By Thom Fladung, Hennes Communications
At Hennes Communications, we often tell clients that they have an attorney for the Court of Law. But they have us for the Court of Public Opinion.
And those two courts often require different – and at times conflicting – strategies.
Attorneys have persuasive arguments for tailoring a strategy completely around that court of law. Staying out of jail or avoiding paying multimillion-dollar lawsuit damages are, after all, powerful motivators.
But saving your reputation also should be a powerful motivator – especially since a reputation is a crucial asset.
Peter Sandman, one of the leaders in the field of risk and crisis communications, notes: “No lawyer is going to get into trouble by adopting a narrowly legal approach to the client’s problems, even if that approach leaves the client legally victorious but widely hated.”
And in this era of social media platforms like Facebook and Twitter, which operate instantly with no geographic boundaries, “widely hated” can literally mean worldwide.
In the article referenced below, Sandman sums up the conflict between attorneys and crisis managers in this manner:
Outrage management advice is often bitter medicine – uncomfortable, incompatible with aspects of the corporate culture, threatening to managerial ego, antithetical to the client’s own outrage. Even when they see its merits, clients normally hate my advice. Admit you messed up, I tell them. Say you’re sorry. Let your worst enemies help make it right, and give them the credit. Understandably, few companies and few individual managers find this counsel congenial. Once I’m gone, a client may well turn to an attorney and ask, “We can’t do that, right?” So the attorney says, “Right.” The client breathes a sigh of relief and reports back to me, “Our lawyer won’t let us do that.”
Of course this is more the client’s doing than the lawyer’s. “We can’t do that, right?” provokes a different response than “Help us figure out how to do that without unacceptable legal repercussions.” As for “Our lawyer won’t let us do that,” nobody ever says, “Our communication consultant won’t let us do that.” Managers who treat their attorney as a strategic demigod and their communicator as a merely human tactician are going to end up with an approach to controversy that is seriously unbalanced.
But lawyers would have to actually be demigods to resist their special status in the business environment. Inevitably their counsel tends to expand from legal advice to general business advice or even specifically communication advice, all cloaked in the stature of their legal expertise. “I wouldn’t do that,” an attorney intones about my recommendation to admit a mistake or even apologize for one … and the client crumples. If I’m in the room, I can ask: “Why? Will it damage the defense in some way? What way? How can we do it without damaging the defense?” Sometimes there are good answers to these questions; sometimes they are answers that mean the client really shouldn’t admit the mistake quite that openly or apologize quite that abjectly. Other times – more often, it seems to me – the attorney’s response to my probing comes down to this: “Well, I just don’t think it’s a good idea.” In other words, there isn’t really a legal problem; it just feels wrong. Of course attorneys are as entitled as anyone else to have opinions about whether, when, and how to address stakeholder outrage. But it’s worth noticing that our disagreement is in my field, not the attorney’s.
None of this is meant to imply that you can safely make outrage management decisions without your lawyer at your elbow. There are real conflicts. Finding a decent balance between communication considerations and legal considerations can’t be done without your lawyer. But it can’t be done by your lawyer alone either.
Sandman takes a deep dive into the issue of crisis communications, lawyers and outrage management in this piece. While written in 2002 – long before the current social media environment made reputation management an even more complicated challenge – the Sandman article remains vital in how it describes the delicate dance that must take place between client, attorney and crisis communicator for a truly successful end game.
You have a situation. We have a strategy.
Because the Court of Public Opinion is always in session.