Shonda Rhimes knows how to tell a scintillating and entertaining story and keep us on the edge of our seats every week with the team at Olivia Pope & Associates (“OPA”) on Scandal. Olivia explained in Season 1: “We’re not a law firm. We’re lawyers, but this is not a law firm. We solve problems.” Every now and then, over the past three seasons, we have seen Olivia or Harrison in the courtroom or grappling with legal issues, but as Ms. Rhimes well knows, thorny legal issues surrounding privilege and attorney work product do not hold a candle to elicit affairs, murders and conspiracies to rig an election.
That said, I promised in the first installment of “Channeling your inner Olivia Pope” that I would drill down on the steps outlined in the article, and that requires injecting some law into the discussion which, albeit less exciting, is nonetheless important. My recommendations for channeling your inner Olivia Pope included: (1) preparing a crisis management plan in advance of a crisis and identifying potential crisis management firms for retention; (2) understanding that we serve the business and developing a strategic plan that is consistent with the company’s ultimate goals; (3) assembling a team of gladiators who will follow the playbook; and (4) being calm and focused in the center of a storm.
There are challenging practical considerations and critical legal issues associated with the suggestions I made. For example, if a company prepares a crisis management plan in advance of an actual scandal, is that plan discoverable or can it be developed in such a way to remain privileged? When and how do you retain a crisis management firm? Are there ways to structure the engagement of the crisis management firm and the communications with the consultant to ensure that communications and work product are protected from disclosure? Practically speaking, what does it mean to “serve the business?” How do you identify a team of gladiators and how do you ensure that they work as a cohesive team? As a practical matter, how do you “impose order on chaos?”
The downside of preparation of a crisis management plan in advance of the scandal is that it will likely be discoverable. While some may conclude that the discoverability of a crisis management plan weighs against its preparation, there is, nonetheless, some tactical planning that can still be pursued and potentially protected by the attorney work product and attorney-client privilege, and the “plan” can be reduced to a short, non-privileged crisis response checklist. Further complicating all of this is the fact that, even after litigation or other adversarial proceedings have begun, communications with public relations or crisis management firms may not be privileged. The key legal principles at work here are the attorney work product protection and the attorney-client privilege.
The attorney work product protection of Rule 26(b)(3) extends to documents and tangible things prepared in anticipation of litigation or for trial by or for another party or by or for that other party’s representative, and with the amendment to Rule 34(a), the protection applies equally to electronically stored information. The majority of the federal circuit courts determine whether materials are eligible for work product protection under the “because of” test. Was the document prepared “because of” the prospect of litigation? The minority approaches require that the “primary purpose” behind the creation of the material was to assist in litigation or that the material was prepared “for use in possible litigation.” Materials created in the ordinary course of business, for public requirements unrelated to litigation, or for non-litigation purposes are not protected under Rule 26(b)(3).
The nature of the materials, the factual situation (when, how, and by whom the materials were created), and the specific jurisdiction have led to a broad range of decisions, especially in connection with “dual purpose documents” – those serving both a business and litigation purpose – such as a crisis management plan or crisis response checklist. Olivia Pope often says, “We need to tell the story our way” because she knows adversaries will define the issues in the media for the company. In the middle of a crisis, it is challenging to identify and engage potentially supportive third parties, establish a communications strategy and rapid response team, and prepare company spokespersons. It’s a cost-benefit analysis that you will need to make – advance preparation versus potential discoverability. The legal framework described above can assist you in efforts to protect the plan, but because the analysis is highly fact-specific, the best strategy is to assume that it cannot be protected and plan accordingly.
The attorney-client privilege protects confidential communications between clients and their attorneys for the purpose of obtaining legal advice. In United States v. Kovel, 296 F.2d 918 (2d Cir. 1961) the attorney-client privilege was extended to a non-attorney for the first time. In In re Grand Jury Subpoenas Dated March 24, 2003, 265 F. Supp. 2d 321 (S.D.N.Y. 2003), the district court extended the attorney-client privilege to a public relations consultant that lawyers hired to advise in a legal matter. That case, related to the criminal investigation of Martha Stewart, is recognized as the most expansive interpretation of privilege, but has not been followed widely. See Haugh v. Schroder Inv. Mgmt. N. Am. Inc., 2003 U.S. Dist. LEXIS 14586 (S.D.N.Y. Aug. 25, 2003) (refusing to apply attorney-client privilege because a media campaign is not a litigation strategy) and In re N.Y. Renu with Moistureloc Prod. Liab. Litig., 2008 WL 2338552 (D.S.C. May 6, 2008) (distinguishing Grand Jury Subpoenas and finding email seeking legal advice, but copying employees of PR firm, was not privileged). These courts focused on whether the services of the PR consultant were necessary to the legal representation, whether the legal advice required the assistance of a PR consultant, and the nexus between the PR consultant’s work and the attorney’s representation of the client.
