Public relations and attorney-client privilege

Public relations firms are frequently used in entertainment litigation for many reasons, including to develop a litigation strategy or plan for maneuvering a lawsuit into an optimal position for settlement, or to win in the court of public opinion. However, certain communications with PR representatives may not privileged.

The 2nd District Court of Appeal recently held that communications between a PR firm hired by a lawyer for a client to create a website were not protected by the attorney-client privilege, if the PR firm’s role was not essential to the lawyer’s representation of the client. Behunin v. Superior Court (Schwab), 9 Cal. App. 5th 833 (Ct. App. 2017) review denied (June 14, 2017).

Nicholas Behunin filed suit against Charles Schwab and his son Michael Schwab over an unsuccessful real estate investment deal. Behunin’s attorney, Leonard Steiner, hired a public relations consultant, Levick Strategic Communications, to create a website (www.chuck-you.com) containing information linking the Schwabs and their real estate investments in Indonesia to the family of former Indonesian dictator Suharto. The Schwabs sued Behunin for libel, slander, and invasion of privacy. Behunin responded by filing an anti-SLAPP Motion (Cal. Civ. Proc. Code Section 425.16).

In response to the anti-SLAPP Motion, the Schwabs filed motions for limited discovery, seeking to take discovery on the malice element of their defamation causes of action in connection with the statements on the website. The Schwabs sought to depose and obtain documents from Steiner, Behunin, and Levick regarding communications among the three of them relating to the website. Behunin and Steiner objected to the discovery on the grounds that the requests exceeded the scope of the order authorizing discovery, and sought documents protected from disclosure by the attorney-client privilege and work-product doctrine. A referee and the trial court both denied these objections, prompting Behunin’s attempt for a writ of mandate.

On appeal, the issue was whether the communications among Behunin, Steiner and Levick were confidential, attorney-client privileged communications and whether disclosure to Levick, the PR company, waived the privilege. The Court of Appeal concluded that although in some circumstances the attorney-client privilege may extend to communications with a public relations consultant, Behunin failed to prove that the communications to Levick were reasonably necessary for Steiner’s representation of Behunin in his lawsuit against the Schwabs. Accordingly, the court denied Behunin’s petition for a writ of mandate.

Thus, any written or oral communications with a public relations professional should be considered at least potentially discoverable and be worded with discretion. Counsel must always consider how a jury would react if they were to see communications with a third-party PR consultant.

In situations involving PR media campaigns, the burden will be on the retaining attorney to demonstrate a connection between the PR consultant’s active role in implementing the PR campaign and the nature and purpose of the attorney’s retention. The engagement agreement with a PR consultant should make this very clear, as should all subsequent communications between the consultant and the attorney. The key is to make clear that all communications between the attorney and PR consultant are “reasonably necessary” to the attorney’s representation of the client.

The Behunin court was careful to say that it was not finding a blanket prohibition against the attorney-client privilege with a PR consultant, and discussed exceptions to the general rule. But the court emphasized that as the holders of the privilege, the attorney and client are going to have to do more than just say PR consultants were hired and therefore the communications with them are privileged.

“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 an 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,” the opinion said. “But this is not that case.”

“A certain kind of case may actually involve litigation over something a PR firm would be an expert on, and a lawyer could hire them for advice to help his client” and potentially be privileged, the court said, “[b]ut when they go out and talk about PR strategy generally, well, it’s hard to imagine many circumstances in which a PR firm is going to get really close to helping translate a legal issue.”

The court reviewed a line of cases regarding the role of public relations firms that are retained to advise on how to best protect a clients’ interests in light of the fact that the client’s legal problem has been widely publicized and criticized. (In re Grand Jury Subpoenas, 265 F.Supp.2d 321 (S.D.N.Y. 2003); Bloomingburg Jewish Education Center v. Village of Bloomingburg, New York, 171 F.Supp.3d 136, 146 (S.D.N.Y. 2016); In re Chevron Corp., 749 F.Supp.2d 170 (S.D.N.Y. 2010)). The court then held that the privilege may be extended in those situations because the engagement with the public relations firm may form an integral role in assisting counsel in best representing the client and protecting its interests. This included services rendered by PR consultants after participating in confidential communications with counsel with the object of restoring balance and creating a level playing field for the client after the client had been prejudiced by damaging press. The court also noted that the privilege may remain in situations where a PR consultant is retained to counteract negative press-releases impacting the client that could influence the decisions of regulators or prosecutors and interfere with the client’s ability to get a fair trial in court and in the eyes of the public. By contrast, the court frowned upon the practice of hiring a public relations firms to initiate and develop media warfare to influence the outcome of case.

When hiring a public relations firm to assist in a case, attorneys should make sure that such engagement is essential to the attorney’s representation of the client. Beware of disclosing case strategy and important case information while communicating with a PR person as it may be discoverable. Attorneys should assume the communications with a hired PR consultant may be discoverable and take extra caution with respect to statements made in such communications. As a practice note, attorneys should refrain from written communications with PR persons, and that goes for the client as well. The attorneys should hire the PR firm, otherwise an argument could be made that no privilege would apply as there is not an agreement that would involve privileged communications because it is between non-attorneys. Finally, the client should be wary of communications with the PR firm without the presence of the attorney, as those communications may also be discoverable.