For anyone involved in a newsworthy dispute, refusing to acknowledge our media-saturated modern world can be a dangerous proposition. As Amy Rao Mohan has already explained in the pages of this blog, attorneys need to embrace crisis communications and have to weigh the costs of falling back on a comfortable “no comment.”

But to disagree with P.T. Barnum’s apocryphal quotation, not all publicity is good publicity. Amy has already touched on the danger of a court’s holding that communications with a PR firm hired in the face of litigation might not be privileged, and you don’t have to be a lawyer to recognize that handing your opponents an outline of your strategy could both be a disaster at trial and a media nightmare. So instead we’re going to focus on a slightly different potential pitfall: when pre-litigation PR ends up coming into a hearing. Here’s one anonymized example.

A local public utility that had been purchasing its product from a nearby city in the same county decided to build its own plant both to be ready to scale up for future growth and to minimize long-term costs for its customers. The city from which the utility had been purchasing was about to lose its biggest customer by far and, perhaps predictably, did not like this plan. So the city hired a PR firm to help it generate opposition to the utility’s plans. The city’s PR firm circulated a petition challenging the utility’s plans to build a plant that appeared to be a grassroots campaign by the utility’s customers, rather than a move by the city itself. At first this PR campaign went swimmingly: where previous petitions had failed, this petition—the PR firm’s petition supposedly circulated by citizens concerned about rate changes should a new plant be built—collected enough signatures to trigger agency review and a contested hearing.

Once this hearing was on the horizon, however, the utility’s attorneys began to seek information from the city, including information about the PR firm and its contract. There was little the PR firm or the city could do to stop this disclosure; the material was certainly relevant to the overall challenge, and, because the city/PR firm relationships did not involve communications for the purpose of legal advice, attorney-client privilege did not offer any shelter. The city and PR firm’s cat was out of the bag.

…because the city/PR firm relationships did not involve communications for the purpose of legal advice, attorney-client privilege did not offer any shelter. The city and PR firm’s cat was out of the bag.

In the end, the utility withstood the petition both during the agency review and on appeal to the chancery court for a number of reasons, and the city-PR firm relationship was likely not the deciding factor. Still, during the hearing, the reviewing agency noted quite harshly that the PR firm’s work had camouflaged the city’s desires as those of the utility’s customers. And on appeal, the court also made a point to describe how the entire case was driven not by citizens but by a the city and the PR firm it had hired.

So what are the lessons here? The first is that a good public relations campaign can really help your cause. In this example, the city used a strong PR campaign to shift from being passively unhappy about a change to momentarily putting the utility on its heels. But the second lesson is that PR campaigns can be too aggressive. Aside from potentially violating rules of professional conduct by doing too much too soon, having a PR campaign backfire can undo all the forward progress you made and perhaps even set you back a few more steps—as the city in our story experienced once it became clear that it had been disguising its actions as those of concerned citizens.

Just as not all legal matters need PR coverage, not all PR work needs to have a lawyer involved. But if a client opts to engage in PR efforts for an issue that might well end up in court (or, in the case of our city, was sure to end up in a hearing), getting legal advice early may be critical to make sure that any initial gains don’t end up coming back to bite you.

photo credit:  Stuart Miles via freedigitalphotos.net