Legal Pitfalls Relating to Public Relations & Online Media and how it affects all Practitioners. Benjamin Brafman, Esq.

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1 Legal Pitfalls Relating to Public Relations & Online Media and how it affects all Practitioners Benjamin Brafman, Esq.

2 Introduction: Legal & Ethical Issues Regardless of whether you are dealing with high profile litigation or ordinary litigation, there are public relations issues that affect you. You must deal with the public perception of what's happening to the person or company you represent. Not just celebrity clients Even non celebrity clients

3 Public Issues If your client is a recognized name or large company everything you say is a matter of public record. Statements made may affect the share price - you can destroy a company with reckless statements Very important that all statements made are cleared with Corporate Counsel and/or Sec Counsel People have been prosecuted when they issue a press release on behalf of a company if it was misleading or deceptive

4 What about a private individual - what PR issues come up in that context? One example: If you're dealing with a matrimonial case, everything that's said by either side unless its under seal can impact on the children of the marriage - extended family.

5 What are some of the ethical issues? Every state has its own rules with respect to what can be said about pending litigation. Many judges interpret them differently Understand who the referee is in the playing field - know the judges - counsel should adhere to the judges instructions.

6 In a high profile case, obviously its very difficult to balance In situations where there are 100 reporters waiting outside looking for sound bites you have to be extremely careful about what you say its not prudent to ignore them but you must be careful - its a fine line. Some attorneys will say - "I don't deal with these cases"

7 There are 2 types of High profile cases The client is so famous that the media pay particular attention to what's going on - Lindsay Lohan; Plaxico Burress, Etc. If the crime itself is particularly interesting Nowadays every terrorism case, child abuse, sex abuse - is a hot button issue

8 Continuation All attorneys are on notice you could be quoted on the front page of a daily in your jurisdiction; not because you're a celebrity lawyer or the person you represent is a celebrity rather the issue is a hot button topic and the media isn't necessarily your friend. You have to be very careful about what you say Statements made to the press aren't protected as statements said on the record - you may be sued for defamation, you may be sanctioned - you may say something that is privileged - be very careful

9 Ethical issues when defending a company Remember who you represent. If the company is a target you may have a conflict - sort it out early on - you may need separate counsel Investigate certain matters when you come into a case - how you can try and preserve attorney client privilege

10 Kovel Case An accountant was retained by a lawyer for the purpose of doing an evaluation. The lawyer extended the privilege to accountant only if the accountant was an agent of the lawyer. So if you need a forensic accountant, recognize that if the company accountant does it - it won't be privileged and in fact he may end up as a witness You may retain an accountant and he will be considered an agent of the attorney - protected work product Same with private investigation or PR consultant; however this does not always apply

11 Remember the big picture Always keep your eye on the target, if you're having a horrible press day but you win the case - no one will care; if you lose the case but are having a great press day - it doesn't matter.

12 BP scenario Everyday it gets worse and worse - what they say publicly is not consistent with what's actually taking place. Some statements which have been said may turn out to be untrue BP is in an impossible situation If BP said nothing they would be better off This is an example of a public company which has ethical obligations - officers of the company testifying to congress; everything said could come back to haunt them. There's a tension between having to say something - and not saying too much

13 Electronic Communication This issue has become more relevant with modern day instant electronic communication. People communicate these days over the same way they would via phone. The problem is conversations that were said innocuously and a statement made to set off steam can be brought up 6 years later. It's worse than even a recorded tape because at least a recording can convey the tonality - with there isn't anything - it's just words - no tenor.

14 You need to be extra careful If any statement made by a BP exec was said in front of Congress conflicts with an - it could come back and bite them - even if the was written with a different intention Recent major tax shelter case - the accountants were kidding each other via including how the IRS wouldn't unravel their scheme. The prosecution s case relied heavily on those correspondence etc.

15 Continued In every major litigation today product liability, drug cases etc (Toyota) these s and/or memos may incriminate someone; someone may have expressed concern and management ignored it because it wasn't cost effective to address - and then ultimately when the crisis happens - you're in trouble So there are ethical issues and PR issues

16 Drafting in these cases Everything filed in court is obviously public. Though you need to be very careful about disclosing certain things Disclosure issues - there are rules of engagement. Many young lawyers don't realize the ramifications there might be of disclosing information - Careers have been ruined when facts were disclosed at a party because an attorney wanted to show off.if you work in securities, being fired isn't your biggest problem; you could be indicted by SEC!

17 Damage Control In the Plaxico Burress case the facts were not in dispute - everything said publicly by myself was for the purpose of getting sympathy - that s a case where the media and politics affected the case before you could even try and defend it. So not every case do you win - sometimes its damage control There are times that you have to advise a person, a group - that defending a case or bringing a case is not in the best interest of the client. This could present a financial conflict since trying the case would bring a significant trial fee - it may be months or years of work you have to give up - If its in the best interest to throw in the towel it may make sense to take a hit and not lose the company or your life. Sometimes attempting to defend it is itself the disaster

18 Damage control doesn't only affect big clients In a matrimonial case - sometimes you will have stubborn/bitter spouses - they lose perspective - but sometimes these cases are fueled by the attorneys who are representing Sometimes its in the best interest to just resolve the matter When you do have a situation where you feel it should be settled and the client disagrees - make sure you keep a record of everything - clients have short memories - if you don't keep a record it could come back and bite you

19 Public Image People create their own public image these days through Facebook, Twitter, LinkedIn - be careful; what you post may affect you and your company. Almost all sexual harassment claims have comments that someone may have made in jest. These comments and picturesdon't get erased - it could come back and hurt you or your client

20 Lawyers have to be extra careful about these issues Statements made can lead to sanctions, conflicts, etc. People post private thoughts about their spouses, coworkers, people they've dated - then the marriage dissolves or the relationship ends - ultimately in a divorce preceding the fitness of a parent might arise as an issue Is the person fit to continue working at the company can be determined by a web post

21 Continued It's a very hard way to live and watch everything you say - but keep in mind, in today's day and age of electronics, nothing disappears. In the past, people spoke to each other without fear of various comments haunting them back - unless it was being taped. You couldn't recollect exactly what was said. Comments you make or post online will never go away - and with a tape you at least can relay a tone - you can say it's clear that I was kidding - but with a blackberry or website post - it's in black and white without tonality!

22 Continued As a private citizen if you make a statement which is embarrassing it's just embarrassing- but as a lawyer it can reflect adversely on the bar. Many times people that are sanctioned - it's because their conduct reflects poorly. Not because they stole money - very often the grievance committee will say the manner in which you conducted yourself was the issue. Keep in mind that you have a higher level of scrutiny Today more than ever before - it's so important for a young lawyer to be careful!

23 Contact Information Benjamin Brafman,Esq. Brafman & Associates, P.C. 767 Third Ave., 26 th Floor New York, NY (212)

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