July 01, 2017

Crises Small Firms May Face: Media Relations as an Ethical Duty

Dave Poston

This is the third in a series of three articles on crisis communications for small firms and sole practitioners.

Many lawyers—mistakenly—believe that their ethical duties as they relate to media relations begin and end with the ABA Model Rule of Professional Conduct 3.6(a): Trial Publicity:

A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.

But it can’t be that simple, can it? Certainly not.

Attorneys may mistakenly believe in this simple ending to the question because the broader question is daunting: What are your ethical duties of advocacy, and how do they relate to media relations for client matters in today’s 24-hour and social media news cycle?

In the Preamble to the ABA Model Rules, a lawyer’s responsibilities include:

[2] As a representative of clients, a lawyer performs various functions. As advisor, a lawyer provides a client with an informed understanding of the client’s legal rights and obligations and explains their practical implications. As advocate, a lawyer zealously asserts the client’s position under the rules of the adversary system. As negotiator, a lawyer seeks a result advantageous to the client but consistent with requirements of honest dealings with others. As an evaluator, a lawyer acts by examining a client’s legal affairs and reporting about them to the client or to others.

ABA Model Rule 1.3: Diligence in the Client-Lawyer Relationship states: “A lawyer shall act with reasonable diligence and promptness in representing a client.”

Comment 1 to Rule 1.3 goes further, stating:

A lawyer should pursue a matter on behalf of a client despite opposition, obstruction or personal inconvenience to the lawyer, and take whatever lawful and ethical measures are required to vindicate a client’s cause or endeavor. A lawyer must also act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client’s behalf. . . .

Thus, the real and complicated answer to the question is that attorneys have a vast and expansive responsibility to understand how the media, however the outlets and audiences are defined, could practically and potentially impact their client representation and their clients’ businesses. This is true even if attorneys never proactively take steps to interact with any outlet or audience on behalf of their clients.

To prove the point, simply look at how many general counsel oversee communications for their companies. How can one be a great lawyer who understands his or her client’s business or life without also understanding these issues?

In sum, the real answer is: An attorney’s ethical duty of advocacy demands an understanding of and a plan for media relations for each matter.

 

Fear the Media?

Attorneys cannot fear working with the media. They must tackle that fear and become masters at crisis communications, litigation public relations, corporate and investor relations, social media, and more. When read further, ABA Model Rule 3.6(a): Trial Publicity seems to assume that most attorneys do know how to work with the media simply because it lists complicated options to pursue in client representations. It further states:

(b) Notwithstanding paragraph (a), a lawyer may state:

(1) the claim, offense or defense involved and, except when prohibited by law, the identity of the persons involved;

(2) information contained in a public record;

(3) that an investigation of a matter is in progress;

(4) the scheduling or result of any step in litigation;

(5) a request for assistance in obtaining evidence and information necessary thereto;

(6) a warning of danger concerning the behavior of a person involved, when there is reason to believe that there exists the likelihood of substantial harm to an individual or to the public interest; and

(7) in a criminal case, in addition to subparagraphs (1) through (6):

(i) the identity, residence, occupation and family status of the accused;

(ii) if the accused has not been apprehended, information necessary to aid in apprehension of that person;

(iii) the fact, time and place of arrest; and

(iv) the identity of investigating and arresting officers or agencies and the length of the investigation.

(c) Notwithstanding paragraph (a), a lawyer may make a statement that a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer’s client. A statement made pursuant to this paragraph shall be limited to such information as is necessary to mitigate the recent adverse publicity.

(d) No lawyer associated in a firm or government agency with a lawyer subject to paragraph (a) shall make a statement prohibited by paragraph (a).

Do you, as an attorney, know how to address what is allowed by the rule on behalf of your client and when it is proper or good to do so? Do you know what to do when the other side brings the media to bear in your case? Could you sit in “first chair” and lead a communication strategy and team regarding the practical impacts?

 

How to Add Media Relations to Your Daily Legal Counsel

Law is conflict, and news is conflict. Thus, as an attorney, your head is already in the game. Making a plan is as easy and simple as these five steps.

  1. Write down the potential media relations impacts of any matter. Could the corporate business opportunity be big news? Could litigation or a crisis result? What is the worst-case scenario in the litigation? Should you write a press release into a settlement agreement?
  2. Assess your gut response. What does your gut tell you to do? Would media help at all? Who can help you to review your gut reaction? What if the other side pursues media coverage?
  3. Assess your ability to respond. What questions do you have? Whom can you turn to, to help analyze your abilities?
  4. Write down your communications strategy, including if it’s to not have one. How you will implement it? Do you know how to implement your strategy? Where can you find additional resources?
  5. Review your legal strategy and repeat. Has the media analysis changed your strategy? Could you map new options?

By conducting this exercise, you are furthering your duty of advocacy.

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Dave Poston

 

Dave Poston is a licensed attorney and founder of Poston Communications (www.postoncommunications.com), an agency of more than 25 professionals working with lawyers around the world on their various communications strategies.