4 Legal Strategies For Public Relations Material To Remain Confidential and Privileged
In a recent court case, it was revealed that communications with the PR firm were not considered privileged – which means that the opposition was enabled to review confidential materials.
PR firms are often hired to protect clients as in the court of law filings are often public – which opens them up to the court of public opinion and the media, meaning a PR firm is needed.
When a PR firm is acting as an agent for a lawyer AND meets certain criteria, then privilege often stands, and materials are likely to remain confidential. Here are four top-line information to know for public relations firms to ensure that their materials remain confidential and privileged:
The PR firm needs to be retained by the lawyer or law firm rather than directly by the client. This engagement letter needs to include very specific language as to the nature of the work being done by the PR firm. It also needs to show the necessity of the PR work for impacting legal advice and strategy for the client. This language is imperative to the privilege – and should be followed. The “client” should be the lawyer.
Be aware at some point, you may need to prove the necessary factor of your work for these purposes. Keeping a log of the work you done and how it impacted the legal view, including dates and any correspondence or work created will be helpful. When creating a log, do not include confidential information. Make it a summary of the type of work and any possible options provided to attorneys without direct reference to the names of any party involved in your efforts. This log can be entered into court documents when showing why your work meets the privilege standards – and is likely to be turned over to the opposing side… yet the work likely will not be.
All invoices or contacts regarding payment need to be with the law firm and NEVER with the law firm’s client. IF your firm also represents the client for other PR services than the privileged work, bill that under a separate invoice as if it is a unique client.
No matter what type of correspondence or document you give the attorney or their client, label it at the very top of the document, letter, email, or otherwise – “Attorney-Client Privileged/Work Product Communications.” This makes it apparent to anyone searching the client files what can and cannot be provided because of privilege.
PR firms are often necessary in disputes and high-profile cases – play it smart and ensure that all materials remain confidential and privileged.