This current case is an interesting one because it brings this very issue to a head. Reyes is the former CEO of Brocade Communications Systems, who was convicted and then sentenced to 21 months in prison for backdating options a decade ago during the dot com days. His sentence was then thrown out in an appeals court because it was proven that the prosecution had knowingly made false statements during closing arguments.
Now, the case is being prosecuted again. But, this time, Reyes’ former PR firm, Sitrick & Company, is on the hot seat as prosecutors have subpoenaed client files held by the firm. These documents could provide damning information which would hurt Reyes’ case. It becomes a little confusing because Reyes now has new attorneys for this second trial. These attorneys (Cooley Godward Kronish) are claiming that the PR agency client files should be protected by the attorney client privileged code because the agency worked so closely with Reyes’ former attorneys (from Skadden Arps) during the first trial. They argue that they jointly created a responsive PR strategy and executional approach to combat the negative assault by the Justice Department. The government (prosecution) counters that Sitrick performed the sort of “standard public relations work” for which there is no attorney client privilege.Yikes. This is a very sticky issue that certainly has no black and white answer because there isn’t a real legal precedent to follow here.
We’ve dealt with topics like this over the years. To ensure that we don’t end up swimming in subpoenas and legal costs (like the agency in this trial is,) our strategy is usually straight forward if we’re about to enter into a crisis situation. Normally, we’ll be actually retained by the attorney representing the client so that our firm will be under the same privileged and confidential arrangement as the law firm is with its client. So, technically, the law firm is then our client.
Of course, it isn’t always this easy. Many times we’ve represented a client for years. And, crisis situations which involve legal matters just sprout up out of nowhere. In these cases, it’s hard and many times inefficient, to simply change official representation during these chaotic times. And often, no one really knows if our communications will lead to the type of scary situation that Sitrick & Company is now involved in.
Anyway, this is a good article to read. And, one that certainly has me thinking about how we can prepare better for issues like this that could easily arise.