Or maybe not so much.
First reported on Law360.com March 16th, a California appellate court extended attorney client privilege to a public relations team. While some seemed surprised at this decision, we have used attorney client privilege with every law firm that contracted our services for more than 30 years. We believe, as do many attorneys, that the public relations strategy and tactics, as well as other counsel afforded the legal firm’s client via PR, extends to our agency.
The case is Behunin v. Superior Court Los Angeles County, case number B272225, Court of Appeal of the State of California, Second Appellate District.
They threw out this particular case saying, “There may be situations in which an attorney’s use of a public relations consultant to develop a litigation strategy or a plan for maneuvering a lawsuit into an optimal position for settlement would make communications between the attorney, the client and the consultant reasonably necessary for the accomplishment of the purpose for which the attorney was consulted…But this is not that case.” The three judges did address the idea that the attorney client privilege can extend to PR, however, by referring to some cases where privilege was allowed.
Kovel agreements, where communications between lawyers and accountants providing advice are privileged, have been honored by the courts. So should the counsel public relations professionals provide as communications expertise is not necessarily part of the law school curriculum. In many cases, without PR assistance, lawyers either stonewall the press or rely on “no comment” when the case has potential to become media fodder.
The issue becomes one of demonstrating why communications with a PR firm should remain out of discovery. To us, as PR professionals, that seems like a no-brainer. We use emails and other communications that reveal legal and PR strategies. While you are revealing the PR direction, you are also revealing the legal direction in such communications. I suppose you could argue that redacting the PR documents would eliminate the legal strategy from the eyes of the plaintiff or defendant’s legal firm. But that sounds pretty messy.