The line between lawyering and litigation communication is blurring. Lawyers are Tweeting – even about their own cases. Communications strategists are running social media campaigns regarding impact litigation. Documentarians make films supporting litigation positions. Even criminal defense counsel are no longer automatically answering “no comment.” Amidst this swirl of spin, the notion of defensive litigation public relations is starting to seem quaint. So this is an opportune moment to take a fresh look at whether and when litigation public relations efforts are protected within the attorney/client privilege and the attorney work-product doctrine.
The conventional wisdom among litigators was always that when the client needs communications strategy help in a dispute, the law firm should retain the public relations counsel so they can work as a team within the attorney-client privilege and attorney work-product protection. It’s done all the time. But does it really work? Recent decisions in both California and New York reveal that, like most conventional wisdom, it’s an incomplete and often inaccurate truth.
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