Maintaining Privilege: Litigation Communications


Establishing privilege between a legal team and a litigation communications team is only the first step. Before you can start to work, the following four best practices must be put into place:

1.    Establish clear communications channels for exclusive use by the legal and communications teams and exclusively for the case/client in question.

2.    Identify all written communications with an “Attorney-Client work product” stamp.

3.    Keep it clean:  Only the attorney and the communications expert should meet, talk, email, converse. Neither the communications expert nor any members of the litigation communications team should ever directly engage with the client.

4.    Prevent information leaks: establish a process (examples: automatic expiration dates for e-files, shredding practices for paper documents) for secure disposal and destruction of all written communications.

Are you an attorney who would like to learn 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.

Establishing Privilege: Litigation Communication

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.

Hiring a Media Expert for Litigation Communications

“[T]he ability of lawyers to perform some of their most fundamental client functions…would be undermined seriously if lawyers were not able to engage in frank discussions of facts and strategies with the lawyers’ public relations consultants.” — Judge Lewis Kaplan of the U.S. District Court for the Southern District of New York regarding grand jury.

Because there are strategic aims and sensitive rules around disclosure during court proceedings, it takes more than a general knowledge of public relations strategy to manage litigation communications. Effective litigation communications requires a professional who understands the legal process, knows how to read filings and has case-specific/litigation experience. 

The ideal litigation communication media expert believes in the power of relationships: he/she will become a part of the legal team, working in lockstep with the lawyers, and will provide the team with access to media and journalists who will be covering the case.    

When hiring a media expert to handle litigation communications, ask about data forensics as it is essential they are up-to-date on the latest developments. The ideal partner will know how listening tools work, engage in active monitoring and analysis, understand how both reporting and rumor are impacting a case, and proactively recommend public appearances and information release.

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.  To learn more about our litigation communications practice or book a confidential consultation to learn how we can help, feel free to email carrie@anachel.com

Helping Litigators Win in the Court of Public Opinion

“A defense attorney may pursue lawful strategies to obtain dismissal of an indictment or reduction of charges, including an attempt to demonstrate in the court of public opinion that the client does not deserve to be tried.”

Supreme Court Justice Anthony Kennedy re Gentile v. State Bar of Nevada

Is it inappropriate to engage a communications professional to influence the outcome of the court case by encouraging early or favorable settlement or by pressuring the prosecution into bringing lesser or no charges?  Absolutely not!  In fact, it would be unprofessional not to: every case or dispute is tried in front of a judge within the legal system AND in the court of public opinion on social media and influencer circles.  

All too often, perceptions become reality.  A case could be settled in favor of a defendant but, due to a poor communications strategy before or during a trial, the defendant’s reputation could suffer permanent damage, resulting in financial and opportunity loss.

The litigation communications experts at ANACHEL Communications specialize in high-profile reputation management.  We carefully craft media relations strategies for our clients so that when litigation is resolved, careers and livelihoods continue to thrive.

If you’re an attorney who would like to hear more about our approach to litigation communications or book a confidential consultation to learn how we can help your practice, feel free to email info@anachel.com. 

Litigation Communications v. Strategic Communications

Litigation Communications is a specialty within strategic communications. Litigation communication strategies are laser-focused plans created in lockstep with legal strategies prior to, and throughout high-stakes legal disputes. They are designed to establish and protect proper narratives and defend an individual, company, or organization facing a legal action.

As public exposure of court cases has increased, plaintiffs and prosecutors utilize the media to get their side of the story out and to sway constituents’ opinions. It has created a massive need for experienced litigation communications for the following reasons: 

  • there is a greater focus on the legal implications of any communications,
  • there are strategic aims and sensitive rules around disclosure during court proceedings, and
  • digital publishing and social media platforms have hastened the proliferation and permanence of information and opinion, both positive and negative.
  • a corporation or individual may win the court of law but lose in the court of public opinion causes irreparable financial and brand damage.

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.  To learn more about our and book a confidential consultation to learn how we can help, feel free to email info@anachel.com

When the boss is accused of sexual harassment companies must be prepared to take quick action

Any smart company already has a crisis communications plan in place. Corporate crisis plans, however, tend to rely on how to best manage external threats to the company and potential operations flaws that put the company in legal jeopardy. Few companies have serious plans on how to manage potentially destructive behavior by its executives and board members.  That must change. 

Moving forward individuals and companies should assume that any allegation of sexual misconduct will become public. The media are dedicating resources to coverage of  allegations against high profile business leaders and the public is consuming the content and taking action against companies and its leaders guilty of wrongdoing. 

Companies that are slow to take action against executive wrongdoing will suffer damage to their reputation, loss of revenue, and potentially complete implosion of operations. As such, now is the time for companies to establish better protocols for how to identify and take action if and when serious allegations are raised — whether they occurred in the workplace or not.

