The attorney-client privilege can protect communications to or from a lawyer’s agents, who are assisting the lawyer in providing legal advice. This principle obviously covers a lawyer’s staff, and can also extend to consultants retained by lawyers to help them give legal advice (such as forensic accountants, financial advisors helping the lawyers understand financial issues, etc.). Courts have disagreed about whether the privilege can ever cover an outside public relations firm.
The court in In re Grand Jury Subpoenas dated March 24, 2003, No. M11-189, 2003 U.S. Dist. LEXIS 9022 (S.D.N.Y. June 2, 2003), held that the privilege did cover communications to or from a public relations firm hired by criminal defense lawyers to assist in defending a “high profile” former company executive who was the target of a criminal investigation. The court explained that “the ability of lawyers to perform some of their most fundamental client functions—such as (a) advising the client of the legal risks of speaking publicly and of the likely legal impact of possible alternative expressions, (b) seeking to avoid or narrow charges brought against the client, and (c) zealously seeking acquittal or vindication—would be undermined seriously if lawyers were not able to engage in frank discussions of fact and strategies with the lawyers’ public relations consultants.” Id. at *25. Although acknowledging the “artificiality” of distinguishing between public relations firms hired by the targeted executive and firms hired by the lawyers, the court nevertheless held that the privilege would not have protected communications if the target had hired the public relations firm directly, even “if her object in doing so had been purely to affect her legal situation.” Id. at *26.
Public relations firms’ work has traditionally been given work product protection under the right circumstances, but this seems to be the first time that the attorney-client privilege has also been applied. Lawyers should look for opportunities to take advantage of this expanded opportunity.