Challenges in Counseling Clients

Keeping the client informed of developments in a case is crucial to the client and to the attorney. I send to the client copies of nearly every piece of correspondence and every paper filed with the court . Clients do not like to be surprised by bad news about a lawsuit. If I see a problem early in a case, I explain to my client how it may play out, if I am not certain; and how it will play out, if I know. For example, I have represented clients in criminal antitrust investigations in which senior management professed absolute confidence that there was not a problem. During interviews of employees , I learned that at least one employee, and possibly more, had serious exposure to indictment. Or, I received a telephone call from an attorney who represented another subject of the investigation and was advised that he must withdraw from our joint defense group . The unspoken message was clear: his client had made a deal with the prosecutor to testify against coconspirators, at least one of whom was employed by my client.

I did not keep this bad news to myself . I immediately requested a meeting with appropriate representatives of the client and advised them that I knew what we should do, and why we should do it. When the information caused me to conclude that (a) indictment of an employee or the client was imminent, and/or (b) a senior level executive had participated in criminal activity, I requested a meeting with the Board of Directors.

During a criminal investigation, I meet regularly with "need to know" executives to give them progress reports. My reports are not inevitably pessimistic, and I am careful not to reveal more information than they should know. But when an adverse development has occurred, or when I foresee that an adverse development will likely occur, I inform the people who have need to know that information.

A major problem in many huge cases that have received much publicity recently is that lawyers failed to remember that their client was the corporation, not the executives, who often participated in creating the problem. When senior executives are the problem, the lawyer must bypass them and report directly to the Board. Obtaining access to the Board can be very difficult, but the Board has the responsibility of dealing with the problem, including terminating or suspending senior executives.

Keeping open lines of communication with the client is the best way that I know to avoid problems with the client. In a highly publicized case, a lawyer faces the added burden of attempting to manage information released by the public relations department. The tell 'em nothing, and tell 'em slow attitude toward information management can be disastrous in today's environment. Many people, and particularly media representatives, interpret "no comment" as an admission of guilt. A "no comment" response to a newspaper reporter can be more devastating to a corporation's credibility, sales and stock price than a statement of sympathy for victims or a qualified acceptance of responsibility.

Depending on the circumstances of a particular case, it may be necessary to have a corporate officer serve as a spokesperson for the corporation in order to provide a "human face" to the public. Selecting the right spokesperson can be perilous for the company and for the individual selected. The individual who makes public announcements or press releases should be someone who is not exposed to prosecution or to civil liability. Any public statement must be verifiably true. Public announcements must be drafted so that they are neither overly optimistic nor overly pessimistic to minimize their effect on the stock price.

Information management during a crisis has become a specialty for some lawyers who practice in the antitrust arena. Lawyers frequently disagree about public relations strategies. Adverse consequences of bad publicity sometimes cannot be avoided, but they sometimes can be alleviated by maintaining open lines of communication with the client and by keeping the client informed.