In-House Counsel: Protecting Legal Privilege When Working With Outside Public Relations Firms

Third-Party Waiver Exception Doctrine and Best Practices in Compliance With Kovel and Copper Market Antitrust Litigation

Recording of a 90-minute CLE video webinar with Q&A


Conducted on Thursday, April 22, 2021

Recorded event now available

or call 1-800-926-7926
Course Materials

This CLE course will prepare in-house counsel to protect confidential business communications that may be shared with public relations firms in the course of protecting the company's public image or handling a current crisis. The panel will address the standards of meeting the third-party exception doctrine defined in a recent series of cases and best practices for protecting communications and attorney work product.

Description

Companies may consider engaging a public relations firm to help them address issues that may gain public attention. This may become particularly important in a COVID-19 world, as customers and others scrutinize statements and actions relating to safety precautions and procedures. Companies are finding their communications with PR firms at the center of some legal challenges.

Once litigation starts, discovery requests will include communications with the company's PR firm, including those with the company's in-house and outside counsel. While counsel may believe these communications are protected by attorney-client privilege, the privilege recognizes two exceptions: (1) the necessity test and (2) the functional equivalent test. When and how these exceptions are recognized are fact- and jurisdiction-specific. Rather than assuming privilege, counsel must consider the information communicated to PR firms by the company, the nature of the PR firm's role, and whether litigation is real or threatened. The result is that this area of privilege law is fluid and outcomes vary.

In litigation and beyond, counsel should evaluate why a PR firm is needed and what information is provided. Counsel must document the client's relationship with the PR firm and separating engagements from general public relations and when litigation arises is key. In-house counsel must be mindful of communicating with a PR firm when no litigation is pending, particularly when the company hired the PR firm regarding its regular business operations.

Listen as our authoritative panel guides how in-house and general counsel can communicate and work with public relations firms while still maintaining privilege. The panel will provide best practices to help position a company to protect itself when it needs it most.

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Outline

  1. Reasons to engage a PR firm
    1. Litigation
    2. General public image
  2. Privilege
    1. Overview
    2. Waiver
  3. Exceptions to waiver
    1. Necessity test
    2. Functional equivalent test
  4. Best Practices to preserve privilege
    1. Documentation
    2. Engagement agreements
    3. Billing

Benefits

The panel will review these and other important topics:

  • Reasons to engage a PR firm: during litigation and outside litigation
  • What types of communications are privileged and work-product privileged
  • Standards for the necessity test
  • Standards for the functional equivalent test
  • Best practices for documentation and billing

Faculty

Fisher, Donna
Donna L. Fisher

Retired Partner and Pepper Center Fellow
Troutman Pepper

Ms. Fisher is a Troutman Pepper Retired Partner and is currently a Fellow of the Pepper Center for Public Service,...  |  Read More

Hamilton, Matthew
Matthew J. Hamilton

Partner
Troutman Pepper

Mr. Hamilton Partner in Troutman Pepper’s Philadelphia office. He has more than twenty-four years’...  |  Read More

Tarver, Brett
Brett A. Tarver

Attorney
Troutman Pepper

Ms. Tarver defends primarily pharmaceutical and medical device companies in litigation involving mass tort, personal...  |  Read More

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