High-profile litigation puts attorneys in a delicate position: clients want reassurance, the media wants answers, and the public wants transparency. But every word spoken risks crossing ethical lines or jeopardizing legal strategy. How can lawyers manage this tension: protecting confidentiality and privilege while still ensuring their client’s story is told accurately?
The answer lies in disciplined collaboration, careful structuring of communications, and a strategic use of court filings to shape the narrative.
The Privilege Problem
One of the most significant risks in high-profile litigation is inadvertently waiving attorney-client privilege. While in-house communications directors or marketing officers are trusted advisors, their involvement in litigation discussions can break privilege. Courts generally don’t recognize PR staff as part of the attorney-client relationship.
This creates a real challenge: communications professionals are essential to managing media relations, but their presence in sensitive discussions could make otherwise protected exchanges discoverable.
Best Practices for Preserving Privilege
To strike the right balance, attorneys should take steps to ensure PR support is integrated into the legal strategy without undermining privilege:
- The PR professional or firm should be retained by the attorney, not the client directly.
- Engagement letters should describe PR support as integral to litigation strategy.
- All communication should flow to the law firm, underscoring that the work is legal in nature.
- All communications should be marked “confidential and privileged” or “work product at the direction of counsel.”
- The lawyer remains the decision-maker, ensuring communications align with legal constraints.
By following these practices, attorneys can leverage PR expertise without sacrificing the protections of confidentiality.
Court Filings as Communications Tools
Sometimes, the best response to media scrutiny is not a press release but a public filing. Motions, briefs, and responses are all accessible records that can be written with both judges and journalists in mind.
Well-crafted filings – clear, concise, and free of unnecessary legalese – can send the right message without requiring direct media engagement. Instead of saying “no comment,” counsel can direct reporters to the company’s publicly available filings, ensuring accuracy without risking over-disclosure.
This strategy also has the benefit of credibility. Journalists understand that filings are official, vetted documents, which makes them powerful tools for shaping coverage.
Preparing Clients for Tough Coverage
Even with the best strategy, some negative headlines are inevitable. Lawyers should prepare clients for the likelihood of tough stories and reassure them that the news cycle will turn. What matters most is credibility and consistency during the storm.
This includes helping companies craft internal communications to employees, board members, and stakeholders. Anticipating questions and providing empathetic, clear answers can prevent leaks, reduce confusion, and reinforce trust. In many cases, how a company communicates internally has as much impact on public perception as what it says to the press.
The Takeaway
High-profile litigation demands more than airtight legal arguments. It requires careful management of privilege, disciplined collaboration with communications professionals, and strategic use of filings to control the narrative.
The attorneys who succeed are those who understand that professionalism and restraint are their strongest tools. By safeguarding confidentiality while guiding the story, they protect not only the client’s legal standing but also their reputation in the court of public opinion.
