Not all clients are in crisis situations – even if the tone of their email or phone call suggests they are. When there is a real, bona fide crisis, what are the lawyer’s ethical obligations? What about when the media gets involved?
What is a crisis?
A crisis can be anything with the potential to negatively affect a client. Crises and potential crises can vary in severity.
The death of a key employee could be a crisis. If the employee is particularly well known to the company’s customers, investors or the general public, then the death is more likely a crisis. If the employee was killed by an industrial accident in the company’s facilities, the death is a crisis much more likely to involve lawyers.
If the engineer had previously reported concerns about the safety of the company’s facilities to government regulators or the press, the situation is a crisis that will almost definitely require advice on management and communication. The company will have to both recover from the loss itself and overcome a potential public perception that it was involved in her death or could have prevented it.
What is crisis management?
Crisis management is about leadership and strategy in preparing for or responding to a crisis. It is every aspect of preparing for crises before they happen, from insurance and mitigation to communication. When a crisis hits, crisis management is the entirety of actions dealing with that crisis.
Crisis management should include both the litigation team and the communication team, both of which may include the company’s lawyers. It may also include product development teams, insurance adjusters or representatives, financial experts, supply chain professionals, and so on.
What is crisis communication?
Crisis communication, by contrast, is only one part of a crisis response plan. Crisis communication is about the messages put out by a party involved in a crisis. It is working to control the perception of the crisis.
Internal crisis communication deals with the intra-party communication. When a business is faced with a potential crisis, the internal crisis communication might be about reassuring employees, stakeholders or investors that the leadership is aware of and has a plan to address that crisis. For a litigant, internal crisis communication might be about deciding who needs information about the litigation, how much information and how best to communicate it to them.
External crisis communication is more traditionally what people think of when they think of crisis communication or public relations. It is controlling the flow of information and the messaging around that information to the public in order to best preserve a party’s goodwill with the public.
Ethical Obligations in Crisis Communication
Lawyers tend to shy away from crisis communication, which can be an oversight causing detriment to their clients. Speaking as a lawyer, we tend to clam up, to say “no comment” and to be very sensitive about the disclosure of any information. Should we?
One reason many lawyers avoid engagement may be fear of running afoul of the ethics rules.
The rules of ethics certainly do not prohibit lawyers from weighing in on considerations outside the direct legal implications of a situation. Rule 2.1 of the Rules of Professional Conduct specifically says that in rendering his or her advice, “a lawyer may refer not only to law, but also to other considerations such as moral, economic, social, and political factors that may be relevant to the client's situation.” Comment 2 to Rule 2.1 adds: “Advice couched in narrow legal terms may be of little value to a client, especially where practical considerations such as cost or effects on other people are predominant.”
Rule 3.6 prohibits extrajudicial statements that might affect the proceedings but subsection (c) of that rule makes clear: “a lawyer may make a statement that a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer's client. A statement made pursuant to this paragraph shall be limited to such information as is reasonably necessary to mitigate the recent adverse publicity.”
Advocating in the press is allowed when the purpose is to mitigate adverse publicity. Comment 7 to Rule 3.6 makes clear that “When prejudicial statements have been publicly made by others, responsive statements may have the salutary effect of lessening any resulting adverse impact on the adjudicative proceeding. Such responsive statements should be limited to contain only such information as is necessary to mitigate undue prejudice created by the statements made by others.
I believe attorneys do a disservice to their clients when they do not at least consider the benefits and drawbacks of more open communication (which could include proactive communication strategies and active communication with the press). In fact, Rule 2.1 suggests that attorneys should consider whether a permitted statement under Rule 3.6(c) would benefit the client and advise the client on that point.
The lawyer actually has an affirmative obligation to consider some communications. Competent representation of a client includes “advising the client of the legal ramifications of existing [social media] postings, future postings, and third party comments” on social media. 14 FEO 5.
When actively communicating about a crisis with parties other than the client, lawyers must be careful not to jeopardize their client’s case. That should be obvious. What is less apparent is the extent to which a lawyer can discuss the case under Rule 1.6, which governs the lawyer’s duty of confidentiality to clients. The ethical obligation under this rule is wider than simply refraining from disclosing privileged information or other nonpublic information.
Subject to the narrow exceptions in subparagraph (b), Rule 1.6 prohibits a lawyer from disclosing information “acquired during the professional relationship with a client unless the client gives informed consent.” As expanded by Comment 3: “The confidentiality rule, for example, applies not only to matters communicated in confidence by the client but also to all information acquired during the representation, whatever its source.” (emphasis added).
In theory, this means the lawyer must refrain from public discussion of the situation even where most of the details are already public. It is important for the lawyer to document consent.
One strategy here is to ensure the client is delivering actual messaging but the lawyer is helping to craft that messaging. Then, if they client is not comfortable with the disclosure, they simply do not make the statement or release the information. Making the client the spokesperson has the added PR benefit that often clients in a crisis who speak through their lawyer are perceived as “hiding” behind the lawyer.
Handling a client is crisis in difficult. Crisis coaching for lawyers is available and can be an invaluable tool to help you navigate your clients through a dangerous time.
This post originally appeared in our Put Into Practice October newsletter.