Are Communications Involving Your PR Firm Covered by Privilege?
Page 2 specializes in serving law firms and law firms only, so you can be sure that we take client confidentiality and attorney-client privilege seriously. Because we closely follow all state and federal rulings regarding privilege as it relates public relations and trial publicity, we were intrigued by a May 6 ruling in the U.S. District Court for the Southern District of New York.
Women’s apparel brand Universal Standard has accused Target of infringing its trademarks by selling a similarly titled and branded clothing line. At issue here was whether emails shared among Universal Standard, its attorneys, and its public relations firm are protected by attorney-client privilege. The court ruled that they are not protected, and therefore counsel for Target may question witnesses about them.
It is difficult for a company to maintain privilege after sharing information with third parties. There are only three cases in which privilege would still apply:
• The third party was necessary to the communications because the company relied on his/her specialized knowledge to facilitate understanding, such as in the case of a translator.
• The third party was an agent of the company, effectively an employee, who had decision-making power, a physical presence in the office, or routinely sought legal advice from the company’s counsel.
• The third party was hired by counsel—not the company they represent—to assist in communications aspects of the legal strategy.
And even within these exceptions there is still some ambiguity. The court also ruled that the emails were not protected under the work product doctrine.
In Universal Standard’s case, they might have protected privilege if they’d spoken directly with their attorneys instead of using their PR firm as an intermediary, and of course if they’d picked up the phone instead of creating a written record with the emails. If they needed PR help to prepare for litigation, their law firm should have taken on the task of hiring help in order to safely share information with that third party. It’s unclear whether Universal Standard’s counsel could have made a stronger case that the emails were work product, but the assertion did not seem to hold much weight.
What does all this mean for law firms and PR professionals?
Don’t sleep on this issue. These questions are complex and continue to evolve, so think carefully on a case-by-case basis about how to best share information with third parties. As communications professionals we want to be in the loop, but never in ways that compromise your case!
Law firms, not clients, should engage PR professionals for legal matters. As demonstrated by the Universal Standard case, a PR firm hired to implement legal strategy is an exception to the rule on third parties. Consider taking that responsibility off your client’s slate so that you can manage the engagement more carefully.
Be proactive. Collaborate with your PR firm at the outset to decide how you’ll handle sensitive material. Having a plan in place might save you from the fallout of impulsive decisions.