SUMMER 2019 TODAY’S GENER AL COUNSEL
PRIVILEGE PLACE
In-House Counsel, PR Consultants and the Privilege By Todd Presnell
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catastrophic product failure, a relatively minor employee relations issue – any public relations crisis is often judged in the court of public opinion long before it is judged in a court of law. Company executives traditionally tasked the legal department with managing both, but increasingly they’re turning to public relations specialists to guide the organization through the court of public opinion. Unfortunately, lost in the crisis shuffle is the key question of whether the attorney-client privilege protects company lawyers’ communications with outside PR firms from disclosure. Fortunately, front-end strategies exist to increase the chances that lawyerconsultant communications never enter a court of law. The answer to any in-house privilege question begins with the foundational privilege elements. The corporate attorney-client privilege protects from discovery confidential communications between a company’s employees and its lawyers so that the lawyers can provide the company with legal advice. Each
Todd Presnell is a partner in Bradley’s Nashville office. He is a trial lawyer, and creator and author of the legal blog Presnell on Privileges (www. presnellonprivileges. com). He provides internal investigation and privilege consulting services to in-house legal departments. tpresnell@bradley.com
foundational element remains critical when communicating with public relations consultants, but the “employee” and “legal advice” components prove more troublesome. Two privilege concepts, however, provide in-house lawyers with opportunities to minimize these troubles: the Kovel doctrine and the functional equivalent doctrine. The Kovel doctrine, originating in the Second Circuit’s decision in United States v. Kovel, extends the privilege to
communications between a company lawyer and third-party consultants so long as those communications are for the purpose of assisting the lawyer in understanding non-legal concepts in order to provide the company with legal advice. The most common example is a lawyer’s communications with outside accountants. If an in-house counsel communicates with an accountant to better understand accounting concepts in order to provide the company with