Where Public Relations And The Law Meet In A Media Intensive Environment

Wednesday, March 1, 2006 - 00:00

Editor : Would each of you tell our readers something about your
professional background?

Baretz: I am a partner at Hellerman Baretz Communications, a boutique
communications/public relations firm that specializes in working with law firms
and financial services companies, particularly with respect to media relations,
crisis communications and litigation PR.

Lasky: I am a partner at Davis & Gilbert and co-chair of the
litigation practice. Prior to joining D&G 22 years ago, I had the privilege
of serving as law clerk for the Hon. Lee Gagliardi in the Southern District of
New York. I also spent four years litigating at Paul Weiss.

When I joined D&G, I was the 25th lawyer. Today, we have one hundred
lawyers, and the firm's growth has all been organic. I came to D&G because I
was looking for a firm with industry-specific and market expertise, and one
where I could be both advocate and counselor. I have been most fortunate in my
choice of firm.

Editor: Mr. Lasky, you also are head of the firm's public relations
practice. Can you give us an overview of this practice?
How has it
evolved over time?

Lasky: My marketing communications work tends to mirror what has
happened in the industry. In the early 1980s, when I joined the firm, it had a
substantial presence in the advertising industry. However, I began looking at
other marketing communications companies where the collective expertise of the
firm might be utilized by other types of marketing - and people-intensive
companies. Public relations firms seemed to be a good market for the expertise
we possessed in employment, litigation, IP, acquisitions, and so on. Because of
work I did for a large public relations firm, I was asked to speak at a national
meeting of the Public Relations Society of America. That, in turn, led to a
monthly column on legal affairs for a trade journal. In time, public relations
firms and trade associations were reaching out to me, and my practice in this
area began to accelerate.

I come to this practice as a litigator, but I have considerable substantive
knowledge of the industry and the law that governs it. That enables me to serve
my clients in a counseling capacity, advising them in many different areas of
law in a more holistic way.

Editor: Mr. Baretz, you are a co-founder of Hellerman Baretz. What is the
firm's origin?

Baretz: The firm is five years old and the creation of my partner,
John Hellerman, in Washington, DC and me. My career in public relations is
really an outgrowth of having been a lawyer at the place where public relations
and the law meet. Following law school I clerked for U.S. District Judge I. Leo
Glasser, who has handled many of the most high profile trials in the state of
New York with many of the most visible attorneys. My clerkship made me realize
and appreciate the strength of the press' interest in legal issues as well as
attorneys' intense desire for publicity and the power it can provide.

Following my clerkship, I joined the Corporate Department of Rosenman &
Colin (now known as Katten Muchin & Rosenman), where I worked for a client
named PR Newswire, a major news release distribution company, from which my
knowledge of the PR business grew. Working with PR Newswire, combined with my
dealings with the attorneys at Rosenman, led me to realize there was a real
opportunity for someone with PR expertise to help law firms communicate their
expertise to the markets they serve. I left the firm and founded our company to
pursue this opportunity and market need. We now have about 10 people working at
our company in offices in New York and Washington, DC.

Editor: Can you give us an overview of the services that Hellerman Baretz
provides?

Baretz: The core service we provide is defined broadly as media
relations. That means helping our clients attain more visibility in certain
target media, mostly directed at specific industries and market segments. It
involves helping lawyers to be quoted in trade publications and the national
business press and helping them to obtain speaking engagements at conferences
and before trade associations. We also help them secure writing opportunities
for these audiences. In addition, much of our work involves providing strategic
counseling. That involves helping lawyers identify certain niche specialties -
Michael's public relations firm practice is an example - and devising ways for
these attorneys to connect with and attain more visibility in those markets. We
are also engaged in crisis communications and litigation PR services and are
often brought in by the lawyers with whom we work to help with the matters that
they are working on with their clients.

Editor: Following the corporate scandals, one of the interesting points of
discussion revolves around how corporate counsel should advise the CEO in the
face of a potential media crisis. Would you share with us your views?

Lasky: I recently served on a panel at a meeting of the Agency
Management Section of the Public Relations Society of America which was asked to
deal with a simulated crisis situation and specifically to make an appropriate
public announcement. Enron and Arthur Andersen were very much on everyone's
mind. What was interesting about the exercise was the variety of views it
engendered - that of inside counsel, outside counsel, the CEO, the CFO, outside
PR counsel, and so on - each from a different perspective. The people who played
the points of view of the professionals in these positions represented different
disciplines. The result was that they came up with very different responses to
the same issue. In our own profession of law, increased specialization can lead
to a rather narrow focus when there is a need to consider a wider group of
constituencies. In any event, the lesson, I think, is to attempt to take into
account the different ways of looking at the issue before going public
with statements on strategy. In many of these situations there is no single best
practice, but there is a need to look at the issue from the standpoint of
potential litigation and, to the extent possible, through the eyes of
shareholders, employees, competitors, the general public, and so on,
simultaneously.

