March 2022 Ethically Speaking - Hold the Presses! Are Communications With Public Relations Consultants Privileged?

by Carole J. Buckner

There is no “public relations privilege” in California. When a lawyer is representing a client in litigation and lawyer and client consult with a non-lawyer public relations or media consultant, are those conversations protected from discovery? Can the common interest doctrine shield the communications from discovery? Is the work product privilege applicable? The short answer is, “it depends.” California case law acknowledges that, in some cases, the attorney client privilege extends to communications with a public relations consultant. But it is said that courts are divided. The determinative factor is whether the communications were “reasonably necessary” to the representation of the client in the litigation. The first California case addressing the issue, Behunin v. Superior Court, 9 Cal. App. 5th 833 (2017), was examined in detail in Howard J. Klein’s June 2017 article for the OC Lawyer, Communications Between Counsel and PR Firms: Beware of Privilege Waiver. This article will revisit Behunin and examine subsequent decisions interpreting Behunin over the past several years. Based on the developing case law, demonstrating that work product protection or attorney client privilege applies to a lawyer’s communications with a public relations consultant continues to be a fairly challenging showing to make. Still, engaging public relations expertise is critical in many engagements including representation of high-profile clients, clients at reputational risk, or clients experiencing a crisis. A solid understanding of the law will help lawyers successfully navigate the risks that their communications may be disclosed later in discovery.

Foundational to the discussion is the attorney client privilege and the work product doctrine. A confidential communication between lawyer and client is defined to include information transmitted between lawyer and client in the course of the relationship, in confidence, disclosing the information to no third persons other than those present to further the interest of the client in the consultation or those to whom disclosure is reasonably necessary for the transmission of the information or accomplishment of the purpose for which the lawyer is consulted. Cal. Evid. Code § 952. Disclosures are privileged when “reasonably necessary” for the accomplishment of the purpose for which the lawyer was consulted. Cal. Evid. Code § 912. The burden of establishing privilege is on the party asserting the privilege and where there is a disclosure to a third party there is no presumption of confidentiality, so the proponent of the privilege bears the burden of establishing that the privilege applies. Behunin, 9 Cal. App. 5th at 844.

As to work product privilege, federal law is narrower than state law. California state law provides absolute protection for a lawyer’s impressions, conclusions, opinions, legal research, or theories. Cal. Civ. Proc. Code § 2018.020. Qualified protection extends to a lawyer’s evaluation of the law or facts. Coito v. Superior Ct., 54 Cal. 4th 480, 488 (2012). Notably, the work product doctrine under federal law extends to documents and tangible things prepared in anticipation of litigation or for trial by or for another party or its representative. Fed. R. Civ. P. 26(b)(3)(a).

The underlying litigation in Behunin involved a failed real estate investment. After the suit was filed, the lawyers hired a public relations consultant to create the “chuck-you.com” website linking the defendants to real estate investments in Indonesia and to its former dictator Suharto, with the goal of promoting settlement. Subsequent litigation for slander, libel, and invasion of privacy followed. A special motion to strike led to discovery requests seeking production of communications between lawyer, client, and public relations consultant. The court addressed the confidentiality of the communications involving the public relations consultant, whether they were protected by attorney client privilege, and whether the privilege was waived. Importantly, the client took the position that although the lawyer hired the consultant on behalf of the client, the lawyer played no role in the creation or publication of the website. The client, consultant, and lawyer intended that all communications would be protected by attorney client privilege, and all documents would be protected by work product privilege unless and until they entered the public domain. They alleged that the lawyer had engaged the consultant to execute legal strategies and tactics relating to the client’s litigation.

A discovery referee found it “unclear” whether the consultant actively participated in developing and employing strategy in the litigation or was hired to create the website. The referee held an evidentiary hearing and conducted an in camera review of documents, and ultimately overruled the objections and ordered production of communications between lawyer and client in which the consultant participated, but found communications strictly between lawyer and client privileged. Upon review, the court held that disclosure to the public relations consultant was not “reasonably necessary” because the proffered purpose, to develop and deploy the strategy and tactics of the client’s legal complaint, was no more than a conclusion without evidentiary facts showing why the lawyer needed the consultant to accomplish the purpose for which the consultant was retained.

The court distinguished federal cases extending attorney client privilege to situations where the consultant is the “functional equivalent” of an employee of the client. To meet that test, a detailed factual showing must be presented to demonstrate that the consultant was responsible for a key corporate job, had a close personal relationship with the company’s principals on matters critical to the company’s position in litigation, and possessed information possessed by no one else in the company. Behunin, 9 Cal. App. 5th at 853-54. The client could not satisfy these requirements.

