by Sherry Bragg
Social media has become part of our daily lives. Information is routinely disseminated in the public sphere via Facebook, Twitter, Instagram and other social media outlets. It is therefore no surprise that we often see high profile litigation play out in the media as much as it does in the courtroom. For this reason, many attorneys and clients seek the assistance of a public relations or media consultant to advise them on issues such as the assessment and mitigation of risks, the creation and dissemination of beneficial communication points and narrative themes, the management of public perception, and the facilitation of leverage for purposes of settlement. The question raised by the engagement of outside media consultants is whether communications between the consultant, an attorney, and a client are protected from disclosure. This issue tests the limits of the attorney-client privilege, which generally seeks to encourage full and open communication between attorneys and their clients to promote the broader public policy of the effective administration of justice.
We have seen traditionally that where a client seeks legal advice from an attorney, any communication relating to that advice is protected from disclosure by the attorney-client privilege. In fact, the privilege has often been extended to the attorney’s third-party agents. But, this is not always the case. In a recent 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 Court held that the communications were not privileged. It concluded 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.
The Behunin holding was recently cited as authority for the proposition that “[u]nder California law, the scope of attorney-client privilege must be construed narrowly.” (Anderson v. Seaworld Parks & Entm’t, Inc. (January 8, 2019) 2019 WL 131841 at *4.) Taking an even more restrictive view of the privilege than Behunin, the court in Anderson held that it is not enough that the public relations consultant weighs in on legal strategy. According to Anderson, in order to fall within the privilege, the media consultant “must facilitate communication between the attorney and the client.” (Id. at *9.)
Under the test articulated by Anderson, there is a serious question as to whether a public relations or media consultant can ever be considered a necessary part of the litigation team such that communications with them will be shielded from disclosure pursuant to the attorney-client privilege. Practitioners beware. If you engage a public relations or media consultant to assist with your case, you should assume that your communications with the consultant will not be confidential and conduct yourself accordingly.