Can You Protect the Privilege for Consultants, PR Experts and Everyone Else?
As lawyers, we love to think that we can solve every problem. But we can’t. For many problems, the solution is not a legal strategy, or at least it’s not only a legal strategy.
To rip an example from the headlines, you are in-house counsel when the CEO and your company are sued for sexual harassment by a media-savvy plaintiff’s lawyer. It’s a perfect storm involving salacious details about a big-time executive.
As in-house counsel, you jump into the legal response — hiring outside counsel and formulating an answer to the complaint. But this is way more than a legal problem. You know you need an investigative firm to probe the truthfulness of the accusations and a public relations firm to handle the media campaign.
You are scrambling around, coordinating the legal team and HR and these outside firms, when the general counsel asks you, “hey, is that work privileged?”
Maybe. You realize that you better do everything you can to make sure it is.
The Kovel Standard and How to Meet It
First, the law. You have two bulwarks here — the attorney-client privilege and the work product doctrine. You need to make good use of both of them.
Usually, the presence of a third party waives the attorney-client privilege. Having a PR firm or investigator in the room or copied on a memo might mean that the communication is open to discovery later. That would be a real problem for your company because it wants to keep its crisis strategy, which is usually its legal strategy as well, private.
All is not lost. Most jurisdictions follow the lead of the Second Circuit in United States v. Kovel, 296 F.2d 918 (2d Cir. 1961). In Kovel, the court said that communications with non-attorney consultants are privileged if the communication is “made in confidence for the purpose of obtaining legal advice from the lawyer.” Kovel held that the privilege extended to such “outside help” to promote “effective consultation between the client and the lawyer.”
An outside consultant acting as a “translator” who helps the lawyer understand non-legal concepts generally falls under Kovel. But the case law is not entirely clear. Some courts have refused to extend the privilege to PR firms; others have extended it to jury consultants.
Since there’s a lawsuit here, the work product doctrine is also in play. Its goal is to create a “zone of privacy in which a lawyer can prepare and develop legal theories and strategies ‘with an eye toward litigation,’ free from unnecessary intrusion by his adversaries.” In re Grand Jury Subpoenas, 318 F.3d 379, 383–384 (2d Cir. 2003).
How to Make It Work in Practice
You need to protect the confidentiality of your company’s relationship with these outside consultants at key stages of the engagement to maximize the probability that you will be able to keep the communications private. A few key points:
Let the lawyer — preferably outside counsel — retain the consultant and make the engagement limited to the matter at hand.
Keep the consultant’s work focused on tasks to assist the lawyers. Let’s face it: hiring an ad agency to create a new commercial showing that your company is a wonderful place to work is likely not protected. But using a PR firm to help craft press releases and internal communications about the incident, which will likely result in litigation, is more likely protected.
Learn how the consultant will keep your information and communications confidential. These days, hacking is a major risk. Find out how the consultant stores information and handles communications. Encryption is your friend.
Make it clear in the engagement letter that work is being done at the direction of a lawyer and to help the lawyer. This is your one opportunity to document the relationship in writing. Take advantage of it. Invoices should go to the outside lawyer first, not the consultant. Define exactly what happens if the consultant is contacted by the media or subpoenaed for information.
Follow through on this strategy during the engagement. It’s tempting to let the business folks talk to the consultant. #resist Let the outside lawyer take the lead and instruct your outside lawyer to keep consultant focused on assisting the lawyer.
None of these steps guarantee that your communications with PR firms or investigators are protected, but they will give you the tools to fight back if someone says they aren’t. In a time of crisis, the last thing you want is a crafty plaintiff’s lawyer getting ahold of the email where you directed the investigator to “find the dirt on Jane” or told the PR firm to “make us look better than our slimeball CEO.”