Behunin also considered the application of the common interest doctrine, which allows persons who have common legal interests to share attorney-client privileged information without waiving the privilege, if those parties have a common interest in obtaining legal advice related to the same matter. Behunin found that the common interest doctrine did not apply because the consultant had no interest in securing legal advice from the lawyer regarding the same shared legal matter involving the client.

After Behunin, a federal court decision considered whether communications between counsel, client, and public relations consultant were protected by attorney client privilege under California law and the federal work product doctrine. Anderson v. SeaWorld Parks and Ent., Inc., 329 F.R.D. 628 (N.D. Cal. 2019). After the premier of Blackfish, a film critical of SeaWorld, SeaWorld’s retained counsel engaged two crisis public relations firms to work with counsel in developing legal strategy, including potential litigation. Although many of their communications were produced in discovery, some documents were redacted and others withheld based on claims of privilege and work product. The court indicated that documents reviewed in camera showed at most that SeaWorld and its counsel sought advice from public relations firms to better predict the public reaction to legal activities in response to the Blackfish film. The court said it is “not enough that the [third party public relations consultant] weighs in on legal strategy. Instead, the third party must facilitate communication between the attorney and client.” SeaWorld failed to meet this high bar.

Notably, SeaWorld asserted that its public relations consultants were the “functional equivalent” of employees. But, even assuming SeaWorld could make the “detailed factual showing” required by Behunin about the close relationship of the consultants with the company, the court found no evidence that the consultants possessed information possessed by no one else at the company, so this argument failed.

SeaWorld also considered the application of the federal work product doctrine. However, the court found that public relations is a business function, and the attorney’s own work product protection did not extend to public relations. However, the court held that a lawyer’s work product protection is not waived by disclosure to a public relations consultant hired by the lawyer who holds the work product in confidence, where the public relations firm needs to know the lawyer’s strategy to advise on public relations, and the public relations bears on the lawyer’s litigation strategy. The work product doctrine also protects documents prepared by a public relations consultant that “implicitly reflect” a lawyer’s work product. Therefore, the court allowed a narrowly tailored redaction of the communications between the lawyer and public relations consultant to exclude comments related to contemplated legal action, the lawyer’s opinions and legal conclusions, and potential litigation strategy.

Behunin also applied in another federal court case, In re Pac. Fertility Ctr. Litig., No. 18-CV-01586-JSC, 2020 WL 1924981 (N.D. Cal. Apr. 22, 2020) (applying California privilege law). The litigation involved an incident in which a tank storing frozen human embryos and eggs had failed, and the contents had thawed. Derek Hawkins, Jury awards $15 million in Landmark case over embryos, eggs destroyed in fertility clinic tank failure, The Washington Post, June 11, 2021, https://www.washingtonpost.com/health/2021/06/11/fertility-clinic-egg-embryo-verdict/. The communications between the lawyer and the public relations consultant were “about monitoring and predicting public reaction to the incident and subsequent lawsuits, managing messaging to patients, and determining how best to present the issues to the press and public.” After in camera review, the court held that the defendants’ inclusion of the third-party public relations firms waived the attorney client privilege. Even though the public relations firm consulted as to developing a strategy to respond to media inquiries in light of the lawsuits, the inclusion of the consultant was not necessary or essential to accomplish the purposes for which the client hired the lawyer.

In light of these authorities, lawyers must decide carefully whether and how to share otherwise privileged or work product information with public relations consultants. At the outset, counsel should consider whether the consultants involved are the functional equivalents of client employees, including their possession of information not otherwise possessed by the company. The lawyer’s engagement agreement with the public relations consultant should explain the relationship of the anticipated work to the contemplated litigation. Documentation of how specific assignments to the public relations consultant are required for the lawyer to give legal advice will make it more likely that communications will be held to be privileged. Evidence of the use of the attorneys’ thoughts, conclusions and legal strategies that are conveyed to the consultant can establish work product protection. Most of all, it is important for a lawyer to operate with an awareness of the law, and the knowledge that some information will not be protected from discovery, particularly if it is provided for business purposes, so that communications can be handled appropriately with this in mind.

Carole J. Buckner is a partner and general counsel with Procopio, Cory, Hargreaves & Savitch LLP, focusing on legal ethics, professional responsibility, risk management, mediation and arbitration. She advises lawyers and law firms and serves as an expert witness. She is a member of the OCBA’s Professionalism and Ethics Committee and can be reached at carole.buckner@procopio.com.