story that went away over night, now becomes a national phenomenon that is being discussed on the Tonight Show, The Colbert Report or on Perezhilton.com.

How can companies protect themselves in the age of mobile media? How can they be prepared to respond for the next crisis? What can they do to avoid a crises. How can companies keep up on the instantaneous news cycle?

Lawyers are uniquely positioned to deal with crisis and only one firm in Michigan is experienced to handle the media. Learn from our experience. They can help you avoid, manage and recover from very difficult situations.

Lawyers with experience in working with the media, can work with in-house and outside counsel to help develop an effective communications strategy that supports any legal strategy.  They should work with organizations to manage every aspect of a crisis, from initial response to corrective action, investigations and if needed, representation during civil and criminal and legislative actions.

But the best defense is a strong offense. Knowing where an issue can bubble into a problem, knowing who to go to in the media to help share your story and who among your friends, colleagues, co-workers and clients you can turn to for public support and advocacy, can go along way in minimizing any crisis that gets out of your control.

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Preserving a company's trust and reputation: Communicating the right messages in wake of bankruptcy.

Today’s economy puts a lot of companies and individuals in difficult positions where they must choose what needs to be done for their economic survival. Should a company choose to file for bankruptcy, it does not mean they are going out of business or putting their company up for sale. In most cases, bankruptcy means restructuring the company to be smarter, leaner and more efficient. In communicating a company’s approach to file for bankruptcy, it is important to carefully communicate the reasons why and possible outcomes as to avoid any misunderstanding of the company’s true intention. As a result, transparency and honesty in one’s financial situation is vital to making sure that key constituencies will not read into the companies actions. Instead, the company must be forthright as to everything they file with the court since many people following the company, particularly a public company, and industry will likely go online and read the documents surrounding the bankruptcy.

As a result, perhaps companies should set up a special website or hotline to assure customers and vendors that their products will still get services, their contracts will still get honored or where they can go to learn more information in general. It also will help assure employees that the company will continue to operate.

In filing for bankruptcy, it is important to prioritize key constituencies and determine the best way to communicate with them. For example, communicating to investors/shareholders may be different in how you communicate with vendors or customers. Investors want to know how sound their investment will be; if the company plans on staying public and the plans for emerging from bankruptcy. Customers want to know if their warranties will be honored, where they can go for service or who they can call if they have an issue with the product or service. Vendors want to know their place in all this. If they should continue with their current production or performance and if they will get paid and when?

Once the company files for bankruptcy, it is equally important to constantly be in touch with your core constituencies. For example, GM, Chrysler and the federal government each took us along for the ride as they filed for bankruptcy, announced their restructuring and emerged as a new company. Yesterday, Border’s filed for bankruptcy and send out notices to their core constituency, ensuring business will go on and service will continue, but changes will have to be made. (See the attached email to Border Reward members.)

Depending on the situation, this can be done through regularly scheduled news conferences, Twitter updates, Blog postings, investor conference calls, media conference calls and the like. However, in communicating with shareholders, debt holders, investors, vendors, customers and employees, it is important to determine what the key messages will be and how you will follow up with them. In today’s social and mobile media age, companies need to often trump their own announcement by getting the information out fast and first.

Regardless of the messages, it is important to be in periodic communication with key publics. This includes before filing, during and after the bankruptcy. A company should not want key stakeholders and casual observers to read into their actions or lack thereof. As a result, communicating will be crucial to the company’s sustainability on they re-emerge form bankruptcy.

For public companies specifically, in communicating to external audiences, they are communicating the market, which can impact stock prices and the market as well as have the potential to dramatically alter the image the public has of the company. As a result, PR counselors must work with the company’s attorneys in crafting the right message and a message legally permissible under securities laws and regulations. There also is a certain protocol in communicating those messages to particular audiences.

In communicating messages during a bankruptcy or wherever litigation is involved, should be given the opportunity to sign off of what is being communicated. At the same time, attorneys must be able to see the big picture as to why PR counsel is even involved and why they must communicate through the media. Attorneys need to be open about what is being communicated and with the idea that they are working to protect and at times, enhance their public perception.

In addition, companies should actively monitor the on-line chatter about their company and their industry and work to quell and misinformation being communicated about the company or its employees. This also includes actively maintaining relationships with vendors, consumers and others and working with them throughout the bankruptcy.

