A version of this article appeared originally in Strategies & Tactics.
When trouble hits, keeping the members of a company’s crisis team aligned on strategy and focused on working in harmony is crucial.
Why, then, do lawyers and PR advisers who work for the same company often seem like they’re on different teams when it comes to communication? They push back against each other’s counsel and take up precious time debating what the organization should say or, more likely, whether it should say anything at all, taking up precious time and adding stress and drama to situations where neither is in short supply.
What’s behind these inherent tensions? Why do relationships between lawyers and communications experts so often break down at the very point when mutual trust and collaboration are most critical? And what can those on the communications side do to forge more effective relationships with in-house and outside lawyers to best serve their mutual client?
The largest source of tension between legal and communications practitioners is very simple—we are programmed differently. When reputation is threatened, PR professionals seek to communicate because we believe that stakeholders expect to hear from us, and that silence will only make things worse. The lawyer, on the other hand, is concerned that anything the client says publicly could come back to haunt it legally. From the lawyer’s perspective, the simplest way to deal with this risk is to advise the client to remain silent and answer calls from media with a terse “we are unable to comment on litigation.” This is indeed the least risky strategy, but only for the lawyer, not for the client. For an organization whose reputation and future business prospects hang in the balance, not to communicate is the far more dangerous option.
“It is tempting,” the psychologist Abraham Maslow said, “if the only tool you have is a hammer, to treat everything as if it were a nail.” Indeed, over-reliance on familiar tools can be another source of friction. The lawyer’s toolbox consists mainly of blunt instruments like sharply worded cease-and-desist letters, legal motions and lawsuits that leave little room for subtlety, while the communicator’s go-to tactics favor empathy and understanding over aggression. In some circumstances, the lawyer’s forceful shot over an adversary’s bow may go entirely unnoticed by the public. In others, it can lead to the company being branded a bully and spark a self-inflicted reputational firestorm that a communications-led approach might easily have avoided.
Here are five ways to reduce the tension and build more collegial, collaborative relationships from which both sides and their mutual client will benefit.
Come together before there’s a crisis
The key to working more effectively in a crisis is to work more closely out of crisis. Coming to the table for the first time once a battle is already underway creates an unnecessary layer of conflict and distrust at a point when there’s more than enough conflict to go around and little time to debate decisions. Each side needs to understand how the other prioritizes and navigates a complex and evolving set of risks, and what success looks like through the other’s lens. That clear, two-way understanding is essential to keeping legal and reputational risks is the proper balance and achieving the best outcome for the client.
Learn the language
You’re not going to be successful at excising the legalese from communications without first understanding what it means and why the lawyer thinks it’s necessary. Becoming familiar with basic legal terminology and asking intelligent questions will go a long way toward gaining lawyers’ confidence and demonstrating that you’re both on the same team.
Bring value and insight
When communications experts speak the right language and show that they are sensitive to the gamut of risks lawyers have to contend with, the legal team is much more apt to seek their counsel on the reputational implications of their anticipated legal strategies. Likewise, if you can read a legal complaint with the eye of a journalist and walk the lawyer through the story a reasonably knowledgeable reporter would write having read only that one document, it will help them see clearly how their legal arguments will be perceived, and possibly misunderstood or misinterpreted, in the court of public opinion as well as in a court of law.
Recognize that legal and reputational interests are not mutually exclusive.
That balance between an organization’s legal and reputational priorities is dynamic, not static. There will be times during any litigation when legal interests must take precedence and communications needs to take the back seat, and times when the organization’s need to communicate outweighs the potential legal risks of doing so. Both sides have to work together to assess the communications strategy and adjust communications in real time.
Seek experienced outside reputation counsel
To bring value, the PR team must be privy to all aspects of the legal situation, from the legal theories that apply and the lawyer’s strategies, to the plethora of highly sensitive documents being drafted and exchanged. This needs to take place under the protection of the attorney-client privilege, which can be extremely difficult to maintain when working with the company’s day-to-day PR firm, particularly if they lack specialized experience with legal matters. Something as simple as improperly marking a document “privileged” can endanger the protected status of all other communications. Likewise, an email between two members of the communications team, or sent by a member of the communications team to another non-lawyer in the company, is not privileged and could have a similar effect. Where litigation is at stake, retaining a separate reputation management firm that is experienced with litigation and the intricacies of safeguarding legal privilege is good insurance.