Lawyers tend to operate within the clearly defined rules found in a court of law. Their clients, however, operate in the rough-and-tumble world of perception and reputation. Rules outside the courtroom lack clarity. Yet winning in the court of stakeholder opinion is equally as important to winning in court.
This applies to solo practitioners and small firms, as well as larger firms with the resources to contract with outside public relations counsel. The tips below can help you whether you are dealing with media, employees, or just about any other group that can affect a client’s reputation or ability to operate.
Why Stakeholder Perception Matters
Ask any lawyer how the media report the facts of a given case. “Misunderstood.” “Misrepresented.” “Completely out of context.” These are all common refrains from the bar.
Karl Robe, APR, Karl James & Company principal, coaches and counsels boutique litigation firms and large corporate law firms and their clients on stakeholder communications strategies.
Ask a reporter how lawyers communicate about specific cases. “Not at all.” “Not well.” “Not clearly.” All these are common refrains from outside the courthouse.
Ask defendants how a given case is affecting them. They will say they are getting mauled by media, and they are surrounded by stressed-out employees, confused suppliers, concerned customers, frightened family, and alienated friends. Meanwhile, regulators’ eyebrows are rising. And the list of stakeholder concerns goes on.
These are all important audiences for whom a communications strategy is needed to ensure client stories are told clearly, convincingly, and repeatedly. Many of these audiences are crucial to a client’s ability to function outside the courtroom.
Lawyers must think and act differently and more creatively. Lawyers who consider client implications in both spheres understand their role as legal counsel and can improve how clients are perceived with all mission-critical audiences.
Ethics: “Talking to the News Media about Criminal Legal Matters,” by Dean Dietrich (Wis. Law., Feb. 2010)
“Prepared for the Media Frenzy? Lawyer Ethics and Other Challenges in High-profile Cases,” by Joe Forward (WisBar InsideTrack, April 15, 2015)
“Crisis Management and the Media: Balancing Public Relations with Legal Issues,” by Joe Forward (WisBar InsideTrack, Oct. 5, 2011)
Ethics: “Talking to the News Media about Civil Legal Matters,” by Dean Dietrich (Wis. Law., Sept. 2009)
“Rapport with Reporters,” by Dianne Molvig (Wis. Law., Sept. 2009)
10 Questions. “Jessa Nicholson: On Defending an Unpopular Client in a High-Profile Trial” (Wis. Law., April 2014),
High-profile lawyers typically understand the power of working with public relations counsel. The higher profile the case, the hotter the spotlight. The hotter the spotlight, the more attention by audiences crucial to reputation and operations. For lawyers wondering what value public relations offers during litigation and other client matters, here are some – although not all – areas to consider.
Using Public Relations to Bolster Clients
Relationship Rules Matter. Public relations counsel supports the legal strategy. Typically PR counsel works behind the scenes. Lawyers usually are out front. Legal counsel remains the final arbiter. But expect vigorous debate before deciding which information to release publicly and how and when to release it. Expect PR counsel to challenge legal counsel on external strategies. Integrity and engagement win the day.
Journalists Know Things. Ongoing dialogue can help build relationships with reporters, who sometimes are privy to lies, rumors, and other leaked information. PR counsel can get advance warning to help prepare for what’s coming. You might be able to kill a baseless story if you can get in front of it. Doing so can prevent character assassination and other fallout from rumor-mill reporting. And, at times, a lawyer may gain insights into the agendas of people working against the lawyer’s own legal strategy.
Privilege. Attorney-client privilege is sacrosanct. Legal strategy is paramount. But lawyers can contribute to PR strategy without divulging facts or breaking privilege. It’s imperative that lawyers and their PR counsel both know the direction of a case.
Going Where Lawyers Won’t. Look at PR counsel as a means for engaging media and other audiences crucial to success. Lawyers focus on winning the legal battle. PR counsel support the legal strategy with audiences outside the courtroom.
Media Coverage Matters. Educating, giving facts, and helping shape the tone and temperature of the coverage derives from working with media. If you don’t tell your clients’ stories, someone else will – whether or not they know of what they speak.
Waiting is Losing. If the first story is wrong, all stories will be wrong from the water cooler to the front page. The first story lays the groundwork for the ongoing narrative. How often have you had a misunderstood legal term wrongly used and then negatively affect your client’s perceived guilt or innocence? This happens not only in the media, but with other groups as well, such as employees, suppliers, and more.
Sharing is Caring. Motions and filings become public record. Public record becomes a story. Every story is shaped, by outside groups with their own agendas, person-on-the-street interviews, reporters writing what they perceive, and legal experts without intimate knowledge of the case. If your client’s side of the story is not represented outside the courtroom, your client’s reputation will be shaped by everyone but the authority on what is happening … you, the client’s lawyer.
Legalese Kills Understanding. Legal jargon should be translated to common, digestible language. Even when reporters are in the courtroom, they still might not be receiving all the information. People not in the courtroom are even less likely to get accurate information. And the information they are getting also needs to be converted to understandable pieces. Work with reporters and other mission-critical audiences to ensure they understand what they hear. Give them context. Coach them.
Education Clarifies Complex Issues. Journalists and other key stakeholders need to be educated and given the context of facts. No one understands the issues better than the lawyers involved. But if you don’t help your clients engage mission-critical audiences, some people might not understand all the relevant information. Misunderstanding is the foundation of fear; fear is the foundation of rumor. Rumor is the direct result of high-interest matters where a vacuum of information exists. All of it works against your client outside the courtroom.
