Maintaining Privileges

In my last post, "Martha Talks," I discussed how Martha Stewart was the first to use a personal website as part of her litigations communications strategy. Stewart's use of public relations to help maintain her image and brand as the ImClone scandal unfolded also yielded one of the first written opinions addressing the issue of whether communications with PR professionals are covered by the attorney-client or work-product privileges, In re Grand Jury Subpoenas, 265 F.Supp.2d 321 (S.D.N.Y. 2003).

Before charges were filed against Ms. Stewart, her lawyers hired The Brunswick Group ("Brunswick"), a New York public relations firm, "out of concern" that:

"unbalanced and often inaccurate press reports about [Stewart] created a clear risk that the prosecutors and regulator conducting the various investigations would feel public pressure to bring some kind of charges."

Not surprisingly, the government subpoenaed witnesses and documents from Brunswick regarding its representation of Ms. Stewart. Brunswick employees declined to appear or provide the subpoenaed documents on the ground that the information sought by the grand jury had been generated in the course of Brunswick's engagement by Ms. Stewart's lawyers, as part of their defense of Ms. Stewart, and were therefore protected by the attorney-client privilege and constituted attorney work product.

The court declined to completely enforce the subpoenas, concluding that communications between Ms. Stewart and Brunswick, both in and outside the presence of her attorneys, were protected by the attorney-client privilege insofar as such communications were directed at giving or obtaining legal advice. The court observed that during a high profile grand jury investigation, Ms. Stewart and her defense team were faced with efforts by the media, prosecutors, and law enforcement personnel to "color public opinion." It noted its awareness that such activities are often engaged in, "certainly to the detriment of the subject's general reputation but also, in the most extreme cases, to the detriment of his or her ability to obtain a fair trial." The court found that efforts to counteract this reality must take into account potential legal ramifications, and that this was a situation in which the lawyers needed outside assistance, since, as the court observed, "dealing with the media in a high profile case probably is not a matter for amateurs." Thus, the ability of lawyers to perform

"some of their most fundamental client functions - such as (a) advising the client of the legal risks of speaking publicly and of the likely legal impact of possible alternative expressions, (b) seeking to avoid or narrow charges brought against the client, and (c) zealously seeking acquital or vindication - would be undermined seriously if lawyers were not able to engage in frank discussions of facts and strategies with the lawyers' public relations consultants."

According to the court,

"there is no practical way for such discussions to occur with the public relations consultants if the lawyers were not able to inform the consultants of at least some non-public facts, as well as the lawyers' defense tactics, free of the fear the consultants could be forced to disclose those discussions."

Thus the court held that it would find the following communications to be protected by the attorney-client privilege:

1) Confidential communications

2) Between lawyers, the client, and public relations consultants

3) Hired by the lawyers to assist them in dealing with the media in cases such as this one

4) That are made for the purpose of giving or receiving advice

5) Directed at handling the client's legal problems

Applying this test, the court protected all but two conversations between Ms. Stewart and Brunswick - one where Ms. Stewart asked Brunswick for its opinion of a day's particularly heavy media coverage and the second when the discussion concerned a problem with a wire service story.

Despite what appears to be clear guidance in the court's decision in the Martha Stewart matter, whether the attorney-client privilege applies to communications between lawyers, clients and litigation communications consultants can be so fact specific that lawyers should not assume that they can indiscriminately hire consultants and assume that all communications will fall within the privilege. Below are links to two excellent articles that provide further analysis on the steps necessary to protect communications made to litigation communications consultants.

1) Attorneys and public relations consultants: privileged or perilous communications?

2) Preserving Privilege