In the new media age, the perception that high-profile cases are litigated in the press or another public forum, such as in social media, is increasingly the reality. Extrajudicial statements by counsel or clients in the press or other media about potential or pending litigation are sometimes necessary, but are always fraught with risk. State bar rules of professional conduct are designed to curb public comments initiated by attorneys that could reasonably be interpreted as attempting to influence the judicial proceeding. However, the rules do not prevent statements that protect a client from substantial undue prejudicial effect of publicity not initiated by the lawyer or the client. The "litigation privilege" does not protect statements made in the press from actions for defamation, but First Amendment protection for truthful statements by lawyers and clients that relate to potential litigated outcomes do receive broad deference. In other words, while there are risks, the rules don't prevent a criminal defense lawyer from insisting in public that the client is innocent, but they do not protect a lawyer or client making defamatory statements about third parties that are not contained in official court papers, pleadings and arguments.
In this uncertain and risky climate, there are some basic guidelines that can protect companies and corporate counsel from the potentially dire consequences of public comments in high-profile litigation:
1. Control Communication:
- Give unambiguous instructions to company employees to refrain from commenting on litigation in writing in any form. This includes internal e-mail, text messages and postings or blogs on social media websites. The law is in its infancy in dealing with such comments, so it is impossible to know whether such postings will be discoverable or admissible. Don't run the risk.
- If company counsel has the benefit of a corporate communications group or consultant, coordination between these experts and litigation counsel is critical. Any public message should be carefully circumscribed to ensure that it accurately reflects the litigation posture and issues and is mindful of all potential audiences, including court, jury, shareholders and adverse parties.
- If public comment about a case is determined to be necessary, both the lawyer and client need to be involved in crafting a message that weighs the client's case-specific needs with the interplay between the rules of professional conduct, the litigation privilege, defamation law and constitutional protections.
2. Clear, Nonaccusatory, and Truthful Statements Are the RULE:
- Stay on the agreed message. Carefully scripted and succinct messages are best: "my client denies any wrongdoing and looks forward to being vindicated," for example. They are the easiest to evaluate before they are made and to defend if that becomes necessary.
- All counsel should agree on a press strategy at the outset. Whether it's "no comment," "our comments are in the public court filings" or some other crafted message, each conveys a distinct impression in the context of the case.
- Experts in media relations and crisis management exist and should be consulted if possible. The fact is that this is not what lawyers, particularly litigators, do well. However, in high profile matters, lawyer comment may be sought out by the press. In this case, the only invariable rule is to have a plan in place.
3. "Help" the Press if Possible: Lawyers need to know the rules of engagement with reporters. Quote for attribution; quote not for attribution;
off-the-record; on background--each of these phrases has a distinct meaning with the media, and lawyers need to know how each is interpreted in light of the rules that govern extrajudicial statements. Set the relationship in advance with the press by using these phrases. Even if the client and attorney have agreed on a no-comment strategy, there are many ways to establish a good relationship with the press to maximize the chances for favorable (or, at least, accurate) press coverage. Often, that can take the form of off-the-record communications to help the media understand and frame the story.
