When it comes to the attorney-client privilege, confidentiality matters. The privilege ordinarily is lost when otherwise confidential attorney-client communications are exposed to third parties, and that makes such communications vulnerable to discovery in litigation.

But companies often need advice from outside consultants on matters that overlap with legal concerns. How can attorneys loop outside consultants in on the information they need to know without jeopardizing the attorney-client privilege?

One common situation arises with consultants sought out for advice about public relations (PR) strategies because of ongoing litigation, or an emerging crisis that might result in litigation. After all, how a company handles its litigation PR strategy may well affect outcomes in both the court of public opinion and the courts of justice.

While the only sure-fire way to protect the privilege is to keep confidential communications just between the attorney and the client, authorities suggest some measures that corporate counsel and their outside lawyers can take while working with outside PR consultants to mitigate risks to the attorney-client privilege.

Consider the Precedents

Some courts use the “common interest doctrine” to extend the privilege to third parties like PR consultants, if the consultant can be deemed to be a representative or agent of the client. Some ask whether the communication involving the consultant was “necessary to the attorney's ability to provide legal advice.” Some ask whether the consultant is the “functional equivalent” of a client employee, such as whether the consultant had primary responsibility for a key corporate job, had a continuous and close working relationship with the company's principals on important matters, and possessed information that no one at the company possessed. And some jurisdictions have applied a combination of these factors, or rejected them, or have no authority on the issue at all.

If litigation has not yet started, it may be hard to predict which court will end up deciding privilege issues, so keep all the various approaches in mind. But generally speaking, courts will carefully scrutinize the circumstances and want to see solid evidence that the attorney is relying on the PR consultants' expertise in order to give legal advice to the client.

For example, in Pemberton v. Republic Services, a 2015 case, a PR consulting firm was retained to handle media scrutiny about a landfill's alleged public health risks and related litigation. Although the defendant submitted a declaration explaining that negative publicity made defending the lawsuit far more difficult, that the consultant worked with attorneys on an almost daily basis, and that the consultant's role was to consider how media communications would affect prospective and ongoing litigation, the Eastern District of Mississippi held that the communications were discoverable. In its view, there was insufficient evidence that counsel relied on the consultant's expertise when formulating legal advice.

Take Precautions and Supervise the Relationship

Before the PR consultant is retained, be clear about how the consultant will facilitate the provision of legal advice, and consider spelling out that purpose in the consultant's contract.

Consider other contractual terms as well, such as confidentiality provisions, an agreement that inadvertent disclosure should not be deemed a waiver of the privilege, procedures the consultant should follow to preserve confidentiality, and procedures for if the consultant is served with a subpoena related to the retention.

Counsel, rather than the client, should then supervise the PR consultant. The consultant should not be from the PR consultants usually used by the company, or the retentions should be segregated. The consultant's invoices should reflect the legal purpose of the PR work as later they may be useful evidence if privilege is challenged.

Limit What Is Shared With the Consultant, and How

Proactive attention to what is shared with a litigation PR consultant, and how information is shared, will also help limit potential waiver issues.

Limiting communications reduces the universe of material that is potentially discoverable. In a 2017 case, Behunin v. Superior Court, the issue was whether documents could be subpoenaed from a PR consultant retained for a social media campaign designed to induce the defendants to settle. The California court ruled that the documents were not protected by the privilege and were discoverable, because it was not necessary for the attorney to share information with the consultant for the attorney to do the legal work. In the court's view, the consultant could have done its job and, more importantly, the attorney could have done his, without exchanging the confidential client communications.

Closely supervising how information is shared also can help. For example, consultants can be instructed to limit the team authorized to work on the litigation retention and to ensure that their computer systems have adequate data security measures. Documents should have notations reflecting “attorney-client privileged,” “attorney work product,” or that the communication is to aid with the provision of legal advice, as appropriate. Special attention should be paid to email, so that unnecessary recipients are not added, and emails are not carelessly forwarded.

Prepare to Defend the Privilege

Should use of an outside PR consultant result in subpoenas or document demands, expect defending the privilege to take considerable work. Privilege logs may be required for documents that are withheld or redacted. If the issue is pressed further, additional evidence may be needed, whether in the form of affidavits, redacted exhibits, or deposition testimony.

Lisa M. Baird is a products liability and appellate lawyer in Reed Smith's life sciences health industry group who provides strategic advice on product liability matters and complex litigation as well as counseling on product recalls, crisis management, the attorney-client privilege, and the work product doctrine.

Erica Yen is a senior associate in the same industry group who specializes in pharmaceutical and medical device product liability litigation and also provides counsel on data management and e-discovery issues, including cross-border discovery, privacy, and the attorney-client privilege.