One of the greatest risks to corporate clients' privilege protection is their executives' and even their lawyers' misunderstanding about the availability of privilege protection for communications with public relations consultants. A remarkable number of cases address this scenario, and almost without exception courts reject privilege protection for communications with, or shared with, such consultants.
In Northwest Senior Housing Corp. v. Intercity Investment Properties, Inc. (In re Northwest Senior Housing Corp.), defendant unsuccessfully resisted discovery of its communications with its public relations consultant, contending that the public relations consultant "provided a need essential to [its law firm]'s legal representation." Chap. 11 Case No. 22-30659, Adv. No. 21-03040, 2023 Bankr. LEXIS 1001, at *7 (Bankr. N.D. Tex. Apr. 13, 2023). In ordering the communications produced, the court restated the question (and answered in the negative): "whether [the law firm] needed [the public relations consultant] in order to render legal advice." Id. Defendant predictably cited about the only case finding a public relations consultant inside privilege protection — a 2003 Southern District of New York case apparently involving Martha Stewart. In re Grand Jury Subpoenas Dated March 24, 2003, 265 F. Supp. 2d 321 (S.D.N.Y. 2003). As in nearly every case since then, the court found that opinion inapplicable.
Sophisticated corporate clients and their large law firms continue to get this wrong. There is some good news — disclosing pre-existing work product to a public relations consultant does not waive that more robust protection. But even that is tempered by more bad news — such public relations consultants rarely, if ever, can create their own work product-protected documents.
Published July 24, 2023.