Coaching to Counter Punch. Preparing lawyers for engagement with media and other stakeholders is different than preparing oral arguments for court. Objections and other courtroom rulings don’t apply. PR counsel prepares lawyers and their clients for the mental, verbal, strategic, and tactical gymnastics of playing the media game and for communicating with employees, recruits, suppliers, community members, and others. Words matter, message timing matters, and delivery matters – all shape narratives. Narratives shape perception; perception determines reputation; reputation impacts trust; and trust determines the future.
The “public” in public relations encompasses internal and external stakeholders. Engaging these audiences and communicating with them shows leadership. Lawyers of all stripes function as go-to advisors when things go wrong or when clients anticipate potential hazards. Thinking through both the stakeholder effects and the legal implications of a matter will allow you to give your clients complete counsel.
Client Advocacy Outside the Courtroom: An Ethics Cautionary Tale
“Attempting to get your client’s position portrayed fairly in the media is one thing. Trying your case in the press is quite another. It can be easy to cross the line.”1
By Aviva Meridian Kaiser
In 2009, two Milwaukee police officers were attempting to arrest a defendant when he shot the officers with a gun purchased for him by a straw purchaser at a gun store. Both officers suffered lifelong disabilities. The injured officers sued the gun store alleging that the gun store was negligent in selling the gun. The police officers were represented by a local Milwaukee lawyer and two lawyers from a national gun control organization. A week before the trial was scheduled to begin in 2015, the national gun control organization posted information online about the case, some of which had been ruled inadmissible by the trial judge. On the day that jury selection was scheduled to begin, one of the lawyers from the national gun control organization was quoted about the case in an article posted on NBC News. The lawyer representing the gun store said that the national gun control organization lawyers had violated the Rules of Professional Conduct governing trial publicity.
After discussing the matter with the lawyers in his chambers, the trial judge permitted the two lawyers from the national gun control organization to withdraw from the case. In court, the trial judge admonished the national gun control organization lawyer for the conduct. “This is something that cannot be done, and it cannot be done through surrogates. The whole idea is to have a fair trial for absolutely everyone.”2
As this cautionary tale illustrates, attempting to “shape the tone and temperature” of media coverage by telling your client’s story may adversely affect the client’s case as well as violate the Rules of Professional Conduct.3
When considering client advocacy outside the courtroom, lawyers should be keenly cognizant of two rules: the confidentiality rule, SCR 20:1.6, and the trial publicity rule, SCR 20:3.6.
The Confidentiality Rule. The duty of confidentiality, SCR 20:1.6, protects all information relating to the representation of the client, whatever the source. 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.”4
Trial Publicity Rule. SCR 20:3.6(a) prohibits a lawyer from making an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter. The rule strives to strike a balance between protecting the right to a fair trial and safeguarding the right of free expression. “Preserving the right to a fair trial necessarily entails some curtailment of the information that may be disseminated about a party prior to trial, particularly where trial by jury is involved. If there were no such limits, the result would be the practical nullification of the protective effect of the rules of forensic decorum and the exclusionary rules of evidence.”5
Even seasoned litigators recommend caution. “The ethics for lawyers are that you can’t say anything that you could reasonably foresee as affecting the fact-finders,” Dean Strang says. Toeing the mark entails “a huge judgment call,” he adds, “and it’s murky.”6
Aviva Meridian Kaiser, Univ. of Buffalo 1979, is ethics counsel with the State Bar of Wisconsin. Reach her by email. Ethics question? Call the Ethics Hotline at (608) 229-2017 or (800) 254-9154. viva Meridian Kaiser, Univ. of Buffalo 1979, is a State Bar of Wisconsin ethics counsel.
1 Dianne Molvig, “Rapport with Reporters” (Wis. Law., Sept.2009).
3 Molvig, supra note 1 (“Ethical violations aside, there’s another good reason to refrain from trying a case in the court of public opinion, [George] Curtis points out. If, for example, you’re representing an individual in a major personal injury case against a large corporation, your pre-trial arguments that appear in the press may taint potential jurors. ‘The very people you want on the jury may end up getting disqualified,’ he says.”).
4 Joe Forward, “Crisis Management and the Media: Balancing Public Relations with Legal Issues,” WisBar InsideTrack, Oct. 5, 2011.
5 ABA Comment  to SCR 20:3.6.
6 Molvig, supra note 1.
Meet Our Contributors
Your company focuses on executive communications to influence attitudes and behaviors. What led you to form the company?
Karl James & Company believes above all else that credibility moves people. This belief guides our campaigns. Whether we’re engaged in client market research, brand creation, public relations (PR), crisis communication, advertising, lobbying, digital and event marketing, or employee communications, this belief is the basis of all we do.
The spark for the concept of Karl James & Company came early in my career. I worked as the PR director for a national trade association decades ago. The association CEO hired a Washington, D.C., lobbying firm to reach a handful of legislators. Not one was scheduled and the lobbying firm sent us a $75,000 bill. The association CEO paid the bill.
I thought to myself, “Hell, I could get at least one meeting as a guy off the street with no connections or lobbying experience. If I could get more than one, clients would think we were superheroes.”
The rest is history.
Karl Robe, Karl James & Company
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