why no attorney client privilege for pr

Here, the court refused to apply the attorney-client privilege because the plaintiff failed to establish how a website created by a PR firm as part of an overall social media campaign aimed at inducing settlement was reasonably necessary to the plaintiff’s litigation strategy.

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Is PR counseling protected by attorney-client privilege?

Sep 19, 2017 · Keywords: public relations, attorney-client privilege, waiver. Resources. Edna Selan Epstein, The Attorney-Client Privilege and the Work-Product Doctrine (ABA 2017). Caroline Rule, How Not to Waive Privilege When Consulting Non-Attorney Experts or Professionals, ABA Section of Litigation (Nov. 30, 2016).

Does the attorney-client privilege apply to Kesha’s communications with PR firms?

Jan 01, 2017 · Some courts have ruled that bringing in a third-party consultant of any kind to advise the client within their area of expertise, however beneficial to the client, is not necessarily afforded the protection of attorney-client privilege. In an attorney-client relationship, the advice must be necessary to enable the lawyer to carry out her duties on the client’s behalf.

How to hire a public relations firm?

Feb 08, 2015 · The client may want to give the public relations firm authority to speak for the client when talking with the attorney, the press, and the public, as Sumitomo did in Copper Antitrust, so that the public relations firm becomes the “functional equivalent” of the client. When that happens, we are no longer talking about third-party communications with a lawyer, but …

Does a PR firm break privilege?

The court in In re Copper Market Antitrust Litigation held that a PR firm was the functional equivalent of an employee such that the privilege was not waived when counsel shared communications with the firm. In doing so, the court recognized that the PR firm was within the scope of privilege as defined by Upjohn Co. v.Apr 23, 2020

Are PR practitioners protected from having to disclose information about their clients in a court of law in the same way that lawyers are?

The privilege belongs to the client and prevents the disclosure of confidential communications between attorneys and their clients (subject to certain exceptions). But the privilege is not guaranteed to protect every communication involving a lawyer.Dec 17, 2019

Does attorney-client privilege exist in Canada?

The Supreme Court of Canada has held that it is not only the individual lawyer but also the firm as a whole that owes the fiduciary duty of confidentiality to the client. Neither you nor the lawyers in your firm may use confidential information against a former client of the firm.

Does attorney-client privilege exist?

The attorney-client privilege is one of the oldest and most respected privileges. It prevents a lawyer from being compelled to testify against his/her client. ... For the privilege to exist, the communication must be to, from, or with an attorney, and intended to be confidential.

What is the difference between confidentiality and attorney-client privilege?

The main difference between attorney-client privilege and attorney-client confidentiality is that the former is an evidentiary principle while the latter is an ethical principle.

Are conversations between attorneys privileged?

The attorney-client privilege is a rule that preserves the confidentiality of communications between lawyers and clients. Under that rule, attorneys may not divulge their clients' secrets, nor may others force them to.

What is the difference between confidentiality and privilege?

Confidentiality refers to the professional norm that information offered by or pertaining to clients will not be shared with third parties. Privilege refers to the disclosure of confidential information in court or during other legal proceedings.

What is legal privilege Canada?

A. Privilege. Privilege exempts documents and other forms of communication from having to be disclosed in legal proceedings. Canadian law generally requires all relevant and material evidence relating to the issues before a court to be disclosed to all parties.

Why does legal privilege exist?

The purpose behind this legal principle is to protect an individual's ability to access the justice system by encouraging complete disclosure to legal advisers without the fear that any disclosure of those communications may prejudice the client in the future.

How do I get attorney-client privilege?

No matter how the attorney-client privilege is articulated, there are four basic elements necessary to establish its existence: (1) a communication; (2) made between privileged persons; (3) in confidence; (4) for the purpose of seeking, obtaining or providing legal assistance to the client.

What should you not say to a lawyer?

9 Taboo Sayings You Should Never Tell Your LawyerI forgot I had an appointment. ... I didn't bring the documents related to my case. ... I have already done some of the work for you. ... My case will be easy money for you. ... I have already spoken with 5 other lawyers. ... Other lawyers don't have my best interests at heart.More items...•Mar 17, 2021

What is the difference between attorney-client privilege and work product?

