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Q&A: On crisis communications and attorney-client protection

Q: How can my organization use legal privilege to protect sensitive information when we’re dealing with a communications firm and discussing with them a controversial issue or a crisis?

A: [From Stephanie York, Hennes Communications:] You can never ensure that sensitive communications will fall under the attorney work product doctrine – ultimately, a judge must determine whether information is privileged and protected by the attorney work product doctrine. There are, however, steps your organization can take to bolster the argument that certain information is protected by the attorney work product doctrine.

It’s important to stress that this information should not be interpreted as legal advice.  Anyone with a question on whether specific communications fall under the attorney work-product doctrine should consult an attorney. Here, though, are some of the steps we take at Hennes to help support the argument that certain communications are protected under the attorney work product doctrine.

First, when working with a client who believes an issue will become a legal matter (or may already be a legal matter), we contract directly with the client’s attorney.  The language in our contracts state that the purpose for the engagement is to provide legal strategy, counsel and communications on behalf of the client in anticipation of litigation.

Second, all our written communications (email, texts and attachments included) contain language that indicate the information is being provided with the understanding that it is attorney work product and privileged communications. The language we use at Hennes, states:

Privileged and confidential attorney work product requested by counsel in anticipation of litigation.  Do not disclose without consent of counsel.

We place this statement prominently at the top of the document, in a bold red font.

Third, all our communications with the client are done with the attorney present (or on the call) and emails are sent directly to the attorney who disburses them to the client as appropriate.

While taking these steps does not ensure that a judge will determine that our communications are, in fact, attorney work product and therefore privileged communications, we can strengthen that argument with these practices.

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