In the wake of recent well-publicized public relations nightmares, your friends at PL Matters considered the impact of PR firms on professionals. Public relations are a critical aspect of maintaining status in the public eye, communicating a message to consumers, and helping to promote a positive image. As a result, professionals often rely on outside PR professionals, both for their own business needs and the needs of their clients. But have you considered the implications of disclosing sensitive information to an outside PR firm?
In order to develop an effective public relations strategy, firms or clients may be required to disclose information that would otherwise be considered privilege. Ordinarily, such third party disclosures would result in a waiver of any claim to confidentiality. However, a recent California appellate court decision suggests that the attorney-client privilege may extend to professional PR firms under certain circumstances.
The court’s decision related to an underlying lawsuit filed in 2014 when a plaintiff alleged that the owner of an investment firm and his son excluded him from an ownership interest in a real estate venture. After filing suit, the plaintiff’s lawyer hired a PR firm to initiate a social media campaign targeting the investment firm. The PR firm also built a website that was critical of the investment firm, supposedly as part of the plaintiff’s litigation strategy.
The plaintiff’s lawsuit was dismissed in 2015, and the defendants filed their own defamation suit relating to the plaintiff’s use of the PR firm and website. The plaintiff sought a protective order for all communications with the PR firm, arguing that it was hired to execute litigation tactics, and was therefore protected from discovery under the attorney-client privilege and work product doctrine. This question was taken on appeal. Although the appellate court determined that the communications were not protected because they were not necessary to the underlying lawsuit, the court nevertheless noted that there may be situations in which an attorney’s use of a PR firm to develop a litigation strategy would be privileged.
Litigants and professionals should be cautious about assuming that communications with a PR firm would be privileged in all cases. However, where a PR firm’s advice and expertise are essential to a litigation strategy, a strong argument may be made that such communications are privileged and thus protected from discovery.