According to the Cornell Law School Legal Information Institute, the “attorney-client privilege refers to a legal privilege that works to keep confidential communications between an attorney and his or her client secret.” On the other hand, the Cornell Law School Legal Information Institute proclaims “the work product ...Mar 17, 2020

Third-Party Waiver Exception Doctrines Applied to PR Firms

The attorney-client privilege protects communications made in confidence with counsel for the purpose of legal advice, but the privilege is waived if the communication is shared with a third party. Starting in 2001, courts applied two developing exceptions to the third-party waiver rule to PR firms.

Decisions Finding No Waiver

In NECA-IBEW Pension Trust Fund v. Precision Castparts Corp ., [9] the plaintiffs in a securities action moved to compel documents listed on the privilege log drafted by counsel for Precision Castparts Corp. (PCC) and shared with AMG, PCC’s PR firm, for comments.

Cases Where Courts Found Waiver

Other courts, however, have reached different conclusions. Following the premiere of “Blackfish,” a film critical of SeaWorld, SeaWorld and its counsel retained two “crisis” PR firms to work with counsel in developing a legal strategy, including considering potential litigation. In Anderson v.

Best Practices

While each case will turn on its facts, there are steps counsel can take to best ensure privileged and protected communications with PR firms retain their protection by making a clear record of what role the PR firm will play.

What was the first case to recognize a privilege for communications between a lawyer and a public relations firm?

After Calvin Klein things did not look bright for an attorney-client/public relations firm privilege. But then came In Re Copper Market Antitrust Litigation [200 F.R.D. 213 (S.D.N.Y. 2001)], the first case to recognize a privilege for communications between a lawyer and a public relations firm. The defendants, including the Japanese company Sumitomo, were accused of conspiring to manipulate global copper prices. Sumitomo hired RLM (the same RLM that CKI had hired) “because it had no prior experience in dealing with issues relating to publicity arising from high profile litigation, and because Sumitomo lacked experience in dealing with the Western media.” In fact, even the executives in Sumitomo’s Corporate Communications Department barely spoke English. RLM was therefore hired to act as Sumitomo’s agent and its spokesperson when dealing with the Western press on issues relating to the copper trading scandal. “The chief object of RLM’s engagement was damage control, i.e., the management of press statements in the…context of anticipated litigation ‘to ensure that they do not themselves further damage the client.’” RLM’s primary goal in representing Sumitomo was to help the Company keep the press statements “within the necessary legal framework–all with the realization, indeed the expectation, that each such statement might subsequently be used by Sumitomo’s adversaries in litigation.” Accordingly, RLM conferred frequently with Sumitomo’s outside counsel, Paul, Weiss, Rifkind, Wharton & Garrison (Paul Weiss) and with Sumitomo’s in-house counsel. RLM also prepared internal documents “designed to inform Sumitomo employees about what could and could not be said about the scandal.” And, in collaboration with Paul Weiss, RLM drafted public relations documents, press releases, talking points, and Questions and Answers to be used as a framework for press inquiries. The press releases were intended for different audiences, including regulators and other parties with whom Sumitomo anticipated litigation. When drafting these documents, RLM incorporated legal advice from Paul Weiss and Sumitomo’s in-house counsel, and all documents prepared by RLM relating to legal issues “were vetted with Sumitomo’s in-house counsel and/or outside counsel.” Crucially, RLM also had authority to make decisions on behalf of Sumitomo concerning its public relations strategy, and therefore was “the functional equivalent of an in-house public relations department with respect to Western media relations,” and even had authority to seek and receive legal advice from Sumitomo’s counsel with respect to the performance of its duties.

What was the first case to address the issue of attorney-client privilege?

