LESSONS LEARNED #4

AVOIDING PR MISTAKES DURING LITIGATION

By James E. Lukaszewski, APR, Fellow PRSA

As Published in PBI Media LLC's PR News, May 15, 2000

Copyright © 2000, James E. Lukaszewski. All rights reserved.

Several times each day I receive faxes from agencies and companies upon whose pages appear the words "Privileged and Confidential," along with some fine print. I have some extraordinary news for you, the moment these documents are sent to me they are no longer privileged.

Most things in PR can be done by practitioners without serious consequence should mistakes be made. But when it comes to legal matters, understanding privilege is crucial because a single fax sent out with a cover sheet erroneously marked "Privileged and Confidential" can essentially void privilege between attorney and client.

There's a second concept called Work Product Doctrine, which is also misused. Even if there is a lawyer in the room or a lawyer asks a public relations practitioner to do something, don't assume that a situation of work product privilege has been established. It has to be the right attorney making an explicitly protected assignment. Informality can waive privilege.

There's another big surprise, Work Product Doctrine is very thin protection. While the use of outside consultants by attorneys in preparation for litigation is a fairly standard part of today's legal practice, if the information generated is sufficiently valuable or sufficiently difficult for opposing parties to obtain, quite often the court will require disclosure of work product through the discovery process.

The lessons for the PR practitioner are write less, say less, do less, make sure it's important, but most of all done at the specific direction of an attorney who is authorized to assign work to consultants in the legal matter at hand.

Work product is created when unique information and special expertise is required as a lawyer prepares for trial. Work product can be materials, reports, notes, or data developed by the attorney, or collected, developed, or prepared by outside specialists, investigators, consultants like public relations practitioners, accountants, engineers, etc. at the direction and under the supervision of an attorney preparing for or in anticipation of litigation. Great caution is required of non-lawyers preparing information.

Attorney-client privilege protects certain confidential communication between lawyer and client from discovery in civil, criminal, or administrative proceedings and work that directly reflects the mental processes and legal strategy of the attorney. Work product protection for consultant working materials can be overcome provided the other side can show the court a compelling need for the information, and in other ways as well.

The specifics of WPD can vary from jurisdiction to jurisdiction, and you must consult an attorney for specific guidance. But here is some useful general information about WPD:

1. To obtain WPD protection, you must:
   • Work at the direction and under the supervision of an attorney;
   • Work in confidence; and
   • Have a legal purpose (usually trial preparation) that is explicitly stated and understood.

2. To preserve WPD protection, you must:
   • Set up separate "Legal Matters" files, which are usually locked.
   • Limit access and distribution only to those who are authorized by counsel.

3. To maintain protection for specific documents you prepare, you should:
   • Address or copy them to the attorney who requested the work.
   • Mark them appropriately, i.e., Privileged & Confidential, Attorney/Work Product.

Waiver of WPD protection can occur very easily. Here are just a few of the ways WPD protection can be waived:

• Give or expose documents to unauthorized third parties.
• Verbalize privileged instructions or material from protected documents to unauthorized individuals.
• Give protected material to a witness to refresh his/her memory in preparation for testimony.
• Communicate privileged material to other attorneys who are not a part of the litigation.
• Indiscriminate use of "Privileged & Confidential, Attorney/Work Product" markings on inconsequential documents, or use without specific legal direction to do so.

Virtually any unauthorized disclosure of information to parties without specific direction or authorization by counsel (ask for and follow the attorney's direction) can waive WPD protection.

There are other ways WPD can be waived. WPD is, at best, a very fragile attorney-client relationship-based process that must be absolutely maintained if it is to stand up to scrutiny or legal challenge.

By the way, this brief discussion is not legal advice. Always consult an attorney for specific legal guidance.

So, ditch all those fax cover sheets and other documents that use the word "Privileged." They aren't. One sharp opposing attorney who spots this situation could open the floodgates and destroy the privilege protection of all information. Be knowledgeable, be cautious. Careless or unauthorized litigation visibility management activities can have devastating legal consequences for your clients.

James E. Lukaszewski APR, Fellow PRSA, is recognized as one of America's top authorities on litigation visibility management. Although not an attorney, nearly half of his practice involves civil, criminal, or class action litigation. He'll be conducting a pre-seminar workshop, "Managing PR and Legal Concerns During a Crisis" on Monday, June 19, 2000, 8:30 a.m. to 12:00 noon at the Advanced Crisis Management Seminar sponsored by PR News, the PRSA, and others. Check out his Web site at www.e911.com for even more fascinating information about litigation visibility management. Lukaszewski is a regular columnist for PR News on a wide variety of crisis communication and management communication topics.