These thorny issues are never addressed in Olivia Pope’s world, but are critical in the real world. Best practices include outside counsel retaining the PR consultant and/or crisis management firm and billing it for services provided. The engagement letter should make clear that the consultant is assisting in the representation of the company and explain the nexus between the consultant’s work and the representation of the company. The attorney should be a primary point of contact for the consultant, direct the consultant’s work and be involved in meetings and communications between the company and the consultant. Legal advice and counsel should be integrated into discussions to distinguish between PR work done in the ordinary course of business and legal advice requiring the assistance of a consultant.
While the attorney-client privilege may not apply to communications with consultants, the consultant’s work may be immune from disclosure by the attorney work product protection under certain circumstances. As with the crisis management plan, you should study the law in the relevant jurisdictions and err on the side of caution when providing information to a PR or crisis management consultant, given the limitations on privilege and risk of waiver of privilege.
Serving the business means, first and foremost, that it’s not about you and what you think is best. Olivia Pope asks her client, “What do you want?” In other words, she communicates with the client and asks them to define what a successful outcome looks like to them and what they want their brand, reputation, and market position to be once the scandal is handled. You can be an amazing legal strategist and technician and “win” the case, but if at the end of the day the company has lost its customer base, employees are disillusioned and demoralized, the brand is irreparably damaged, or a necessary business partner is lost, then the business has not been served. This requires a short-, mid-, and long-term view and insight into the company’s objectives to ensure that the legal and business strategies are complementary. What would Olivia Pope do? Identify the key stakeholders within the business, encourage them to communicate, ask questions, listen to the answers, and facilitate a coordinated strategy to achieve the desired objective — as defined by the client. Every company’s scandal is unique, and there is no “one size fits all approach.” Serving the business entails sharing opinions, insights, options and expertise, but not losing sight of the company’s defined goal.
Assembling the team of gladiators can be very challenging because, unlike Olivia Pope, we often do not have the luxury of picking our team. OPA, despite some serious dysfunction this past season, works like a well-oiled machine because there is unwavering loyalty and trust among them, and they work toward a common goal. Diversity among your team of gladiators is essential because otherwise you risk a phenomenon where everyone on the team is “drinking the kool-aid,” meaning you have a team of people who, without critical examination, hold the same beliefs, philosophies, and strategies. Fresh and varied perspectives and networks are critical in a crisis, as individuals who are too close to the problem may not be able to see all viable solutions or be wedded to past practices. Bringing together a diverse team means requiring people with different personalities, working styles, and philosophies to work together.
A client can encourage collaboration through the “tone at the top” — making clear its expectation of each team member and avoiding role ambiguity and conflict. A written document delineating roles and responsibilities, and most importantly, enforcement of the stated roles and responsibilities by the client, are of utmost importance. In the end, there is no failsafe, and there is no perfect team because there are no perfect people, but if each member puts the client’s interest first, you are one step closer to Team OPA.
Olivia Pope is always calm, cool and collected in her professional life, and it is absolutely essential during a scandal. I think the Serenity Prayer captures succinctly what every gladiator must practice: accept what you cannot change, have the tenacity, courage and resilience to change what you can and have the wisdom to know the difference. We tend to believe that we can control everything, but the fact is that we can’t, and focusing your time, energy and effort on only those things you can control and releasing that which you cannot will make you a more effective advocate and strategist. Clarity of thought is essential for effective representation. There can be no clarity without first being composed so you can think strategically and ask the right questions of the right people to zero in on the mission-critical facts.
In the third and final installment in this series, I will examine the unique challenges women face in light of gender stereotypes and “double binds” for women in leadership. This is a topic near and dear to my heart and one about which there is considerable debate and difference of opinion. Further, it is a topic that is not only about gender, but also about race, ethnicity, and culture as well as the support (and sometimes lack thereof) for women in leadership by men and other women.