Should public relations experts ever be privileged persons?

• Author: Gertsberg, Deniza

INTRODUCTION

Over the past decade, the media fixation with pursuing crime stories has made it increasingly difficult for persons accused of a crime to enjoy a fair judicial process. (2) The media's concentration on trials to increase ratings and profits delivers what the voyeuristic public wants to see: raw human emotion discharged through greed, sex, and murder. (3) It is no longer true that any publicity is good publicity. (4) Witness the trials of O.J. Simpson and Martha Stewart. (5) Their celebrity status granted them the misfortune of having to face two trials--the legal trial and the trial by the court of public opinion. (6) Even defendants with no prior celebrity status often become infamous overnight when accused of a crime. (7) Media has "enormous power" to influence the course of legal proceedings. (8) The result for clients whose lawyers are not trained in public relations could be devastating. (9)

This phenomenon (10) broadens an attorney's role. (11) Not only is a lawyer obligated to pursue lawful strategies in the court of law, but a lawyer must also ensure that the client's right to a fair trial is not undermined by negative media campaigns that ignite public outrage, induces prosecutors to bring more severe charges, and possibly influence the jury pool. (12) Yet, lawyers are taught how to litigate, negotiate, and practice law according to precedent. They are not taught how to "spin." (13) Untrained and unskilled in addressing the media, many lawyers require "outside help" (14) from public relations firms when representing clients who endure highly publicized trials. A public relations consultant or firm can help attorneys understand the effects of publicity on the judicial proceeding. (15) The attorney can thus respond with an appropriate legal strategy that attempts to minimize the negative effects of publicity. (16)

Lawyers cannot be sure that confidential information and communications exchanged with a public relations firm will be protected by the attorney-client privilege. (17) This uncertainty injures clients because they are less likely to be frank with attorneys if attorney-client privilege applies only some of the time. (18) A lawyer who does not know the full facts cannot represent her client using her fullest efforts. (19)

Traditionally, disclosure of confidential information to a third party was viewed as a waiver of the attorney-client privilege. (20) There is an exception, however, for third parties who have a necessary role in assisting the lawyer as a consulting expert or an agent. (21) This Comment addresses the issue of whether, and under what circumstances, a lawyer's communications with a public relations expert, whose advice and assistance is only valuable to the extent that it is communicated fully and freely with the attorney, will be protected by privilege. This Comment focuses on the role of public relations firms in the criminal law context, where constitutional concerns often arise.

Part I of the Comment explores the boundaries of the attorney-client privilege and explores how the privilege developed through the years. (22) Part II examines the traditionally limited view of a lawyer's role and indicates how the advent of mass media has forced the defense lawyer to do more than litigate in the court of law. (23) Part Ill examines cases involving public relations firms and the attorney-client privilege. (24) The section explores such issues as whether a public relations firm may be considered a privileged person because it plays a significant enough role in assisting the attorney in representing her client. (25) Resolving these issues involves determining (1) what courts consider legitimate legal services, as opposed to business services, and (2) whether the public relations expert, as a third party, gives sufficiently important assistance to the lawyer in rendering legal services, as opposed to (a) not giving assistance that is really needed; (b) assisting the lawyer in non-legal services; or (c) giving assistance to the client and not the lawyer. (26) Part IV scrutinizes the cases discussed in Part III and suggests that the decision reached by the Stewart court is more rational and consistent with modern legal practice. (27) The Comment also argues that in cases where the public relations firm acts as a consulting expert to an attorney representing a highly publicized criminal defendant, the firm should be considered a privileged person for the purposes of the attorney-client privilege. (28) Finally, this Comment concludes that in order to maintain fairness in the judicial process for those accused of a crime, our system of adjudication must recognize that, in certain circumstances, the assistance of public relations firms will be required, and the attorney-client privilege must not be denied. (29)

1. BACKGROUND

   1. Attorney-Client Privilege

   Attorney-client privilege is the oldest rule of privilege known to common law. (30) It evolved from a tradition of the English courts where the privilege belonged to the lawyer and was grounded on humanistic considerations, enabling the attorney to "comply with his code of honor and professional ethics." (31) The code of a gentleman thus shielded attorneys from being compelled to testify in court what they had been told by their clients. (32) Today the privilege rests with the client, and it is the client who determines whether to assert or waive it. (33)

   Whether embodied in the common law, state law, or federal law (34) the broad outlines of the attorney-client privilege attaches: "(1) where legal advice of any kind is sought (2) from a professional legal advisor in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal advisor, (8) except the protection be waived." (35) "The privilege must also be invoked before any disclosure of the communication sought to be protected has occurred." (36)

   The Restatement (Third) of the Law Governing Lawyers defines the attorney-client privilege broader than did Judge Kearse in the above definitions It expands the privilege to "privileged persons," not just clients and their attorneys. (38) While it is the communication that is privileged, and not the underlying facts, (39) the privilege extends to writings as well. For example, the production of a privileged paper in possession of a person within privileged relations cannot be compelled. (40) Furthermore, there is a rebuttable presumption that all communications between an attorney and client are privileged, with the burden of showing that an attorney-client relationship exists, as well as the confidential character of communication, resting on the party objecting to the introduction of the evidence. (41)

   1. General Constraints on the Application of the Attorney-Client Privilege

      The attorney-client privilege is a limited doctrine (42) that only becomes "absolute" after the privilege attaches. (43) First, as already mentioned, the privilege only applies to communications not the underlying facts. (44) In addition, a conversation is not privileged automatically just because it is between a client and her attorney. (45) Second, most courts agree that when an attorney functions as a business or economic advisor, the attorney-client privilege does not attach. (46) Third, the presence of third parties not privileged to the communications that occurs between a lawyer and a client waives the attorney-client privilege. (47) Lastly, confidentiality is regarded as a fundamental aspect of the attorney-client privilege. (48)

   2. Attorney-Client Privilege and "Privileged Parties"

      The Restatement's broader definition more accurately captures the scope of the modern day attorney-client privilege when it defines it as communications made between "privileged persons," in confidence, for the purpose of obtaining or providing legal assistance for the client. (49) A "client" also includes individuals who had preliminary communications with regard to retention of counsel but eventually decided to hire a different attorney. (50) It is "universally accepted that agents of both of the attorney and the client, who were vital to the legal assistance sought, could be brought within the circle of confidentiality." (51) The privilege thus covers secretaries, paralegals, and law clerks. (52) It also extends to experts hired to assist with the investigation. (53) or provide scientific or technical assistance in preparation for trial. (54)

      Despite the misgivings of some courts, (55) the circle of privileged persons has widened. (56) The attorney-client privilege includes a client's outside consultants hired to perform business and later retained by the attorneys to assist in litigation because of their knowledge and experience. (57) It also covers consultants who are essential to lawyers in performing tasks that go beyond advising a client to the law. (58) This includes non-testifying expert witnesses, psychiatrists, (59) accident reconstruction experts, (60) consultants that gauge the state of public opinion for venue change purposes, and jury consultants. (61)

   3. Justification for the Attorney-Client Privilege

      The growing body of regulatory law which adds to the complexity and specificity of legal obligations often requires that persons untrained in the law seek professional legal assistance. (62) In order for attorneys to represent their clients competently they need to know all the information. (63) Attorney-client privilege encourages "full and frank communication" between attorneys and clients. (64) Clients will not fear that statements made in confidence to their attorneys will be subsequently (65) subject to disclosure by an adversary. (66) Such full disclosure by the client allows attorneys to render the best possible legal advice. (67) Only when a client has informed the lawyer of all the facts can a lawyer...