Strategic communications efforts such as media outreach, publication of OpEds and owned media/social media activity is legal so long as these efforts serve the overarching legal strategy.  However, privilege in litigations communications is not a given and must be established. In Calvin Klein Trademark Trust v. Wachner, privilege was not granted in part because the law firm’s client had a preexisting relationship with the strategic communications firm where it also performed public relations services not related to litigation.

So how is privilege defined, and why is having it so essential to litigation communications strategies? In the law of evidence, a privilege is a rule of evidence that allows the holder of the privilege to refuse to disclose information or provide evidence about a certain subject or to bar such evidence from being disclosed or used in a judicial or other proceeding (Wikipedia).

Privilege between the legal team and the litigation communications team is vital and can be established by employing these three best practices:

1.    When initiating the engagement, the contract should be between the law firm and the agency, like us. Not the client.

2.    The contract should clearly state that the purpose of the work is to provide “expert” strategic communications advice for litigation or in anticipation of litigation.

3.    The scope of the work should use specific wording that connects the communications efforts to the legal strategy.

Would you like to know more about setting and maintaining the privilege between your communications experts and the legal team? Reach out to carrie@anachel.com.

ANACHEL Communications specializes in high-profile litigation, crisis and strategic communications.  Our media training program and bespoke reputation management practitioners help our clients navigate the narratives when it matters most.