Attorney-Client Privilege Under Attack?

The Ides of March came one day early this year. At first glance, a California appellate court ruling on March 14th seemed to imperil the concept that the work of Crisis PR firms is protected by attorney/client privilege. This would be a serious reversal of long-standing legal precedents.

But not so fast. Don’t throw the baby out with the bathwater just yet.

Privilege does exist, unless someone messes up. That’s what happened in this case — although if you skim the 31-page ruling quickly, you may miss it.

Problem: For attorney/client privilege to apply, the strategic communications firm must be an integral part of the legal team. This means it must be hired by the lawyer as part of his legal representation of the client.

This is where things went south.

In this case — Behunin v. Superior Court (Schwab), the client screwed the pooch with ill-considered comments in which he took sole credit for and ownership of the PR firm’s work. This created the perception that the client’s lawyer played only a peripheral role and wasn’t controlling the PR firm’s work.

A redacted letter from the strategic PR firm appeared to say the right things, claiming its goal was “to develop and deploy strategy and tactics of [the] legal complaint.” But other material told a different story.

An unredacted earlier draft of the same letter admitted that all work by the strategic PR firm was the “sole and exclusive property” of the client (not the lawyer).

Further, the client said his lawyer “played no role in the creation or publication of [the material]. . . . [T]hat website and the content contained in the website were created by me and a public relations firm with which I was working. [The lawyer’s] only role was, at my specific request, to enter into a contract on my behalf with that public relations firm.”

In a coup de grace, the client said his attorney “merely acted as a liaison between myself and the public relations firm without knowledge of or connection to the substance of the website. The website always has been and remains my sole and exclusive property.”

Solution: In short, the client and his PR firm, in this case, shot themselves in the foot — many times over.

This ain’t the way do it. To protect privilege, a strategic communications firm must carefully structure the relationship to make clear it is part of attorney’s legal team. And it must conduct its work accordingly.

We do, assiduously. Confidentiality is at stake. There’s no room for carelessness.

But as a private investigator and good friend said earlier this week, “There’s always something.”


To celebrate the launch of our two books, we’ve made the Kindle version of each available for only $0.99! Check out  A Board Member’s Guide to Crisis PR and A Lawyer’s Guide to Crisis PR (Second Edition) on Amazon.

“Because Reputation Is Your Most Valuable Asset”

Gillott Communications is a Strategic PR firm. We’re Fixers. Crisis & Reputation Management. Litigation. Media Relations. Crisis Prep. More than half a century of expertise working with clients to resolve issues both in and outside the media’s glare — in their professional and personal lives.

You can reach Roger Gillott and Eden Gillott Bowe directly at 310-396-8696.

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