Oct. 5, 2011 – The BP oil spill, Casey Anthony, and most recently, the Amanda Knox case, are good examples of how media outlets can impact the court of public opinion. So it’s important for lawyers to be prepared to publicly comment on high-profile litigation or other matters.
“The impact of social media is astounding,” said Evan Zeppos, president of the Milwaukee-based public relations firm Zeppos & Associates, who will co-present on this issue at the State Bar of Wisconsin PINNACLE’s Business Counsel Institute, Nov. 30 - Dec. 1, in Milwaukee.
Media lawyer Paul Kritzer of Bucher Law Group in Delafield says the thrust of a lawyer’s words to media is evermore present because of Internet communications. He is a former in-house counsel for Journal Communications Inc., which owns the Milwaukee Journal Sentinel.
“Media involvement can certainly help the public perception of a client on the offensive, but a lawyer on the defensive side would probably take a more conservative approach,” said Kritzer, who is also a former publisher and editor of the Waukesha Freeman. “Statements to media will hinge on the circumstances.”
The information super highway – including social media like Facebook, Twitter and blogs – has an immediate and lasting impact on public perception of events, Kritzer says.
“I used to say, ‘just try to give the full story,’ but times have changed. I’m not sure I would give that advice anymore,” said Kritzer. He says the blogosphere and other information technologies can make objective reporting difficult to find, and lawyers can help their clients by developing relationships with reporters they can trust to represent the client’s position accurately.
Zeppos says lawyers should prepare to speak with media because there’s usually no time to formulate an action plan after the other shoe drops. And a public relations strategy should account for the external audience that can immediately impact the client’s interest.
Businesses are often judged based on their response to crisis. Case in point: BP. It became public enemy No. 1 when the Gulf of Mexico oil spill unfolded in 2010. Time will tell whether BP’s immediate response, to shift blame, impacted the long-term damage to its reputation.
“If there’s an actual matter before a court or regulatory agency and they make a decision, that news will be communicated instantly whether it’s by Twitter or Facebook, or reports by local and national news outlets,” Zeppos said. “So everything is sort of fair game in that regard.”
Wisconsin Supreme Court Rule (SCR) 3.6 deals with trial publicity. It states that a lawyer can’t make statements to the public if there’s a substantial likelihood the statements would cause prejudice. SCR 1.6 defines the lawyer’s duty of confidentiality.
In a Wisconsin Lawyer ethics column, “Talking to the Media About Civil Legal Matters,” former Ethics Committee Chair Dean Dietrich explained what SCR 3.6 generally prohibits, such as the identity of a witness likely to be called at trial, and what it generally allows.
State Bar Ethics Counsel Tim Pierce says, “I frequently have to remind lawyers that they can’t talk to the press at all, about any client, unless they have the informed consent of that client.
“Any information that relates to the representation of the client, whatever the source, is confidential. So the attorneys must get client consent to comment on what happened in open court. After they get the informed consent, then they can start to worry about 3.6.”
Ethical rules may limit the scope and content of a lawyer’s contact with the press, but Zeppos says lawyers should still understand the different factors at play when it comes to speaking with media outlets, especially when the source of controversy involves businesses.
Crisis communication and issue management has changed, Zeppos says. Winning a court battle may ring hollow if a business has not addressed an issue in public view. Zeppos is among those that believe responding with “no comment” is no longer an option.
“Lawyers have to find a way to make a legal strategy work in tandem with public relations efforts,” Zeppos said. “In some cases, lawyers may do a disservice to clients by refusing to comment. They don’t have to say a lot, but they should say something.”
Zeppos helps business leaders and lawyers understand the different media responses that may be necessary to properly address the public’s interest in a legal issue. Like Kritzer, he says responses vary depending on the situation, but lawyers can still prepare by having the conversation with a client before disaster strikes, not after.
Preparation means getting in front of an issue before someone else does, Zeppos says, because ultimately, information will flourish with or without the client’s cooperation.
“Lawyers and business executives should expect that when they are dealing with sensitive matters that have a legal impact, there are external audiences,” Zeppos said. “Lawyers should find ways to account for that in keeping their clients’ interests in mind.
“You can’t allow the legal process to completely shut down your public communications,” Zeppos said. “Those communications can be modified to be sensitive to the legal environment in which you are communicating. But with no comment at all, the public may jump to conclusions.”
Zeppos says the most important message he sends to lawyers who represent businesses is to find a way to make legal and public relations strategies work together.
“The ability to merge strategy in the court of law and the court of public opinion, particularly in this day and age, is an important attribute for any lawyer,” Zeppos said.
By Joe Forward, Legal Writer, State Bar of Wisconsin