There has already been a lot written about steps to be taken from a Human Resources perspective including a recent article published by the Society for Human Resource Management titled “Workplace Sexual Harassment: Me Too or Not Us?”  The article, written by Christina M. Reger, Esq. and Robyn Forman Pollack, Esq. provide wise guidance to employers: “Ignoring claims, whispers, or “open secrets” about bullying, sexual harassment and other predatory conduct will (not may) have severe ramifications for any company. In addition to legal and financial consequences, dismissing or even discounting employee complaints will have a domino effect inside an organization: 

  1. “It sends a message of unacceptable behavior which permeates the organization’s culture. 
  2. “It rewards the wrong individual and legitimizes the conduct, while simultaneously further stigmatizing the victim.
  3. “It can have a disastrous effect on the future sustainability of the company once exposed.”

So, what happens when a chief executive accused of sexual harassment becomes public?  How should companies communicate about it and to whom? The remainder of this article focuses on how companies should proceed from a communications perspective when faced with sexual harassment allegations that become public.

Scenario

Let’s consider a scenario where a company learns of a sexual harassment suit against its chief executive from an online news report. The report claims the CEO is being sued for making unwanted sexual advances to an employee in exchange for a promotion. Social media is lighting up about the allegations, employees are talking, calls are coming in from the media, board members are asking questions and customers are judging. 

Immediate steps

Once a threat is lodged against an executive or the company, the crisis protocol should be launched. It will be important to be in agreement for steps that need to be taken in the first hour and within the first 24 hours.  These decisions will largely be driven by several factors including: 

  • What are the facts?
  • Is the allegation credible?
  • Who needs to be informed of the allegation?
  • Is the story being accurately reported?
  • What are the next steps?

Initial Action

Companies have options of which steps to take depending on the facts, which include dismissal or suspension of the executive, or full on defense of the executive. The given action will depend on what the company leaders learn following an initial inquiry and investigation into the matter (which obviously must include an interview of the accused).

For the purposes of this article let’s assume the executive claims no wrongdoing and the facts are circumstantial at best.  

Designated spokesperson

As part of the crisis protocol there should be a designated media spokesperson who will serve as the face of the company during a crisis. Most of the time this should be the VP Communications, which can ensure the company is responsive to the claims and positively represent the company.  For internal communications it makes sense to follow normal company policy as long as the message is consistent. For example, if HR normally communicates with employees then it should continue to do so in unison with the VP communications. 

Company statement

Meanwhile, rumors are spreading like wildfire on social media; reporters and others are waiting for answers.  Something has to be done and quick to manage the message. A prepared company will have a “standby statement” on the ready, update it and distribute upon request and as needed on social media.  

It’s important to say that “no comment” is a terrible response.  It sends a message that the company is on the defense and the executive is most likely guilty.  Second, it surrenders any opportunity to shape the narrative. So, take the opportunity to make a well constructed and thoughtful statement. 

The initial statement should do three things.  First, it should acknowledge the allegation(s) and that the company is actively engaged in getting the facts. Further, the company should use language that recognizes the seriousness of sexual harassment and repeat company policy that it has a zero tolerance for any such conduct regardless of title or position in the company. The third element of the initial statement should be to let your audiences know that updates will be provided as necessary.  In no instance at this stage of the process should a spokesperson speculate or discuss any of the allegations. 

This may seem pretty bland to many (especially those audiences who want a head on a platter), but it allows the company to be responsive and engage in the dialogue.  It also buys the company some time to better understand the facts and what the company is truly facing.

Social media channels must be monitored regularly for false information and the gauge reaction to news and statements.  Obviously, the same message shared with traditional media should be shared on the social media platform. 

As said above, consistent messaging should be sent to employees and other key stakeholders from normal channels of communications.  Employees should be reminded to be careful about what, if anything, they say about the matter, and certainly not to speculate. 

Finally, any and all communications must be coordinated with the legal team and approved by the crisis team. 

After the first 24 hours

Following the initial company statement there should not be any back and forth with media and others.  The company statement should stand on its own as long as nothing about the matter materially changes. Media and social media should be monitored for information and misinformation. 

Reputation Management

Skipping ahead to the final action, the company will want to be prepared to communicate about moving forward.  Whether the executive is exonerated or found guilty, there will be reputation work to do.

If the executive is dismissed from the company, it will be important to reassure key audiences that the company takes the issue seriously and has taken steps to try to prevent it happening in the future.  The company should develop specific steps with regard to how it will do a better job to create a better workplace and it should be communicated broadly to key stakeholders.

If the executive is exonerated, it is still worth restating the importance of safe work environments and the corporate policy on sexual harassment and how issues can be reported  

The tolerance for sexual harassment has finally reached a tipping point.  Victims are being heard and the media is exposing wrongdoing on the part of powerful people.  These are ultimately positive steps for businesses and the people who work in them. As the allegations are taken seriously and reported by the media companies must be prepared to act quick and take positive action. 

Thank you to Anachel partner Ramsey Poston for this insightful blog.

Reaching out to info@anachel.com if you need a concierge consult.

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