No Privilege Extended to Communications With PR Consultant, But Court Provides Roadmap to Possible Application

It is not uncommon in this day of social media influence for an attorney to seek out the assistance of a public relations consultant to play a role in connection with a high profile lawsuit. Such media experts can help assess and mitigate risks, alleviate the public’s concern, manage public perception, and create leverage for settlement. The question is whether communications between a public relations consultant, an attorney, and a client are protected from disclosure.

Courts have long acknowledged the importance of encouraging full and open communication between attorneys and their clients to promote the broader public policy of the effective administration of justice.  Thus, where a client seeks legal advice from and attorney, any communication relating to that advice is protected from disclosure by the attorney-client privilege. The privilege is often extended to the attorney’s third-party agents. But, this is not always the case.

In a case of first impression, the California Court of Appeal in Behunin v. Superior Court (2017) 9 Cal.App.5th 833 declined to extend the privilege to shield communications between a public relation consultant, the attorney, and the client. In that case, the third-party consultant was hired to create a website and disseminate damaging information about the opposing party, Charles Schwab and son, in order to generate bad publicity and encourage the Schwabs to settle the lawsuit. Instead, the Schwabs sued for defamation and sought the disclosure of all communications with the consultant. The trial court held that the communications were not privileged, and the Court of Appeal agreed. It held that the determination of whether communications among a client, his attorney, and a public relations consultant are protected by the attorney-client privilege will depend on whether the communications were confidential, and whether disclosing them to the consultant was reasonably necessary to accomplish the purpose for which the client consulted with the attorney – to provide legal advice to Behunin and represent him in the lawsuit.

Importantly, Behunin presented no evidence showing why his or his attorney’s communications with the consultant were reasonable necessary to develop a litigation strategy or to induce the Schwabs to settle.  There was nothing put before the Court to demonstrate the consultant’s involvement with the attorney in developing, discussing, or assisting in executing a legal strategy. To the contrary, Behunin and his attorney insisted that the attorney had little involvement with the consultant, thereby establishing that the attorney acted as a mere liaison in hiring the public relations firm. Although Behunin and his attorney testified that they engaged the consultant to “develop and deploy” strategy, they intended their communications to be confidential, and the goal of the agreement with the consultant was to develop and deploy strategy and tactics of Behunin’s complaint, the Court found these statements to be just conclusions. Behunin failed to present any evidentiary facts showing or explaining how the consultant was actively assisting the attorney in developing litigation strategy to protect the client’s interests or provide legal advice.

The Court, however, did provide a roadmap as how the privilege may be recognized in other circumstances when communicating with public relations consultants: “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 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.”  Behunin v. Superior Court, supra, 9 Call.App.5th at pp. 849-850. The key is that the parties must be able to introduce evidence establishing that the communications were treated as confidential, and that they were reasonable necessary to the attorney’s legal representation of the client, and to the accomplishment of the overall litigation goals sought.

Attorneys who wish to employ the services of a media expert in connection with litigation can maximize their ability to argue that the communications with the consultant are privileged by following a few simple strategies:

  1. The attorney should engage the consultant directly;
  2. The engagement letter should make clear that the reason for the engagement is different than the reason for hiring a media firm for everyday public relations work; i.e., the purpose must be to assist the attorney in representing and advising the client in the lawsuit, including to help strategize and implement a plan to assess and mitigate risks, alleviate any public concern regarding the litigation, manage public perception, and create an optimal environment to leverage the early resolution of the lawsuit;
  3. The media firm should be different that the media firm normally used by the client;
  4. The attorney, the client, and the media firm should prepare and follow a strict protocol to ensure the confidentiality of the communications, including:
  • Having the media consultant sign an agreement that outlines the confidentiality obligations;
  • Ensuring that the attorney is involved in the drafting of all documents and communications with the consultant;
  • Marking all communications “Privileged and Confidential – Attorney-Client Privilege;”
  • Advising all recipients of the communications to limit dissemination;
  • Including an explanation on every communication of how the document pertains to the provision of legal advice; and
  • Having the media firm submits its bills directly to the attorney.

Remember, even if these strategies are deployed, there is still precedent for the Court to find that the privilege does not apply to communications with the media firm. Therefore, it is important to exercise caution when deciding what information to share with the consultant, and how to best transmit the communication.