Today, an individual and a company is only as good as their reputation. In general, with the economy the way it is, we understand that in tough economic times, companies as well as individuals may have to file for bankruptcy. As long as there is honesty and maturity in how we communicate our problems or situation, people will understand your situation. Being up-front and proactive in your actions will help position your company for future success and go along way to bolstering your individual and corporate reputation, while putting to rest and potential negative ramifications from the filing.

Filing for bankruptcy is not the beginning of the end for a company. It is a new beginning and a second chance for the company to better serve its customer. It also presents the company with the opportunity to re-evaluate its’ business and to re-emerge as a new company. In emerging from bankruptcy, companies also have the opportunity go back to its core, re-focus, re-brand and re-emerge leaner but stronger and refreshed to create a new beginning.

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Border's Bankruptcy - Communicating the right messages

Today’s economy puts a lot of companies and individuals in difficult positions where they must choose what needs to be done for their economic survival. Should a company choose to file for bankruptcy, it does not mean they they are going out of business or putting their company up for sale. In most cases, bankruptcy means restructuring the company to be smarter, leaner and more efficient. In communicating a company’s approach to file for bankruptcy, it is important to carefully communicate the reasons why and possible outcomes as to avoid any misunderstanding of the company’s true intention. As a result, transparency and honesty in one’s financial situation is vital to making sure that key constituencies will not read into the companies actions. Instead, the company must be forthright as to everything they file with the court since many people following the company, particularly a public company, and industry will likely go online and read the documents surrounding the bankruptcy.

As a result, perhaps companies should set up a special website or hotline to assure customers and vendors that their products will still get services, their contracts will still get honored or where they can go to learn more information in general. It also will help assure employees that the company will continue to operate.

In filing for bankruptcy, it is important to prioritize key constituencies and determine the best way to communicate with them. For example, communicating to investors/shareholders may be different in how you communicate with vendors or customers. Investors want to know how sound their investment will be; if the company plans on staying public and the plans for emerging from bankruptcy. Customers want to know if their warranties will be honored, where they can go for service or who they can call if they have an issue with the product or service. Vendors want to know their place in all this. If they should continue with their current production or performance and if they will get paid and when?

Once the company files for bankruptcy, it is equally important to constantly be in touch with your core constituencies. For example, GM, Chrylser and the federal government each took us along for the ride as they filed for bankruptcy, announced their restructuring and emerged as a new company. Yesterday, Border’s filed for bankruptcy and send out notices to their core constituency, ensuring business will go on and service will continue, but changes will have to be made. (See the attached email to Border Reward members.)

Depending on the situation, this can be done through regularly scheduled news conferences, Twitter updates, Blog postings, investor conference calls, media conference calls and the like. However, in communicating with shareholders, debt holders, investors, vendors, customers and employees, it is important to determine what the key messages will be and how you will follow up with them. In today’s social and mobile media age, companies need to often trump their own announcement by getting the information out fast and first.

Regardless of the messages, it is important to be in periodic communication with key publics. This includes before filing, during and after the bankruptcy. A company should not want key stakeholders and casual observers to read into their actions or lack thereof. As a result, communicating will be crucial to the company’s sustainability on they re-emerge form bankruptcy.

For public companies specifically, in communicating to external audiences, they are communicating the market, which can impact stock prices and the market as well as have the potential to dramatically alter the image the public has of the company. As a result, PR counselors must work with the company’s attorneys in crafting the right message and a message legally permissible under securities laws and regulations. There also is a certain protocol in communicating those messages to particular audiences.

In communicating messages during a bankruptcy or wherever litigation is involved, should be given the opportunity to sign off of what is being communicated. At the same time, attorneys must be able to see the big picture as to why PR counsel is even involved and why they must communicate through the media. Attorneys need to be open about what is being communicated and with the idea that they are working to protect and at times, enhance their public perception.

In addition, companies should actively monitor the on-line chatter about their company and their industry and work to quell and misinformation being communicated about the company or its employees. This also includes actively maintaining relationships with vendors, consumers and others and working with them throughout the bankruptcy.

Today, an individual and a company is only as good as their reputation. In general, with the economy the way it is, we understand that in tough economic times, companies as well as individuals may have to file for bankruptcy. As long as there is honesty and maturity in how we communicate our problems or situation, people will understand your situation. Being up-front and proactive in your actions will help position your company for future success and go along way to bolstering your individual and corporate reputation, while putting to rest and potential negative ramifications from the filing.

