Oyle E. Driller’s rig caught fire in the Gulf of Mexico last summer, and he has been scrambling ever since. Almost too late, Oyle allowed his corporate communications department to hire the public relations firm of Frank Lee Madear and his partner Gemma Damm who specializes in crisis management-public relations. To report current information and company stories consistent with the facts as they developed, Madear and Damm had access to the same internal information and analyses as to the cause and extent of the damages as was available to Oyle’s external legal defense team. Much of the information was very sensitive and, as one might expect, reflected an evolving understanding of the cause and solution to the leaking well. Yesterday, Frank and Gemma received subpoenas for all their files on the Oyle E. Driller catastrophe. Are their files privileged from discovery by the plaintiffs’ lawyers?

No. Attorney-client privilege is the right of clients to refuse to disclose confidential communications with their lawyers, or to refuse to allow their lawyers to disclose the confidential communications. Madear was neither the client nor the lawyer. So, information provided to or created by Madear may be reviewed by the plaintiffs’ lawyers. The attorney-client privilege is the bedrock of a client’s constitutionally based right to effective assistance of counsel. Practically speaking, it plays a key role in helping clients, including companies, to act legally by permitting them to seek guidance on what the law allows and requires, and how to conform their conduct to the law. In addition, the privilege allows companies to investigate actions by its corporate officers and employees to identify shortcomings, evaluate and remedy problems, including undertaking accident investigation in anticipation of litigation. A related concept, the work product doctrine protects our adversarial justice system. The work product doctrine allows lawyers to prepare for litigation without risking that their intellectual effort, work product and mental impressions will be revealed to court adversaries, undermining their client’s legal position.

Tilting the Scales in Your Favor.

If you anticipate that a catastrophe or other crisis may end up at the courthouse, retain an outside law firm to hire all outside personnel, including your public relations firm or similar crisis management team. The crisis management team then becomes a part of the team of consulting experts, just like the accident investigation team, the well, fire and ecosystem experts, and the like. Even if your crisis communications are generated in-house, you may be well advised to consider having outside counsel manage the accident investigation for the same reasons.

More on Privileged Communications. In certain circumstances the State of Texas recognizes other communications as being privileged from disclosure in a legal proceeding. More on those next month.