Counsel handling cases involving newsworthy facts and litigation often hire public relations (“PR”) consultants. In Nicholas Behunin v. The Superior Court of Los Angeles County, 2017 DJDAR 2405 (No. B272225 March 14, 2017) the California Court of Appeal, Second District, denied a petition for writ of mandate concerning a trial court discovery order holding that communications between a plaintiff’s attorney and a public relations firm counsel hired for the purpose of creating a website for the Plaintiff were discoverable, despite claims that such communications were protected from disclosure by attorney-client privilege.

Plaintiff sued Defendants — (the) Charles Schwab and his son Michael Schwab — over an unsuccessful real estate investment. Plaintiff’s attorneys hired a public relations consultant to create a website (www.chuck-you.com) that sought to link the Schwabs with the late Indonesian dictator Suharto’s family. The court succinctly described the web site as “a social media campaign to induce the Schwabs to settle the case.”

Defendants sought discovery of communications between Plaintiff’s counsel and the public relations consultant who developed the website. The trial court’s discovery referee was underwhelmed by Plaintiff’s claims and evidence that the PR consultant actively participated in developing and employing a strategy in connection with the litigation, as opposed to merely creating the website. The referee reviewed disputed documents in camera and then recommended that they be ordered produced. The trial court followed the referee’s recommendation that the disputed documents were not subject to attorney-client privilege or attorney work-product privileges and ordered production.

In denying Plaintiff’s writ petition, the Court of Appeal noted that no California cases had analyzed whether a communication to a PR consultant is confidential and whether such third party communications are considered protected by the attorney-client privilege. The court recognized at the outset that in “some circumstances the attorney-client privilege may extend to communications with a public relations consultant,” but found that in this case, Plaintiff had not adequately demonstrated that the communications with the consultant were “reasonably necessary for [the attorney’s] representation of [Plaintiff] in his lawsuit against the Schwabs.” The court extensively briefed the law of attorney-client privilege, including a review of conflicting cases nationally. The court observed that the involvement of a third party such as the PR consultant flipped the traditional burden of proof, requiring that the party seeking to block production establish that the communications were “reasonably necessary to achieve the ends for which the lawyer is being consulted.” The court also noted that no presumption of confidentiality exists in favor of the objecting party once a third party is involved. The court emphasized the lack of evidence before the trial court demonstrating that the communications with the PR consultant “assisted the attorney in developing a plan for resolving the litigation” or were reasonably necessary to accomplish counsel’s purpose in the representation. The court also remarked on the Plaintiff’s lack of legal argument or authority concerning possible protection of the documents as privileged attorney work-product.

The Behunin opinion may have ramifications for attorneys working with outside consultants during litigation. First, undertaking a litigation-related media campaign, whether initiated by the attorney or the client, invites this type of discovery because it suggests a consultation with a third party. This type of discovery will increasingly be sought in such circumstances as a result of this decision. Outside the realm of public media, a “non-legal” consultant’s input and eventual work-product and advice would not normally be obvious enough to generate this kind of attention.

Second, it is apparent that any written or oral communications with a public relations professional should be considered at least potentially discoverable and be worded with discretion and an awareness of the potential for disclosure in discovery, and/or possible use at trial. There is a difference between “Help us get the word out on this…” and “How do you suggest we spin this?” Consider the impact of a discovered communication being projected in front of a jury during trial. Damage control after such a discovery disclosure might include the client substituting other counsel into the case.

Finally, particularly in situations involving publications and social media communications, counsel consulting a public relations professional should recognize that the burden will be on the retaining attorney to demonstrate the consultant’s active role in determining and implementing strategy with demonstrable connection to the nature and purpose of the attorney’s retention. The engagement agreement with such a consultant should make this very clear, as should all subsequent communications between the consultant and the attorney.

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