Are Public Relations Consultants Inside or Outside Privilege Protection?

June 29, 2016

Companies frequently turn to outside public relations consultants to assist both in normal media relations and when confronting crises. For obvious reasons, these companies must consider the privilege implications of involving such consultants.

In Guiffre v. Maxwell, defamation defendant Maxwell withheld communications involving her lawyer and her “‘media agent.'” No. 15 Civ. 7433 (RWS), 2016 U.S. Dist. LEXIS 58204 (S.D.N.Y. May 2, 2016) (internal citation omitted). U.S. District Judge Sweet found that the media agent’s involvement in otherwise privileged communications between the defendant and her lawyer destroyed any privilege protection. As the court put it, the media agent’s involvement “at best . . . establishes only that [the agent’s] input and presence potentially added value to [the lawyer’s] legal advice.” Id. at *24. But defendant “has failed to positively establish that [the agent] was necessary to implementing [the lawyer’s] legal advice.” Id. at *23-24. The court likewise held that defendant had not proven that she “was incapable of understanding counsel’s advice . . . without the intervention of a ‘media agent,’ or that [the agent] was translating information between [the lawyer] and Defendant in the literal or figurative sense.” Id. at *24-25. Significantly, the communications found undeserving of privilege protection involved a British lawyer and (presumably) a British media agent — whom defendant hired to assist her “in connection with legal matters in England and Wales.” Id. at *3.

The Southern District of New York has always taken an extremely narrow view of privilege protection for communications with client agents. Companies should remember that this hostile attitude might strip away possible privilege protection for communications outside New York, and even outside the United States. Fortunately, the more robust work product protection often protects litigation-related communications with public relations consultants.