Representing a government entity presents unique challenges when it comes to high-profile litigation. Open records and meetings laws expose the actions of a government office to public scrutiny before, during, and after an action is taken. This article will provide an overview of issues and responses to those issues you should consider before, during, and after a major lawsuit hits your agency.
Expect the expected. Help your client minimize risk by taking steps to avoid being sued altogether.
It’s your job to know your client by developing a thorough understanding of day-to-day activities and projects. What is your agency working on that may cause heightened interest? Constantly assess the work of your agency, its risk, and its potential liabilities. Act proactively and creatively to avoid litigation.
Expect the unexpected. Steps that you should take to prepare your agency for major litigation or crisis include the following:
Build relationships with reporters, legislators, and other constituents so that when a crisis develops, the relationship is not automatically adversarial or distrustful. Also, think ahead and have contracts in place with outside vendors that you may need in a crisis.
Develop an internal crisis communications plan so that the right people are notified immediately. This can be done through an agreed-on calling tree in which each person has one or two others that he or she is responsible for notifying. Or you can choose one person who has responsibility for notifying everyone on the list. The key is to have already compiled a list of crucial players who must be notified.
Establishing and training a team of the key players who will provide an immediate and coordinated response to a crisis is vital. The team will vary depending on the agency, but, generally, it should include the chief executive responsible for managing the policy and day-to-day operations; in-house counsel and perhaps outside counsel, depending on the situation; a risk manager or insurer; the human resources director; the director of communications/media relations; and possibly the legislative director or constituent affairs director. The goal is to have representation from all the key components of the agency.
You’ve been sued. Now what? After your agency has been sued, you should follow a set protocol: Convene the team, prepare the team for litigation, develop an action plan, develop a routine for ongoing coordination, and manage employment issues.
Convene the team. The key purpose of the initial crisis management team meeting is to understand why and how the litigation occurred and identify short- and long-term goals. The team must have a common understanding of the background surrounding the litigation.
Understanding the individual goals of different aspects of the agency’s management is vital. Everyone on the team will not have the same goals. In fact, some of the goals may appear to conflict with other goals within the agency. The executive’s goal will be tied to policy and keeping the work of the agency moving forward. The insurer’s goals will likely be to find the easiest and most efficient path to resolution. The communications/public relations person’s goals will be focused on managing the message. And, as the lawyer, you have responsibility over all these areas, as well as the overall goal of assessing and mitigating litigation risk. Ensuring that everyone understands each other’s goals and concerns is critical so that inadvertent actions that may undermine another’s goals are avoided.
Prepare the team for litigation. Immediately discuss with the team issues that are crucial to managing litigation. Especially when dealing with high-profile litigation, it is essential that your clients understand the scope of the attorney-client privilege and the ways that privilege can be inadvertently waived. They should also be advised about discussing with others matters pertaining to the litigation and what it means to have a discoverable conversation. At the initial meeting, carefully explain the client’s responsibilities to preserve potentially relevant documents and the possible sanctions for loss of documents.
Develop an action plan. At the end of the initial meeting of the crisis management team, it is critical that each person leave with an understanding of his or her respective action items. Crisis easily drives people to indecision and inaction. The more specific and focused tasks can be, the easier it will be to keep the agency moving forward.
Develop a routine for ongoing coordination. The team should schedule regular coordination meetings to check on progress and goals. One person should have overall responsibility for coordinating the team. The agency’s top lawyer is an ideal candidate to take on this role because his or her portfolio covers all aspects of the agency’s work and the coordination can be protected by work-product and attorney-client privileges.
Coordination of actions is especially critical. For example, ensure that the office doesn’t inadvertently hold a press conference announcing a high-priority policy project on the same day that a significant brief is filed or a hearing is held that will attract media attention. As a general matter, the communications team should be alerted any time there is some action in the litigation that may spark interest so that it is prepared to respond effectively.
Manage employment issues. Agency employees dealing with a lawsuit may find it intimidating and draining, either because employees’ actions are at issue or because they are participants in the litigation process. The following is an overview of issues related to individually named defendants and employee witnesses that you and your human resources department should consider.
Determine whether an individually named defendant was acting within the course and scope of employment. This will inform questions of whether the agency will defend and indemnify the employee or whether independent counsel should be hired for the employee.
To help manage employee morale and unrest, issue proactive guidance to employees about what they should do if they are contacted by an attorney, investigator, or reporter about the litigation. Be mindful that any written guidance to employees may be leaked outside of the agency. Therefore, make sure that it is objective and practical advice and issued from the human resources department, not from general counsel, so that there are no arguments around waiver of privilege.
When meeting with any employee, be very specific in establishing the scope of the attorney-client relationship at the outset. Clearly state that you represent the agency and that you are not the employee’s lawyer. Tell employees whether their communications with you are privileged—and, if so, the importance of maintaining privilege and how privilege can be waived.
Employees who are not named as defendants but who may be fact witnesses can pose a challenge in terms of representation and attorney-client privilege. While management employees are often considered “the client” for purposes of asserting an attorney-client relationship, nonmanagement employees may not be considered “the client.” Therefore, opposing counsel may be able to talk to them directly without presence of counsel, and conversations with nonmanagement employees may not be protected by an attorney-client privilege.
The aftermath: Debrief. When litigation concludes, the natural reaction is to physically and emotionally box it up and move on to the next project or crisis. Instead, convene your team to debrief about the underlying event that caused the lawsuit and review the litigation process. Ongoing issues—such as repairing harm to the agency or managing staff morale or personnel issues—may need to be addressed long after a judgment is entered. Assess whether additional actions are necessary and continue to coordinate any follow-up as needed.
ABA Government & Public Sector Lawyers Division
This article is an abridged and edited version of one that originally appeared on page 2 of The Public Lawyer, Winter 2018 (26:1).
For more information or to obtain a copy of the periodical in which the full article appears, please contact Alison Hill at 202/662-1024 or email@example.com.
PERIODICALS: The Public Lawyer, twice-yearly magazine (winter and summer); Pass It On, quarterly newsletter.
CLE AND OTHER PROGRAMS: Legal Skills Conference, October 26, 2018, Washington, D.C.; regular webinars.
OTHER RESOURCES: Podcast series “Compelling Conversations with Colleagues” examines various public-sector positions, providing a wealth of information about careers in the public sector. Episodes include interviews with a prosecutor, city attorney, a JAG lawyer, and a public defender and are available at www.governmentlawyer.org and iTunes (search ABA Government).