Filing for bankruptcy is not the beginning of the end for a company. It is a new beginning and a second chance for the company to better serve its customer. It also presents the company with the opportunity to re-evaluate its’ business and to re-emerge as a new company. In emerging from bankruptcy, companies also have the opportunity go back to its core, re-focus, re-brand and re-emerge leaner but stronger and refreshed to create a new beginning.

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Who's watching what is posted on social media sites?

YouTube logoAnother case to watch is one emerging from (Turin) Italy that involves four Google executives who are charged with defamation and violating the privacy of an autistic youth by allowing a (2006) video of the child being abused to be posted on YouTube. This case is being closely watched by the public relations community as it has far-reaching implications for sharing video and other content on the Internet. The defendants are: chief legal officer David Drummond, former chief financial officer George Reyes, senior product marketing manager Arvind Desikan and global privacy counsel Peter Fleischer. All have denied any personal or professional wrongdoing. When the video sparked outrage, Google removed it. The company cooperated with Italian authorities and police found the youths, who were sentenced to community service.

The issue is: Who polices peer-to-peer video sites? Some rely on the users to flag inappropriate content. But once the video is out there, what is the responsibility of the company? What responsibility does the user have to avoid posting clearly offensive junk? Stay tuned to YouTube for its conclusion.

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Communications gap between lawyers and the media

Earlier this week, Montieth & Co., a special situations management advisory and communications consultancy released the results from their 2009 "Media and the Law Survey." The results show, that reporters are trying to cover more litigation than ever (60% of reporters polled), and the need help understanding the core issues of the cases, especially in securities actions."

In today's litigious environment, journalists need to be able to explain complex legal matters to audiences outside the courtroom. Lawyers have a real opportunity, not to affect a legal outcome, but to help protect their clients reputation in the court of public opinion.

However, the survey also found that only 31% of the respondents said that lawyers were effective in helping them understand the cases and the legal issues involved -- and most found plaintiff's attorney were more helpful.

Reporters surveyed also said they "wish lawyers were more open to talking to reporters about their cases." And others would like more background on cases.

Lawyers have an important role in protecting their clients. At the same time, that should not come as a sacrifice to protecting their client's reputation in the public eye. In some cases, one's reputation is more important than any legal outcome.

As a result, lawyers should either become more media savvy or retain a public relations firm that is, because the chances are, if you are not talking to the media ... your opponent is.

*For the record, only half of those surveyed found PR firms to be helpful. So we all have to step-up our game.

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Law Firms Must Adjust To Meet Client Demands

From the boardroom to the bedroom, government affects everything we do. So its time to embrace it and learn how we make government work for us. And perhaps more important, in addition to providing our clients with a legal remedy, we must also provide them the opportunity to seek legislative remedies or use the court of public opinion to reach their business objectives. Many clients are turning to law firms to assist in the public policy process, yet many firms are ill equipped to handle government relations and are not well versed in public relations as a legal tactic. Yet it is the lawyer who knows the law and knows what laws would best benefit their clients as well as how to best position their clients in either a court of law or court of public opinion. It is the lobbyist that knows how to effect legislative change and to assist in drafting the right laws. And it is the brand manager, who knows how to position the issue and the client so that everyone emerges a winner.

In addition, with government getting bigger and more complex, and government funding becoming sparse, regional mid-sized law firms are well equipped to create a practice that blends law, media and public relations with the legal expertise many mid-sized firms have.

Also, with budgets getting tighter, the government is seeking greater partnerships with the private sector. With a solid client base, law firms are well-positioned to assist clients in finding creative opportunities within the government and sound private sector solutions for public problems.

More and more issues in Congress and the state legislatures are having a direct impact on business. Businesses are learning that they can no longer sit on the sidelines when government decisions directly impact their future. Likewise, with tough economic times, businesses are looking for new areas to expand. And despite tough economic times, securing a government contract remains one of the most sought after business development opportunities.

Businesses today cannot afford to ignore the legislative process and adjust to new laws once they are passed. To be successful, business must stay current on legislative issues that could have repercussions on their business or industry. They must also seek to effectuate change where appropriate making lobbying, government relations and public affairs a natural extension of the legal services law firms are already providing.

