Know When and How to Talk to the Media

Something scandalous has happened with your company—a class-action employment discrimination claim, a massive environmental spill, an SEC action for misstated financial statements. The media is clamoring to get a statement from the company. Who they gonna call? Whomever they can get to first! That may be you, as in-house counsel. Your contact information is often easily available on the state bar’s website.

So, you have an email sitting in your inbox from the local newspaper, a voicemail waiting for you from the local TV station, or, worse yet, you didn’t screen that unknown call and you are now stuck on the phone with the media wanting the company’s statement now. What do you do? First, don’t freak out. Next, like any crisis, it’s best to take a deep breath and plan your response. Here are some steps to ensure you effectively represent your client—the company—while not evading the media.

Check Your Internal Policies—Are You Authorized to Talk?

The biggest mistake you can make is to violate your company’s preestablished policies, if any, concerning engaging with the media. Obviously, you should speak only if you have authorization from the company to do so. Remember that speaking comes in many forms. Never directly speak to media, post on websites, including LinkedIn or Facebook, or tweet your views on a particular issue without authorization.

Larger companies likely have a preestablished authorization procedure. Your employee handbook may require all employees to route any media inquiries to a corporate communications department, which may communicate on behalf of the company with the media. If you must transfer the media inquiry to corporate communications, follow up with that department to ensure that the matter is being handled.

You Transfered the Inquiry to Corporate Communications—Are You Finished?

You’ve now passed the buck to the communications department. Does that end your work? Not necessarily, because you are still the company’s lawyer. You may need to work with your corporate communications department to assist with the particular legal issues involved. While your communications department may be well versed in effective communication, the complicated legal issues may become muddied. You need to work with the communications experts to ensure that the content of any communications is accurate and does not adversely hurt potential future legal arguments.

What If You Can't Transfer the Inquiry?

Suppose you can’t pass the buck to another department. What do you say to the media?

In all cases, you should respond in some way to the media inquiry, even if the response is no more than, “The company declines to comment at this time.” If you fail to provide any response, a story could run without the company having an opportunity to respond.

Tips for Negotiating Your Response

In crafting your response, remember the reporter does not command the situation. You may be able to negotiate a response on your and the company’s terms. Consider the following tips for negotiating your response:

• Know with whom you are speaking and the publication for which they work.
• Try to get the questions ahead of time. Be wary of questions that are “off script” or out of line with the other questions. Know that any of your “agreements” with the reporter (for example, to get the questions ahead of time) may be reported.
• Research your answers and craft your responses carefully. Think of how many ways your answer can be twisted. This process will be especially important with TV, radio, or other audio interviews, where there will be few if any re-dos. You may be able to negotiate with a print reporter to review and revise your answers.
• What is the ideal content of your response? Of course, there is no ideal, but your response can be on your and the company’s terms. Do not be pressured into giving a statement before you or the company are ready. Just because you accidentally picked up a media cold call does not mean you have to provide a shoot-from-the-hip response. Politely ask for additional time, and ask if there are any immediate questions for which you can prepare. Should you just give the “no comment” response? It may be entirely appropriate in a situation. Just remember whatever the reporter writes, it will be followed by, “The company has no comment.”
• Not only your words, but also your body language, mannerisms, facial expressions, and other body cues may be reported. Be aware of how you look and act while you are being interviewed.
• Watch for reporters who will carry you to an extreme statement with leading questions. They may try to get you to grossly overstate a position, but you must be on the defensive. However, do not get visibly defensive or emotional

Whatever you say, be sure it is not legally protected from disclosure. The company is your client, and Rule 1.6 of the Model Rules of Professional Conduct, which is substantially identical in most jurisdictions, prohibits the disclosure of “information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation,” or the disclosure is permitted by the exceptions outlined in Rule 1.6. Be sure your statement complies with other applicable laws. For example, a public company may be limited by SEC rules and regulations in what it can disclose to the press, such as when a merger or acquisition is contemplated. For public companies, be particularly sensitive to the disclosure of non-public information that can affect your company’s stock price.

Talking to the media can be a win for your company or a tool for more trouble. Use these tips to plan your measured, careful response to benefit your company, your client, greatly.