Advantages of the Attorney-Client Privilege
By Lanny J. Davis
The first rule of Crisis Management is to get all the facts – and then be ready to correct media misinformation that hurts a company’s reputation and could possible adversely affect the legal outcomes inside a courtroom or before a regulatory agency.
I preferred to engage in debate with my fellow lawyers on how to get facts out proactively without significant legal risks. When I worked at the White House as a Special Counsel to President Clinton, the then White House Press Secretary, Michael McCurry, would repeatedly warn me when I was on my way to a meeting of White House lawyers: “Davis, don’t leave the room full of all these lawyers without your blood being left on the floor!” “That’s easy for you to say, McCurry,” I would ritualistically respond. “That’s my blood you are talking about.”
What McCurry meant was that as a press person, he couldn’t be in the room with the lawyers and I had to be his agent to make the political and media arguments for our proactive strategy.
What blocked McCurry from being in the room was that he wasn’t an attorney. He couldn’t challenge lawyers when they objected to disclosures to the media for legal reasons, such as “executive privilege.” That would be a showstopper, McCurry would point out. End of discussion. Whereas I, as an attorney, could ask my fellow lawyers: “Executive privilege? What are you talking about? That’s BS. There is no executive privilege for a political memo between staff.” Whether my position was accepted or not, at least my fellow lawyers would have to engage and debate. Also, any non-attorney in the room can risk the “waiver” of “attorney-client privilege”—the rule that communications between a client and an attorney rendering legal advice are immune from subpoenas or compelled testimony. With a non-attorney PR person in the room, most lawyers worry there could be a complete “subject matter” waiver—meaning anyone in the room, including attorneys and clients, could be forced to testify as to the legal advice and produce all documents underlying the advice to the adversary.
It is a mistake to assume that a crisis manager or public relations consultant who went to law school and has a law degree will be given the protection of the privilege. In fact the courts, in a long line of cases going back decades but especially in recent years when public relations or political attorneys with law degrees have sought to be protected by attorney-client privilege, the courts have held the bar is high to be granted that privilege of protection from subpoena:
To succeed in obtaining the protection of the privilege, the attorney/crisis manager must actually be providing legal advice, not “mere” public relations advice, as one leading case put it. And the attorney must, therefore, prove that his engagement agreement with the client (and his/her actual law practice that is bona fide, not a sham) is for the purpose of providing legal advice. If media advice can be demonstrated to be part of that legal advice – i.e., advice to correct mis-reporting or distortions that could prejudice the jury pool or provide some other nexus to legal advice – then the privilege will be upheld. If not, then a court will dismiss the legal degree of the crisis manager as irrelevant and likely to deny attorney-client privilege.
So Clinton Press Secretary Mike McCurry had the wisdom to see—way before I did—that an attorney who understood media and politics had a great crisis management advantage. He or she could be in the room with the attorneys, argue with them, test legal judgments through a media-political filter, and at least have a fighting chance to convince the instinctively opaque attorneys to go transparent.
The key new element in what I call “legal” crisis management is taking advantage of the “attorney-client privilege” to be able to get access to all the facts, good and bad.
The “privilege,” as it is called by attorneys, derives from centuries of tradition based on a confidentiality principle that has long been accepted—not just in the law, but in religion and medicine as well.
For example, when a priest hears confession, he is bound to maintain the secrecy of the confessor, and the confessor is able to rely on that and, thus, is willing to be completely honest. The same principle applies to the patient, who must be completely forthright with a physician or psychiatrist if he or she is going to get effective medical help. An attorney must also be able to assure a client in trouble that the client must be 100 percent truthful to get the best legal advice, and if he or she is, the facts disclosed cannot be compelled to be disclosed (with rare exceptions), even if the attorney is served with a subpoena.
Over the years, I learned that the traditional advice of a lawyer to avoid public comment during a legal crisis had become outdated, especially with the impact of the Internet at the turn of the twenty-first century.
It was no longer viable for a lawyer to tell a client, “We’ll win it in the courtroom—we won’t litigate this in the media.” There were too many ways for the judge and the jury to be influenced by public opinion, consciously or unconsciously; too many ways for prosecutors and regulators to be persuaded by adverse media coverage to launch an investigation or to bring a case, as broadcast news once a day became 24/7 cable, and then within just a few years, the Internet led to websites and then some blogs and then the blogosphere and then Google, Twitter, YouTube, WiFi, and social networks.
Everything that follows in effective crisis management – developing a simple message, rapid response to correct misinformation that could hurt a client’s reputation, share values, or outcome in the courtroom – and, in the long-term, repairing the damage begins with the need to get the facts, all the facts, good and bad – not just those that attorneys are ready to tell a non-attorney crisis manager of public relations consultant. And that means getting access to all the facts, first with the protection of attorney-client privilege.