By integrating strategic communications and public affairs into the practice, combining law, policy, politics and strategic communications, attorneys will provide new and existing clients and integrated approach to their legal problems. This practice group will provide firms with new channels to cross-sell firm services and maintain core clients by expanding into new areas to complement your firm’s legal practice. A successful public affairs and strategic communications group will not only help stand out from other law firms, but it will enhance their core practice groups, advance client relations and increase firm profits, while developing new business.

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Today's legal market demands broad business solutions

Today’s legal market demands a broad range of business solutions lawyers can provide their clients. A strategic communications plan can prove to be an extremely helpful tool law firms can provide their clients. For example, in today’s 24/7 media culture, companies lack access and lack control to the media who cover their industry and to the people that talk about them on-line. In addition, businesses often find themselves navigating a complex environment that requires dealing simultaneously with litigation, governmental and regulatory actions, media scrutiny, and public perception. Often times, business strategy demands a multi-disciplinary approach of legal action, public relations and government relations. Knowing where these issues converge can help protect your reputation and enhance your position in the marketplace.

For example, last week, an article in the Michigan Lawyer's Weekly unveiled new court rules directing the jury not to Twitter about the case before them or turn to the Internet for information beyond that which was presented to them in the court. Social media is not only becoming some thing for us to stay in touch with friends, it is becoming a new area to look out for our clients interests and/or a new medium to promote our practice.

Also, in just seven months a number of key bills have been enacted by Congress and President Obama, including: The economic stimulus package; Expansion of SCHIP; Pentagon acquisition reforms; & other key reforms. Congress returned this week to tackle a number of difficult issues, before their August recess, including: Energy & Climate legislation; Health Care Reform; FY 2010 Appropriations; Reauthorization of the transportation bill; Financial regulation; food safety, and Immigration reform.

Attorneys in high-profile cases should extend their services beyond the courtroom and in the court of public opinion. Therefore, lawyers will need skilled advice as to how to position their clients before the media or in front of the legislature, while protecting their legal rights.

Seeking PR counsel is an important aspect of representing clients in high-profile cases. Even if the issue is a small matter, there is no way we can tell how public opinion can or will shape the outcome of a case. Therefore, in engaging PR Counsel:

Have the lawyer retain the PR firm as opposed to your client directly, to try to preserve attorney-client privilege;

The PR counsel should consult with the client, only in the presence of an attorney and first talk things over with the attorney to seek their support and buy-in for the PR strategy.

Once a PR firm is engaged, they will (depending on the strategy): Asses the situation, review any media to date;

Create key messages;

Create talking points for key audiences including, staff, vendors, clients and the media;

Using the key messages, educate and sensitize the media to mitigate damage or control the story;

Facilitate interviews; and,

Provide media/spokesperson training.

“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." See Gentile v State bar of Nevada (Kennedy opinion) 510 US 1030, 1043 (1991). Just as an attorney may recommend a plea bargain or civil settlement to avoid the adverse consequences of a possible loss after trial, so too an attorney may take reasonable steps to defend a client’s reputation…in the court of public opinion

In today’s fast-paced environment, where it may take years to build up one’s reputation and only seconds to destroy it, a lawyers role as advocate extends to managing their clients’ reputations inside and out of the courtroom.

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Juries all a-Twitter

This week, Michigan Lawyers Weekly features a story about jurors tainting themselves by Tweeting from the jury box or accessing the Internet from their mobile phones to learn more about the cases they are presiding on. See Juries all a-Twitter, 23 Mich.L.W.847, July 6, 2009. Like the media, the courts need to adjust to the constantly changing landscape of how we communicate and how we access information. The Internet and mobile devices such as the iPhone or Palm provide jurors and others access to instant information about the cases before them. The Michigan Supreme Court amended rule 2.516 of the Michigan Court Rules to prohibit the use of computers, cell phones or other electronic devices during the trial to obtain information on the case. This is mandatory, not discretionary. The rule was amended in response to a number of cases being thrown out due to curious jurors, researching defendants and witnesses and then Tweeting their opinion before any opinion was rendered.

Social media sites, such as Facebook, Linkedin, MySpace and YouTube also provide excellent opportunities for plaintiff's counsel to mine the Internet for information to throw out a case or force a settlement. Mined appropriately and thoroughly, attorney's can learn a lot about the parties to a lawsuit or potential lawsuit.

And finally, some lawyers are using the Internet, the same way they were using television to argue their client's case in the public eye. Instead of turning to investigative reporters or "problem solvers," they are now turning to the Internet to bolster their client's position.

