5273719v.4
HOW TO PROTECT PRIVILEGE WITH RESPECT TO
COMMUNICATIONS WITH LITIGATION-RELATED
PUBLIC-RELATIONS CONSULTANTS
by Charles L. “Chip” Babcock* and Crystal J. Parker**
Litigation specialists generally agree that many cases are decided not only in courts, but
also in the court of public opinion. This is especially true when high-profile clients or salacious
subject matters are involved. A New York court has noted that the media, prosecutors, and la w
enforcement ma y engage in activities that color public opinion to the detriment of the subject’s
reputation and even to the detriment of the subject’s ability to obtain a fair trial, such that
advocacy in the public fo rum is necessary.1 Not only can media coverage lead to a biased jury,
but it can create such negative publicity that affected companies have a financial incentive to
settle cases to avoid further reputational damage even where they are confident in the merits of
their case. Companies often fear that by the time the case is concluded, the press will no longer
be interested in the story, and the negative publicit y will have already taken its toll.
Several courts have recognized that efforts to control media messages are part of an
attorney’s duties. Justice Kennedy (writing for himself and Justices Marshall, Blackmun and
Stevens) in Gentile v. State Bar of Nevada stated that:
“An attorney’s duties do not begin inside the courtroom door. He or she cannot
ignore the practical implicat ions of a legal proceeding for the client. Just as an
attorney may recommend a plea bargain or civil settlement to avoid the adverse
consequences of a possible loss after trial, so too an attorney may take reasonable
steps to defend a client’s reputation and reduce the adverse consequences of
indictment , especially in the fa ce of a prosecution deemed unjust or co mmenced
with improper motives. A defense attorney may pursue lawful strategies to
obtain dismissal of an indictme nt or reduction of charges, including an attempt to
demonstrate in the court of public opinion that the client does not deserve to be
tried.”2
Some courts have even awarded attorneys’ fees for public-relations efforts.3
Even the American Bar Association has recognized the lawyer’s role in the media; in
1994 the ABA changed an ethical rule to allow an attorney to correct false publicity.
Given the importance of dealing with the media and most attorneys’ lack of experience or
education in dealing with the media, many companies turn to public-relations consultants to
1See In re Grand Jury Subpoenas Dated March 24, 2003 Directed to (A) Grand Jury Witness Firm and
(B) Grand Jury Witness, 265 F.Supp.2d 321, 330 (S.D. N.Y. 2003).
2 501 U.S. 1030, 1043 (1991).
3See, e.g. Gilbrook v. City of Westminster, 177 F.3d 839, 877 (9th Cir. 1999) (affirming an attorneys’ fee
award for media and public relations work in a civil rights action); Child v. Spillane, 866 F.2d 691, 698
(4th Cir. 1989) (stating that attorneys should be compensated for public relations in cases involving issues
of vital public concern).
* Partner, Jackson Walker L.L.P., Dallas/Houston, Texas
** Associate, Jackson Walker L.L.P., Houston, Texas