I think we are well past the notion that "silence is golden" when dealing
with these issues. That does not mean, however, that you should blurt out
the first thing that comes to mind in the interests of attaining transparency.

Baretz: I agree. A "no comment" response today conveys culpability. In
our age of media saturation, it is important to communicate a meaningful message
to the company's core audiences at the first stage of the crisis. There is a
real challenge here. The message may have to be tailored for each such audience,
and it is essential that this not result in conflicting or contradictory
versions of the message. I can think of no worse situation where the possibility
of litigation is looming.

Editor: Can you give us specific examples of your work here?

Lasky: It is important to marry the collective expertise of a general
counsel and the information the media will be most drawn to into coherent and
simple messages. Just recently, I was called upon to represent a well-known
author and celebrity in connection with potential claims he had for breach of a
confidentiality agreement by his former wife. He was engaged in an unpleasant
child custody dispute, and the adverse publicity was affecting the business of a
significant company associated with his name. I was called in by the company's
general counsel to work with the client's family law expert on potential
violations of a judicially approved confidentiality agreement. I also worked
with outside PR counsel and crisis management counsel to ensure the accuracy of
messages concerning the litigation and that messages were delivered in a way
that would not impugn the defendant's business. The point here is that in order
to draft a public statement on this issue, and one that would revive the
company's fortunes, it was essential to understand what the judge had previously
ordered in the context of what the media would likely report on. That entailed
drawing upon the expertise of general counsel, PR counsel, the family law expert
and myself.

One of the other issues confronting PR firms at present is their own
potential liability for issuing a statement, which, even if approved by the
client, is either false or misleading. This is called "messenger liability."
Much of the potential exposure in this area derives from the situation where the
public relations firm fails, for example, to indicate a material fact about the
claim being made. One example would be that a company spokesperson is not
independent but rather has been paid by the client or by the firm. Very often
this kind of exposure can be avoided if the PR firm is astute enough to consult
with legal counsel. That is what I mean by marrying the collective expertise.

Baretz: Along the same lines, we recently handled the litigation PR in
a dispute between two major liquor companies, one in a dominant market position
and the other, our client, closing in on the leader. The case revolved around a
variety of false advertising claims brought by our client. The litigation
strategy anticipated reaching out to several high-visibility business
publications and broadcast media on the day the complaint was filed to explain
our client's position. The messages were very carefully drafted, strongly taking
into account the litigation strategy, with input from all of the professional
advisers. After a couple of weeks of media attention, the matter settled very
quickly.

Editor: I am sure that the relationship between corporate counsel and
public relations counsel is a delicately balanced one. How do you go about
ensuring that the attorney-client privilege extends to the lawyers'
communications with public relations firms?

Lasky: That is an important and interesting question, particularly in
situations where public relations and strategic counseling in a media intensive
environment has become so crucial. The short answer is to be knowledgeable about
the landscape, because the question presumes that there is an
attorney-client privilege and an attorney work product privilege. Unfortunately,
the public relations practitioner, if he or she is not extremely careful,
does not have those protections in their counseling and strategy work
unless very specific steps are taken at the outset. D&G regularly advises PR
firm clients on the steps that they can take to maximize these protections in
sensitive engagements. First, be certain to have the public relations
firm retained by the lawyers. Second, if the PR firm is handling other
work of a non-sensitive nature for this client, have the PR firm bill for it
separately and to a business person, while the sensitive work is billed to the
attorneys under a separate engagement letter. That gives notice to the world
that the matter is regarded, at least by the parties to the arrangement, as
privileged. Third, have the PR firm provide its advice and counsel
directly to the lawyers - and not to the client - for incorporation into the
overall legal strategy. Fourth, label all documents, memoranda, e-mails,
reports, and so on, in a way that reflects the claimed privileged status.
Fifth
, limit review of the client documents to only those provided to the
lawyers for purposes of obtaining legal advice. Finally, once the dispute
over the privilege starts, portray the PR firm's activities in such a way as to
show that they are part of the investigation or litigation. In the example
Spencer just gave you, it was essential for him to be reporting to the legal
team and for his work to contribute to the legal strategy.

Baretz: We are extremely cognizant of this issue, and all of our
communications are framed in light of the legal strategy. In the context of a
crisis or a potential litigation, that means working with both inside and
outside counsel to disseminate a message fully cognizant of the repercussions of
what that message conveys.

Lasky: That, of course, is very unusual for a public relations firm.
In my experience, the PR firms that do not deal principally with lawyers are
only beginning to become aware of the pitfalls here. It is incumbent upon
general counsel and the members of corporate legal departments to bring them
into full awareness of the issue.

Please email the interviewees at mlasky@dglaw.com or sbaretz@hellermanbaretz.com with questions about this
interview.