Litigation Communications and Privilege
| Author | James F. Haggerty |
| Profession | Lawyer |
| Pages | 249-273 |
249
CHAPTER TEN
Litigation
Communications
and Privilege
A repeated and regular source of confusion when managing the com-
munications aspects of high-prole litigation is that of attorney-client
privilege: what parties and their lawyers can reveal to their outside pub-
lic relations representative, and under what circumstances, without fear
that such information will fall into the hands of the other side. In both
my attorney and my communications consultant roles, this is among
the most common questions I face as my clients and I look to present our
case in the court of public opinion.
In this chapter, we look at the critical issue of privilege for public rela-
tions activities—a concept that poses difculty for lawyers and nonlaw-
yers alike. We learn key differences between attorney-client privilege and
the work-product doctrine. And we look at practical steps both litiga-
tors and their PR counsel can take to ensure that their communications-
related deliberations are protected from discovery by the other side.
“So . . . am I speaking to you in your capacity as an attorney?”
“No. I’m a consultant working with the defendant on commu-
nications issues related to the case.”
“Well, you must understand, attorney-client privilege prevents
me from discussing the case with you.”
“I take it you mean that if you discuss privileged matters with
me, the privilege might be broken and the other side could gain
access to the content of our conversation through discovery.”
“Yes, that’s exactly what I mean.”
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In the Court of Public Opinion
250
“Okay. Then let’s just talk about the nonprivileged parts.”
“I’m afraid it’s impossible to separate the two.”
“Well, can you talk about the scheduling, so we know what’s
coming next in the case?”
“Yes.”
“Can you talk about the documents that are available to the
public on the PACER electronic ling system?”
“Yes.”
“Then I guess it’s not impossible, now is it?”
It should be said that this exchange did not particularly endear
me to the lawyer in question. But it should also be said that she
was hiding behind attorney-client privilege to avoid discussing
the case, making it difcult to formulate a public response to what
was going to happen. Or maybe she was just so used to invoking
the privilege, she’d lost track of what it really means. In either
case, it took a fair amount of pushing on my part to reach agree-
ment on what we could actually speak about as I formulated a
strategy for public response.
Attorney-client privilege, and its close relative, the attorney
work-product doctrine, are two sacred elements of legal practice.
They are also radically misunderstood by lawyers and nonlaw-
yers alike. This is particularly true in the context of litigation com-
munications matters, where outside public relations advisors are
tasked with managing the public relations aspects of litigation or
other legal controversies. In this chapter, we take a closer look at
the elements of attorney-client privilege and the work-product
doctrine and how the doctrine might apply in the litigation com-
munications context.
Somewhat dry stuff, to be sure, but I’ll try to keep it interest-
ing. It does need to be examined closely because it comes up in
virtually every client engagement I undertake. And, again, I’m
convinced that part of the problem is that even litigators have
less-than-complete knowledge of the topic and how it applies
when using communications consultants during, or in anticipa-
tion of, litigation.
The Mysteries of Privilege
Attorney-client privilege applies . . . except when it doesn’t.
Work-product doctrine excludes from discovery materials
(including e-mails, memos, notes, and other documents) created
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