When to Rely on PR Strategy: How Far is Too Far?

Posted: August 22, 2018

Retaining Attorney-Client Privileges

Under certain circumstances, a public relations firm’s services become integral to the litigation process, securing attorney-client privileges between lawyers, clients, and the PR firm itself. But privileges aren’t always guaranteed between clients, lawyers, and third parties unless communication between these three groups remains confidential and is deemed reasonably necessary for accomplishing a client’s case.

Information disclosed by third parties will not be considered privileged if it’s used solely to tarnish or slander opposing parties. Instead, the third party must act to move a litigant’s case forward, providing relevant counsel to lawyers and their clients. The case of Nicholas Behunin vs. Charles Schwab provides insight into this process, reminding litigators that information from third parties must be used appropriately in order to not see attorney-client privileges revoked.

A Consideration of the Rules

California Legislative codes define the parameters for the use of third-party counsel in litigation. According to section 952 of Article 3, Lawyer-Client Privilege, information considered confidential between client and lawyer cannot be disclosed to third parties unless they act in the interest of the client in consultation or provide necessary information to move the case forward. During this process, the acting lawyer is consulted by the third party to better form legal opinions and offer advice for the client.
Section 912(d) of Chapter 3, General Provisions Relating to Privileges, lists examples of third-party information that is reasonably necessary and cannot be waived of privileges. Information confidently disclosed between a lawyer and physicians, psychotherapists, sexual assault counselors, domestic violence counselors, and human trafficking caseworkers remains confidential between a client, lawyer, and the specific third party. The information they impart to the lawyer will not only be sensitive but necessary for moving the client’s case forward.

Both instances of communication to a third party remain confidential because the information exchanged is necessary for satisfying the purpose for which the lawyer was initially contacted. In the case of Nicolas Behunin vs. Charles Schwab, Behunin failed to prove information provided to the third party was necessary for the support of his original claim.

Where Behunin Failed

After entering into a business dispute with Charles Schwab, Nicolas Behunin hired attorneys Leanard Steiner and Steiner & Libo to represent his case. Steiner then hired a public relations consultant, Levick Strategic Communications, to slander the banking corporation and pressure them to settle. To force the opposing party into settling, Levick Strategic Communications created a website claiming the Schwabs had connections with the Indonesian dictator Suharto.

pr consultant designing a websiteIn response, the Schwabs sued Behunin and Steiner for libel, slander, and invasion of privacy, and they sought information about Behunin and Steiner’s relationship with the PR firm responsible for the creation of the website. Behunin and Steiner objected, claiming the information they shared with Levick remained confidential under attorney-client privileges. Steiner claimed the information shared between them was used to execute legal strategies for Behunin’s case, but the court failed to see this information as necessary in moving litigation forward and ultimately waived privileges.

Behunin, Steiner, and Levick extended privileges too far, believing a slanderous campaign was necessary for the success of their case. They failed to provide evidence that their media strategies were necessary for litigation and relevant to the client’s original claim. The courts ultimately held Levick’s counsel was not necessary for Behunin to receive informed legal advice but was instead seen as useful and convenient in their fight against Schwab. In fact, Behunin later claimed Steiner was a liaison to hire Levick, further undermining their credibility.

Levick’s counsel was not necessary for assisting Steiner to better represent Behunin, waiving privileges between the three parties. The communications firm didn’t better position the lawsuit to come to a favorable settlement, nor was the case a ‘media’ case that could benefit from a communications firm to receive balanced coverage. Levick was not used for legal advice but for the making of a slanderous media campaign – and this doesn’t constitute the makings of confidential privileges as they relate to privilege rules outlined by California legislature.

Litigators will ultimately want to keep a close eye on all matters of communication and be careful not to assume privileges automatically exists between a client and third parties. If third parties don’t provide the necessary information and legal advice for the client’s case, that information will not remain privileged and may come under scrutiny by court officials and opposing parties.