What Attorneys Need to Learn to Manage the Media

SUMMARY

When media coverage is likely but not desired, the attorney is well advised to be prepared to respond to the media and even to initiate contact with them. The media are not always hostile but will print or broadcast information of interest to its audience. Since accuracy cannot always be ensured, the attorney can protect his or her interests through cooperation.


This article discusses options to handle situations where negative publicity is likely, what can happen to attorneys who ignore or are ill prepared to deal with media inquiries, and how to prepare for media interviews.

Situations can develop for attorneys where publicity--either regarding their firms or their clients--is not desired but at the same time is likely. In these situations, attorneys rarely seek out the media to provide information.

Yet there may be good reason to do so or at least to make solid preparations to respond to queries from the outside.

The experience of many law firms has proven that certain steps enable an attorney to "manage" the news insofar as possible. While total control is never possible, there are actions to be taken that will mitigate negative publicity and subsequent damages to individuals, companies, or specific situations involving legal matters.

The argument is made that the public has a right to know information that will affect them or their lives. Because of the sensitive and confidential nature of their work, attorneys particularly may encounter situations where they must advise their clients to fulfill both moral as well as legal obligations to inform the public. So while this article discusses ways to avoid publicity, it must be understood that in some situations, the public's right to know supersedes the client's right to privacy. The attorney and the client may not like it, but preparing for the inevitable is advisable.

Preparing for bad news

Most attorneys are leery of publicity regarding a specific case, particularly litigation, and rightfully so. There is good reason for "not trying the case in the newspapers" due to possible libel issues, accusations of exerting undue influence, or creating an environment inappropriate for a fair trial. But with ever-increasing demand for news and exploding channels of communication to the public, attorneys should be prepared for publicity and exposure of many more of their transactions than perhaps they would care to have made public.

In the course of a complex legal situation, most attorneys will respond with the perfunctory "no comment" when asked about details of a situation. But it is naive to think that the news media will stop their queries at this point. The media will keep asking until they find a source that will provide information. It usually behooves attorneys then, given the constraints of the law and prudence in divulging privileged information, to cooperate with the news media.

A good example for many attorneys is to watch how their own corporate clients handle publicity, particularly "bad" news or something the client would just as keep quiet. Corporations, both public and private, have long realized that their interests are best served if they cooperate with the news media and make themselves the best source of accurate and credible information. It is generally understood that once the media decide to gather information on an event and to make that information public, the media will use whatever information it has. If a corporation decides to let someone else provide the "facts" to the media, chances are that the corporation will not have its story told the way it would like.

Response options

To handle any news story, attorneys can advise their clients (or themselves if the matter is internal) to pursue one of three courses of action when faced with "bad" news. Two of these are reactive and another is proactive.

1. The first reactive mode is to do nothing, hoping the situation will not become public or, if it does, that it will pass quickly. At best, the attorneys or client will be forced to react to a situation for which they are unprepared.
   
   
2. Another reaction is to take an active defense, preparing for questions from the public and the media. This usually occurs after some information has been made public which has caused the public to have only partial information (leading to false conclusions) or incorrect information, all of which will require the attorney to explain the situation publicly. This communication may have to occur in a less than friendly environment, such as a public meeting or in a news article that gives major attention to the opposing party or critics.
   
   
3. The third option is to take the offense, becoming proactive in managing the flow of information. This is "getting out ahead" of the story to avoid a mode where the attorney or client seems defensive and reactionary.

If option 2 or 3 is selected, it behooves the attorney (or spokesperson) to rehearse anticipated situations. Just as an attorney anticipates questions in a courtroom, questions from the media can be predicted and responses prepared. Media spokesperson training is an area where training by professionals is not only possible but desirable for persons likely to be queried by the media and others.

Media cooperation

The news media are not inherently hostile. They will respond to reason and truth. If an attorney cannot comment, it is best to explain why. Attorneys can demonstrate their willingness to cooperate with the media by offering to verify facts obtained from other sources. At worst, the attorney will be described in "neutral" terms, as opposed to appearing obstructive or hostile.

In a recent situation, internal "bad" news was mishandled by a law firm in a major West Coast city involved in a very difficult situation. The news media learned of the situation and obtained statements from a variety of sources both inside and outside of the firm. Because of a lack of preplanning, the firm was embarrassed by the impression created by the media exposure which subsequently eroded client confidence. Here's what happened:

The firm's 7-member executive committee decided abruptly to terminate 14 attorneys (including 8 partners and 1 of the named partners) along with 15 staff members. The remaining attorneys said that because of an erosion of the firm's primary client base, the firm was facing a decline in work and needed to pare down.

Subsequent news stories in the business media quoted attorneys on both sides giving different reasons for the departure, severely straining client and public confidence. It also tarnished the image of both groups because the conflicting statements left neutral members of the public confused and doubtful of the "truth" from any source.

The managing partner of the surviving firm was quoted as pointing to the departures as simply a "cost-cutting measure." The departing attorneys, obviously embarrassed by being fired, expressed total surprise. They were quoted as saying that "we were not unproductive" and that the surviving firm had released "only the community servants, the public spirited, and the dissenters."

In reality, the separation was good for both groups. The departing attorneys were able to form a new firm that emphasized their unique approach to the changing insurance defense market. The remaining firm was able to stress other areas of law as it wished, in this case, environmental litigation. Both messages--positive and helpful to all concerned--were lost in the barrage of charges and countercharges among both sides.

Managing the news

So whether they are preparing for inquiries on their own business (mergers, breakups, etc.) or on their client's business (sales, acquisitions, leveraged buyouts, bankruptcies, etc.), attorneys can prepare to handle media inquiries successfully by:

• Preparing a list of anticipated questions and answers.
  
  
• Identifying a single spokesperson; if not possible, then ensuring that all parties speaking on behalf of the firm or client have a unified message.
  
  
• Making sure that all parties will not speculate or answer questions that probe "worst-case" scenarios.
  
  
• Responding to all media calls unemotionally and with courtesy and honesty.
  
  
• Emphasizing where possible the "positive" side of a situation, such as benefits to the community or to clients.
  
  
• In negative situations, releasing as many facts as possible as soon as possible. This generally shortens the medians interest in the story instead of dragging it out for a long period while "new information" comes to light.
  
  
• Avoiding the use of humor or making light of any situation the media consider serious.
  
  
• Making sure all information is shared internally as well as externally so that colleagues and staff do not read "new" news in the newspaper.