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Attorney-Client Privilege Extended to Public Relations Services

By: dmc-admin//August 6, 2003//

Attorney-Client Privilege Extended to Public Relations Services

By: dmc-admin//August 6, 2003//

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Rice

Joseph A. Rice

Are conversations between a public relations firm and a lawyer protected by the attorney-client privilege? They are, according to a recent New York federal court decision, provided the conversations relate to the handling of the client’s legal problems.

The ruling (In re: Grand Jury Subpoenas Dated June 2, 2003 Directed to (A) Grand Jury Witness Firm and (B) Grand Jury Witness, Case No. M11-189 (S.D.N.Y. 2003)) stemmed from a grand jury investigation in which the U.S Attorney sought the testimony of the target-firm’s public relations consultant who had conversations with the company and who had asserted the attorney-client privilege in refusing to disclose those conversations before the grand jury. The PR executive also declined to produce documents subpoenaed by the U. S. Attorney’s office on the grounds that they constituted attorney-client work product. The U.S. Attorney’s Office then sought an order to show cause to compel the testimony.

The case involved a high-profile investigation which was the subject of a great deal of media interest. The target of the federal probe had hired public relations counsel to communicate with the media "in a way that would help restore balance and accuracy to the press coverage . . . [and] reduce the risk that prosecutors and regulators would feel pressure . . . to bring charges . . ."

Testimony from the public relations consultant revealed that the PR firm was hired because the client’s attorneys were concerned that "unbalanced and often inaccurate press reports about [the company] created a clear risk that the prosecutors and regulators conducting the various investigations would feel public pressure to bring some kind of charge."

The decision turned on the issue of whether the attorney’s efforts to influence public opinion through the use of public relations services "are services, the rendition of which also should be facilitated by applying the privilege to relevant communications which have this as their object."

U.S. District Judge Lewis A. Kaplan’s decision noted that a lawyer’s representation of a client often involves matters beyond in-court advocacy, including addressing media coverage — a function "not a matter for amateurs," the decision noted. "In some circumstances, the advocacy of a client’s case in the public forum will be important to the client’s ability to achieve a fair and just result in pending or threatened litigation."

"For example, lawyers may need skilled advice as to whether and how possible statements to the press — ranging from ‘no comment’ to detailed factual presentations — likely would be reported in order to advise a client as to whether the making of particular statements would be in the client’s legal interest," he wrote.

Ably representing a client includes functions such as giving advice on the wisdom of speaking publicly, trying to avoid or limit charges and aggressively seeking public vindication. "And there is simply no practical way for such discussions to occur with the public relations consultants if the lawyers were not able to inform the consultants of at least some non-public facts, free of the fear that the consultants could be forced to disclose those discussions."

The decision’s holding is noteworthy in establishing a five-pronged standard to be considered in determining whether a conversation might be privileged: "(1) confidential communications (2) between lawyers and public relations consultants (3) hired by the lawyers to assist them in dealing with the media in cases such as this (4) that are made for the purpose of giving or receiving advice (5) directed at handling the client’s legal problems are protected by the attorney-client privilege."

In applying the standard, the ruling found that the lawyer’s ability to "perform some of their most fundamental client functions would be undermined seriously if lawyers were not able to engage in frank discussions of facts and strategies with the lawyers’ public relations consultants."

The decision noted that the privilege applies only where the public relations firm is hired by the lawyer and the five requirements are met — not in cases where the client hired the consultant directly. Interestingly, the Court viewed communications which took place between the client and the public relations practitioner outside the presence of lawyers as privileged "provided the communications were directed at giving or obtaining legal advice."

The case reinforces the importance of considering public opinion and media coverage as part of the broad ambit of client representation and provides guidance in determining if the privilege previously granted to accountants and some other professional service providers might be ex
tended to public relations counsel assisting the lawyer in the rendition of legal services.

Joseph A. Rice is an attorney and principal with the public relations and public affairs firm Tries & Rice, LLC. To request copies of his articles dealing with media relations and related topics, go to www.TRPR.biz or send an email to [email protected].

© Copyright by Tries & Rice, LLC 2003.

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