Guest Column

Take a breath: legal considerations for your communications

August 16, 2019
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It’s a story we see play out all too often on the evening news: An organization or one of its employees is hit with a search warrant, subpoena or a civil lawsuit. Before the receptionist, communications director or CEO can turn around, a microphone and camera are shoved in their face and they are asked for a comment, explanation or interview.

So, they provide one, and that is often the beginning of a cascade of errors that can make a potentially bad situation even worse.

When an organization or one of its employees faces a criminal investigation or a civil lawsuit, everything changes when it comes to communication — or it should. Our first instinct is often to defend our organization or our team member. Doing what might seem like the “right thing” to do or say can often be the exact wrong thing, exposing an organization, employer or employee to potentially greater harm.

So, take a breath. Before you say or do anything that becomes part of the public record, take a moment. While it might feel like an eternity when the media are waiting in your lobby, you’ll be thankful you did.

Four steps toward your end game

If you find yourself in one of the above situations, the first thing you should do is call your attorney. If your attorney isn’t versed in criminal or litigation matters, ask him or her for a referral and find someone who is and can join you immediately.

Don’t speak to anyone before your attorney arrives. Especially in the case of a search warrant, it’s critical to wait until you have professional help on the scene.

The second thing you should do is recognize you cannot control the process. Once the search warrant is executed, the subpoena delivered or the lawsuit filed, you’ve already lost control of the process, and that can be an extremely uncomfortable realization.

Resist the urge to put out a tweet, statement or press release immediately. Chances are you don’t have all the information you need and whatever you say will not be enough to carry the day or change the narrative. If you start making statements that turn out to be false or misleading when additional facts come to light, you’ll likely spend the rest of the investigation or lawsuit trying to walk back that initial communication.

If the stakes are bet-the-farm high, the third thing you should do is engage a crisis communications firm that will work in tandem with your legal counsel. The benefit of having both legal and communications professionals from outside your organization is that they will have an unbiased opinion about the particular issue at hand. They also will have been in the trenches many times before and can give you learned counsel about what is likely to happen next based on similar situations with past clients. 

The fourth thing you should do is to decide on your end game. What do you hope to get out of the situation? Is the most important thing to avoid criminal charges? Or is it to avoid large civil or regulatory penalties? Or is the most important end goal to try and simply survive the public relations war? Working together with your leadership team and board of directors, your attorney and crisis counselor can help you craft a strategy that will allow you to move confidently in the direction of your end goal.

These decisions will inform your communication strategy. You’ll want to start by defining and ranking your stakeholders in terms of significance. Are they employees, shareholders, customers, regulators or others? What’s the best way to reach them? What can and should you say to them without jeopardizing your legal strategy?

There are a lot of decisions — business, legal and communication — that need to be made and then revisited as your case goes on. Do listen to your counselors — even if you may be getting pummeled by social or traditional media in the short term.

Recognize you can’t stop the herd from creating a hashtag or capitalizing on a moment, but you may be able to ride that moment out if you approach the situation with intelligent, informed advice that has your organization’s long-term goals at heart.

Madelaine C. Lane is a partner at Warner Norcross + Judd LLP and a trial attorney who concentrates her practices in white collar criminal defense. She will be leading a webinar on this topic Sept. 11. You can reach her at mlane@wnj.com.

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