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.