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Don’t Hit ‘Send’ On Those Emails Before Calling Your Attorney

By Stephanie York/Hennes Communications

Q. We have an emerging issue. When should we contact our attorney?

A: When an organization is facing a crisis or an emerging issue that may evolve into a crisis, employees typically start talking about it – especially via email and texts.

It’s easy to fire off messages to colleagues, managers and executives to apprise them of the situation and maybe even suggest, prematurely, what caused the crisis.

In fact, we find that during an emergency, people may want to communicate immediately without much thought about the method of sending information. Those early emails and texts, how they are delivered and to whom, may be critical to an organization’s reputation and operations.  And, those messages will live forever, now as a part of the history of the incident and eternally preserved electronically – thank you, Gmail, iCloud, Exchange, Siri, Alexa, iPhone and Android.

Our years of experience in these emotionally charged situations have taught us that organizational leaders should first act to protect anyone whose safety may be threatened by the crisis (i.e., put the fire out) and then as quickly as possible bring your attorney into the situation – before a paper trail of emails and texts have been created. A slow-burning issue affords leaders the opportunity to call an attorney first, and then devise a strategy and execute.

Organizations with crisis communications plans will have a road map for those initial messages to be sent in those critical early moments when an organization’s employees, customers, business partners and other key stakeholders are watching and waiting to hear your side of the story. We write those plans with messages, blessed in advance by the organization’s leadership team including attorneys, designed to respond to the most likely crisis scenarios.

Organizations that do not have crisis communications plans should first seek counsel from their attorneys on what to say and to whom, because the attorney is in the best position to set up proper channels of communication to protect those early and often raw communications by attorney-client privilege, and/or attorney work product.  Your attorney’s first call may then be to a firm like Hennes that specializes in crisis communications. Why?  Because your attorney knows that those initial communications, while critical to conveying urgent matters, can subject the organization to enduring reputational attacks if not done properly.

When the client contacts us directly, we suggest bringing the attorney in immediately. For the same reasons, the attorney is in the best position to decide whether communications should be drafted for the attorney in anticipation of litigation vs. being drafted directly for the client. And while no one, including an attorney, can guarantee that a judge will determine that sensitive communications  fall under the attorney work product doctrine, having a client’s attorney hire  the outside expert to help with litigation support can bolster the argument. If it’s decided that outside experts are not needed, the attorney can still set the parameters to cover internal communications under attorney-client privilege.

It’s important to stress that this information should not be interpreted as legal advice. We encourage anyone to ask their attorney about whether specific communications fall under attorney-client privilege or the attorney work-product doctrine.

What I can tell you with certainty is that employees who immediately email and text others in the early stages of a crisis, without those messages going through an  attorney, risk exposing all those communications to outsiders, including potential and current litigants, the media and the public.

Stephanie York is an attorney and vice president with Hennes Communications. Got a question about crisis communications, issues management or reputation management? We’ve got the answers. Send your question to [email protected]


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