What should counsel do to prepare for adverse media attention in the case of a governmental investigation, crisis or litigation?   

I recently spoke at the Texas Lawyer’s in-house counsel summit about the interplay between communications and legal issues in times of corporate crises, regulatory proceedings or significant litigation.  Counsel frequently face a situation where company statements become adverse evidence at trial.  Sometimes, statements in legal proceedings adversely impact the corporation’s reputation externally.  And, now that every pleading is posted online in Texas in fully searchable form, the communications issues arising from litigation are bound to multiply.

What should in-house counsel do to prepare for media attention around legal proceedings? First, if nothing is imminent, now is the perfect time to begin preparations.  Do you have in-house communications professionals?  What is their scope of work – marketing-related; speaking to financial analysts; employee communications?  Are they tasked with planning for crisis communications?  Does your company have a crisis plan that addresses communications, or is the crisis plan solely targeted to operational issues?  If your company lacks a crisis communications plan, begin developing one now.  There are many phases and inputs to such a plan, but a key concept is that internal stakeholders from the General Counsel’s office need to actively participate in developing that plan.

If your crisis, investigation or regulatory proceeding has already begun, go directly down the hall to speak with your in-house communications team.  If you don’t have one, find an outside advisor who specializes in legal issues.  Above all, avoid having the words “no comment” and “failed to return calls” printed in the newspaper about your client.  It is entirely possible to have a credible, true and consistent statement that expresses your client’s position when the media call, even if you have little advance notice.

As the crisis or regulatory proceeding evolves, in-house counsel must maintain their involvement in the communications cycle, but not for the reasons you (or the communicators) might think.  You are not there to tamp down all attempts to communicate with the media about your client’s position for fear that the legal risk will outweigh the benefits.  You should be involved because your participation helps ensure that the communicators know what’s coming in the legal process.  Your mutual discussions will educate both of you about the inflection points and risks from both the PR strategy and from the legal processes.  Your collaboration will help you develop the best results for your company in the face of a crisis or regulatory proceeding that commands media attention.