In the article, I caution attorneys to do their own due diligence and see what is being said about their clients on-line. This includes social media sites such as Twitter, You Tube, Flickr, various blogs and other on-line feeds and sites. The same is true for the opposing party, including opposing counsel.

Attorneys may want to consider retaining PR counselto monitor the Internet and/or use the Internet and social media to preserve, protect and enhance their clients reputation on-line. Attorneys may also want to consider hiring a computer forensics or e-discovery firm to see what information they can find on-line. For now, attorneys can set up Google alerts, RSS Feeds, or find other ways to monitor the media.

Regardless, we all need to do a better job of monitoring the Internet. Just as we should secure our credit report every six-months to monitor for identity theft, we should periodically Google or Bing our name, our company name, client's name or other key terms we should be keeping an eye out for.

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Today’s legal strategies demand public relations

Q&A with Daniel Cherrin, attorney, lobbyist and PR executive High-profile litigation involves not just the defense of the legal claim but also the protection of the client’s public image. Where a case has aroused public or media interest or has the potential, it is vital that attorneys are prepared to face the media. After all, when the damage is done publicly the legal outcome becomes irrelevant.

In today’s 24/7 news cycle, attorney’s through their public relations counsel, can position clients to avoid litigation, minimize risk and protect their reputation, by blending law, policy, politics and strategic communications to provide clients an integrated approach to resolving or avoiding legal problems.

As an attorney, lobbyist and public relations executive, Daniel Cherrin has counseled a wide range of clients during crisis situations providing critical insight and recommendations to deal with situations and how to communicate effectively under less than the best conditions. In the following interview, Daniel draws on his experience in responding to questions about using public relations as an effective part of a legal strategy.

Q: Why do lawyers need to be concerned about public relations?

A: Today’s business environment demands an aggressive strategy to resolve issues legally while protecting one’s reputation publicly. Unfortunately, most people do not realize they need PR until they get a call from a reporter, subpoena from Congress or it is otherwise too late. As a result, lawyers need to be more than legal counselors or advocates. They need to be familiar enough with how perception is created within the public eye and how to use the media effectively to manage that perception. Therefore, the potential impact any litigation will have on a client’s image, reputation, investor relations and future business must be considered in creating a legal strategy.

In preparing for litigation or creating a legal strategy to meet a client’s objectives attorneys must consider the impact on their client’s business and reputation. Reputations take years to create and only seconds to destroy. Engaging public relations counsel early can create a comprehensive strategy that will help clients succeed.

Q. Why is it important to have relationships with public relations experts?

A. In today’s economy decisions are made based upon perception and reputation. Therefore, it is important to have the necessary relationships to make sure a client’s reputation is protected should any litigation become public or even to help position the client to remain out of the public eye. But in establishing relationships with public relations firms, it is important that the PR counsel be sensitive to the legal ramifications of their actions as it relates to protecting the company’s reputation.

To protect a client’s legal interests and also to preserve the client’s reputation publicly, counsel should consider engaging public relations counsel early in the process, so as to develop a complementary strategy and get advice on how to deal with the media and protect the client’s public relations interests. In developing a broad legal strategy that embraces both legal and public relations concerns, lawyers need to look beyond the facts and include public relations concerns as a comprehensive strategy. Public relations counsel can assist attorneys by managing the public relations issues while the attorneys focus on the traditional elements of mounting a case. If both the legal and the public relations components are to succeed, it is essential that both legal counsel and public relations counsel coordinate their efforts.

Q. How can lawyers protect their client’s reputation?

A. A lawyer who is going to represent a client outside the courtroom must become more comfortable in talking freely about their client’s case. Lawyers, trained to protect client confidences and to control information, have a natural tendency to answer only the questions that are asked and to give no more information than is necessary to resolve the issue. In the view of the public, however, information and communication are the two factors that build trust and go a long way toward preserving one’s reputation.

A PR firm can train attorneys in media relations and crisis management so they can feel more comfortable in talking with the media or dealing with the immediate concerns of a crisis. A public relations counselor can employ specific tactics to protect the reputation of a company or an individual leading a company while reinforcing issues legally. For example, in the public eye, we are presumed guilty if we respond to a reporter’s question with “no comment.” A better way to respond to a question you do not want to answer or are not ready to answer is to deflect it, by saying something like: “That is a very good question, one that we are looking into at the moment. As soon as we learn something new, we will get back to you promptly.” Lawyers must be more diligent in looking at the big picture in protecting their clients’ interests in the court of law as well as in the court of public opinion.

