Will What You Tell a Communications Consultant Be Discoverable?

It depends on how the consultant is retained and what the consultant does. Courts have extended the privilege to communications with a public relations consultant retained by counsel where the consultant’s work was necessary to the legal advice. They have refused it where the consultant was doing ordinary public relations under a different label. The structure of the engagement decides which one you have.

The two decisions counsel will know

In one Southern District of New York decision, a grand jury subpoena case from 2003, the court protected communications with a public relations firm that counsel had retained to help manage a situation bearing directly on the legal strategy. In an earlier decision from the same court, Calvin Klein Trademark Trust against Wachner, the court declined to protect a public relations firm doing what public relations firms ordinarily do. The difference the courts drew was not the title on the door. It was whether the consultant was retained by counsel, directed by counsel, and necessary to counsel’s work. Ask your lawyer to check the authority in your jurisdiction; this is a description of the shape of the law, not advice on it.

What the structure looks like

Retained through the firm, with an engagement letter that says the work is at counsel’s direction and in anticipation of litigation. Work product prepared because of the litigation, not for general publicity. A written protocol for what goes out and who approves it. A log. No side work for the client that is not part of the case. The same documentation that supports the privilege argument supports a common benefit fund submission later, which is one reason I keep it from day one.

What I say when a lawyer asks

Privilege decisions stay with counsel. I am retained through your firm and work at your direction, and I keep the file in a way that lets your lawyer make the argument if it is ever needed. That is also why I do not send a distribution list or run anything a reporter could later describe as a campaign. Everything is specific, sourced and approved. The engagement, in full →