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legal

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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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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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