Q. Can attorneys handle the PR directly?

A. Given the stakes in today’s litigation environment, attorneys may find it helpful to develop a relationship with a public relations firm, so that it can be ready to assist on short notice if and when it is needed. For example, some public relations firms are known for their expertise in crisis and reputation management while others focus more on soft promotions and publicist work. Some public relations firms focus specifically on litigation communications practice, and even have attorneys and registered lobbyists on staff. Regardless of the case, it helps to establish those relationships early.

Q: If a company would like to learn more about protecting their reputation when faced with potential litigation, how can they reach you?

A:I can be reached by email at dcherrin@northcoaststrategies.com or by telephone at (313) 300-0932.

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Twitter Transparency

Two recent lawsuits are challenging on line transparency, beginning with Twitter. St. Louis Cardinals manager Tony La Russa sued Twitter over an account created in his name and Detroit-based PR firm, Tanner Friedman is asking Twitter to reveal the name(s) of those who set up an account and fake agency page on Twitter. (*In full disclosure, one of the named partners at Tanner Friedman is a distant cousin of mine.) According to the St. Louis Post-Dispatch, La Russo's lawsuit claims someone created an account in his name and sent out "derogatory" remarks, thus damaging his reputation, causing "significant emotional distress."PC World recently commented on La Russo's lawsuit, stating that "Twitter's "Impersonation Policy" clearly states that "parody impersonation accounts" are perfectly permissible. As long as the profile somehow indicates it isn't meant to be legit, it's A-OK by Twitter standards." Although La Russo and Twitter are trying to work out a settlement, TannerFriedman just wants answers as to who is using Twitter to try to damage the reputation of a PR firm and wants to hold that person accountable.

According to a recent post on the TannerFriedman blog, a response states that "Legislators in Texas last week passed an “online harassment” bill making it a crime to impersonate people on social media sites." The bill now awaits the governor's signature. According to On Line Media Daily, Rep. Linda Sanchez (D-Calif.) has introduced a federal measure.

This is uncharted territory for lawyers, lawmakers and public relations professionals. In fact, today, websites and social networking sites are being extremely cautious about what is posted on their site as to limit their liability. However, given the enormous popularity of Twitter, Facebook, Linked IN, You Tube and others, some post or parody is bound to slip through the wires.

To avoid any damage and mitigate any loss to your business and reputation, you should constantly monitor the Internet to avoid anyone to cause you any further damage and continue to work to increase your profile among key sectors, including on line media.

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Today, every company is a media company

While getting our name in the paper is always exciting it is no longer adequate in establishing ourselves as experts. While you may be focusing on securing media about you and your company, your competitors are most likely focusing on an on-line strategy to establish themselves as experts. An effective strategic communications campaign must include traditional media (such as newspapers, magazines, television and radio) and an on-line presence. An easy way to build credibility on-line is to establish relationships with influential bloggers. But bloggers like journalists, do not want "public relations" professionals to send them press releases. Like business today, it all about "relationships." As a result, to effectively build relationships with bloggers, it is important to have the following strategic plan (or some variation): (1) Identify the influential bloggers in your industry -- Visit various websites, review various blog rolls and look at the more traditional media to learn which reporters also have blogs and which are the most respected and visited. (2) Go where the bloggers are -- Attend trade shows or review their blogs to see where they are going. For a list of vents, look into www.upcoming.org. (3) Read the blogs of the people you want to cover you. Let them know you are reading their blog by sending them a timely note about an issue they just blogged about. Include a link to your website or your blog. Also add public comments to posts on their blog. Bloggers like anything that will help increase their rankings and readership. Remember, we all have an agenda. (4) Send bloggers interesting stories especially about other people. Direct them to news items or send them links to new blogs and videos. (5) Start blogging -- This is your opportunity to share your story the way you want it and for other people, including bloggers, to learn about you. (6) Build links -- In order to get the most traction on-line, look to establish links to other bloggers and websites, boost your websites search engine optimization (SEO) and search engine advertising (SEA), list your company in various on-line directors, and look become an on-line expert on sites such as "About.com." And if you have a book or host events, send bloggers a copy of your book and invites to your events. Then, when you need something from a blogger, such as announcing a new product, they will be more apt to listen to you since you already have an on-line presence and have reached out to them with useful information.