The first case to address that issue was a trademark infringement action, Calvin Klein Trademark Trust v. Wachner [198 F.R.D. 53 (S.D.N.Y. 2000)]. In May 2000, in anticipation of filing a lawsuit on behalf of Calvin Klein, the law firm of Boies, Schiller & Flexner LLP (BSF) retained the public relations firm of Robinson Lerer & Montgomery (RLM) to act as a “consultant” to BSF for certain communications services related to BSF’s representation of Calvin Klein, Inc. (CKI). Defendants contended that BSF had retained RLM solely “to wage a press war against the defendant,” but plaintiffs said that they had retained RLM to help BSF “to understand the possible reaction of CKI’s constituencies to the matters that would arise in the litigation, to provide legal advice to CKI, and to assure that the media crisis that would ensue — including responses to requests by the media about the law suit and the overall dispute between the companies — would be handled responsibly. …” The court denied the protection of the attorney-client privilege, for at least three reasons.

What was the first case to extend attorney-client privilege to non-lawyer?

Perhaps the earliest case to extend the attorney-client privilege to conversations with a non-lawyer was United States v. Kovel [296 F.2d 918 (2d Cir. 1961)] , written by the great Judge Henry Friendly. In Kovel, a federal grand jury had investigated alleged federal income tax violations by a man named Hopps, who retained a tax law firm named Kamerman & Kamerman. A former IRS agent named Louis Kovel, who had been employed by the law firm for almost twenty years, worked with the lawyers on the Hopps matter and sometimes communicated directly with Hopps to discuss tax issues.

What is attorney client privilege?

Attorney-client privilege, a relative bedrock of Anglo-American law, is born from the policy concern that clients and attorneys should enjoy true, open, and honest communications. The privilege belongs to the client and prevents the disclosure of confidential communications between attorneys and their clients (subject to certain exceptions). But the privilege is not guaranteed to protect every communication involving a lawyer. When an attorney-client communication involves certain third parties, rather than, for example, agents of the attorney, the privilege may be waived. But is a PR firm a third party that destroys the attorney-client privilege?

Is PR privileged?

When a crisis presents itself, our natural reaction may be to respond to negative publicity immediately, while worrying about legal consequences in the future–but this may be a critical mistake. It is not automatic under the law that communications with a PR firm–even by in-house counsel–are privileged. If you bring in outside counsel early, counsel can advise on how to keep communications privileged, and can also assist in hiring a PR firm and taking other significant steps to help limit disclosure in litigation.

Can a PR firm be disclosed to a third party?

Normally, the privilege protecting communications between attorney and client is waived when communications are disclosed to a third party. However, there are several exceptions to this waiver doctrine that could potentially protect communications with PR firms from disclosure: (1) if the communication is necessary to allow the client to communicate information to the attorney; (2) if the PR firm is the “functional equivalent” of a corporate employee; and (3) if the PR firm was used by the lawyers to aid in legal tasks.

What is Bousamra v. Excela Health?

Excela Health, Pennsylvania’s first appellate decision discussing this issue, involved two physicians who held staff privileges at an Excela-operated hospital. 1 After Excela discovered that the physicians provided unnecessary treatments, it hired outside counsel to advise it regarding potential public statements about the physicians. Outside counsel wrote an opinion letter, and Excela forwarded this legal analysis to an independent PR team that it hired to create a media plan about the alleged misconduct.

What is the work product doctrine?

The BouSamra court also considered applying the work product doctrine - a doctrine designed to protect materials prepared by an attorney in preparation for litigation - to the opinion letter Excela forwarded to the PR firm.

What is the case of Behunin v. Superior Court?

Superior Court, the state’s first appellate court decision discussing attorney-client privilege in the context of third-party media and PR consultants, involved an unsuccessful business deal between Behunin and members of the Schwab family. 2 To induce settlement, Behunin’s attorney hired a PR consultant to create a website with information about the Schwabs.

What is the Bousamra and Behunin opinion?

The BouSamra and Behunin opinions show the potential risks of disclosing information to third-party media and PR consultants, even when they are retained in connection with litigation. The courts narrowly interpreted the exception to the waiver rule - and its application differs across jurisdictions.

Third-Party Waiver Exception Doctrines Applied to PR Firms

• The attorney-client privilege protects communications made in confidence with counsel for the purpose of legal advice, but the privilege is waived if the communication is shared with a third party. Starting in 2001, courts applied two developing exceptions to the third-party waiver rule to PR firms. The court in In re Copper Market Antitrust Litigationheld that a PR firm was the functio…

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Decisions Finding No Waiver

Cases Where Courts Found Waiver

Best Practices