Here’s something that will come as a surprise to some lawyers but not to anyone in business. A company’s first potential liability in a crisis is usually its reputation, not legal risk. Thus, while it is important for crisis communications to be accurate and specific and to mitigate legal risks, this should not generally be the driver of crisis communications. In fact, legal risk can often be managed, and it often rises and falls according to how well the firm manages its reputation and whether clients trust it to do the right thing.
To be effective in a crisis, lawyers must cooperate with other stakeholders in the business, most often people in the communications or public relations group. Knowing the essence of the law, facts and good judgment is not enough. Attorneys must build relationships with callers, learn from them, and provide coordinated solutions with them. To that end, here are some tips designed to help attorneys become more effective advisors and communication partners.
Relationship building and preparation
If it is the first time the attorney and communicator have worked together in a crisis, panic and disagreement are likely. Spend some time getting to know the communicators, their priorities, the challenges they faced, and how to best support them. Humble curiosity goes a long way.
Collaborate with them to build material models and logistics plans. Build timely and effective legal review (eg, dedicated workspaces and shared live documents). Be clear about roles, approvals, and timing expectations. The practice is, ideally, the likely scenario where you go through the drafting and implementation flows in detail. If you didn’t cover these issues before the event, cover them first. The legal snag at the last minute will drive people crazy. It is the lawyer’s job to identify these issues in advance where possible and include them in the roadmap.
We value the communication experience
It is generally best to bring in the communication equipment early and take the time at the start of the crisis to download the communication software, if you don’t already have it. Communicators often know the business and its stakeholders better than attorneys. They regularly develop disciplined communications that drive the organization’s key brand messages and reinforce the mission, vision and values. They know the important partners and customers, how the crisis will affect them, and what they want most. They know what was said before and what is planned to be said in the future. And they know how difficult it can be to logistically effectively implement communications, even if you say the right thing. Lawyers can disregard this knowledge at their own peril and usually end up either with non-lawyer contacts leading to inaccurate or imprudent communications or vice versa resulting in missed or stakeholder and deafening communications. Addressing these issues upfront and leveraging networking expertise goes a long way toward protecting the business.
It is easier to identify areas of legal risk than to be part of the solution. Avoid being a slow and no group. Distinguish between what is required or prohibited by law and the large area of gray in between, and offer options where possible. Include reasoning with the conclusion up front, not only because it is helpful to your collaborators, but because it is useful to the attorney in determining the type of problem and potential solutions. Let the illegal stuff go, or if you think it’s important, be clear that you’re swimming off your lane, so that’s a consideration.
Take advantage of North Star opportunities
Mitigating legal risk is not always compatible with the firm’s other goals (ie, firms are often willing to take on more litigation risk by being more transparent). But when those two things align, lean in hard and take advantage. For example, after a data breach has occurred, it may sometimes be possible that communication enables others to take preventative action or can help protect relationships. These procedures can help reduce legal risks by reducing the risk of litigation. There are many different variables and ways in which an account changes, but be aware of these opportunities. When there are differences of opinion, listen and respect them, and live with decisions that are not yours.
Business crises usually require a multidisciplinary and coordinated response. Good legal advice and legal judgment is important, but companies are best served by lawyers who can collaborate effectively with their communications colleagues to deliver standardized solutions.
Joseph Santisteban Partner in Orrick’s Seattle office. His practice focuses on advising companies regarding response to privacy and cybersecurity incidents, including directing incident investigations, analyzing potential claims and defenses, examining potential notification obligations, and advising on communications strategies.