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IN THE PUBLIC EYE: PROTECTING A CLIENT’S REPUTATION

The sands have shifted in the practice of law. Gone are the days when clients were only concerned about the legal ramifications of a lawsuit or legal quagmire. Today, clients are often also concerned with how they are judged in the public eye and perceived by their customers, vendors and by their own families. In protecting a client’s reputation, “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.” An attorney should take reasonable steps to defend a client’s reputation.

This is particularly important in an environment where news is reported “24/7” and at times even delivered instantaneously to our cell phones. Likewise, with sales of newspapers and magazines at all-time lows, the media is hungry for a story even if no story really exists. Therefore, lawyers must be more diligent in looking at the big picture in protecting their clients’ interests in the court of law as well as in the court of public opinion.

Today’s legal strategies demand public relations

Today’s business environment demands an aggressive strategy to resolve issues legally while protecting one’s reputation publicly. As a result, lawyers need to be more than legal counselors or advocates. They need to be familiar enough with how perception is created within the public eye and how to use the media effectively to manage that perception. Therefore, the potential impact any litigation will have on a client’s image, reputation, investor relations and future business must be considered in creating a legal strategy.

To protect a client’s legal interests and also to preserve the client’s reputation publicly in a high-profile case, defense counsel should consider engaging public relations counsel early in the process, so as to develop a complementary strategy and get advice on how to deal with the media and protect the client’s public relations interests. In developing a broad defense strategy that embraces both legal and public relations concerns, lawyers need to look beyond the facts and include public relations concerns as a comprehensive defense. Public relations counsel can assist defense counsel by managing the public relations issues while defense counsel focuses on the traditional elements of mounting a defense. If both the legal and the public relations components are to succeed, it is essential that defense counsel and public relations counsel coordinate their efforts.

Protecting a client’s reputation

A lawyer who is going to represent a client outside the courtroom must become more comfortable in talking freely about their client’s case. Lawyers, trained to protect client confidences and to control information, have a natural tendency to answer only the questions that are asked and to give no more information than is necessary to resolve the issue. In the view of the public, however, information and communication are the two factors that build trust and go a long way toward preserving one’s reputation.

A public relations counselor can employ specific tactics to protect the reputation of a company or an individual leading a company while reinforcing issues legally. For example, in the public eye, we are presumed guilty if we respond to a reporter’s question with “no comment.” A better way to respond to a question you do not want to answer or are not ready to answer is to deflect it, by saying something like: “That is a very good question, one that we are looking into at the moment. As soon as we learn something new, we will get back to you promptly.” Retaining public relations counsel

The attorney-client privilege is generally preserved in retaining public relations counsel during the course of litigation. However, it helps when your public relations counsel also happens to be a licensed attorney. In fact, public relations seems to be a popular alternative career for attorneys. In any event, defense counsel should exercise care to ensure that any privilege is preserved. It also is preferable that the public relations firm be retained by and report to defense counsel rather than the client. This will help in mounting a coordinated defense and also help to preserve attorney-client privilege by ensuring that all communications pass through defense counsel.

Likewise, public relations counsel should include defense counsel in all stages of communication and consult closely with defense counsel in developing key messages to make sure it complements the legal strategy rather than puts it in jeopardy. Defense counsel should be present during any conferences involving public relations counsel and the client.

Given the stakes in today’s litigation environment, defense counsel may find it helpful to develop a relationship with a public relations firm, so that it can be ready to assist on short notice if and when it is needed. For example, some public relations firms are known for their expertise in crisis and reputation management while others focus more on soft promotions and publicist work. Some public relations firms focus specifically on litigation communications practice, and even have attorneys and registered lobbyists on staff.

Many of the larger law firms have a chief marketing officer that they can rely upon for initial help or guidance, while others have already retained a public relations firm to assist with matters that are beyond the routine. In any event, defense counsel should look for a public relations firm that has relationships with the media, both local and national, on-line, in-print and on-the-air. A useful source of information on public relations firm is the website maintained by the Council of Public Relations Firms at www.prfirms.org.

In preparing for litigation or creating a legal strategy to meet a clients objectives attorneys must consider the impact on their client’s businesses and reputations. Reputations take years to create and only seconds to destroy. Engaging public relations counsel early can create a comprehensive strategy that will help clients – and defense counsel -- succeed.

[i] Gentile v State Bar of Nevada (Kennedy opinion), 510 US 1030, 1043 (1991).

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