The SDNY rejected a party’s claim that the attorney–client privilege and work-product doctrine protect its counsel’s communications with a public-relations firm retained to provide general public-relations advice. Bloomingburg Jewish Educ. Ctr. v. Village of Bloomingburg, 2016 WL 1069956 (SDNY Mar. 18, 2016). The well-written opinion, which you may read here, provides lawyers with a good summary of privilege law in this niche area.
Communications with Public-Relations Firm
The plaintiffs sued the Village of Bloomingburg and Town of Mamakating claiming violation of various constitutional rights. The Town Defendants’ counsel had retained West End Strategy, a public-relations firm, to facilitate “communications about the about the facts and nature of the case, and formulating the message by which municipal officials could accurately explain it to the public.”
When the plaintiffs moved to compel communications between Town Defendants’ counsel and West End, the Town Defendants claimed that the attorney–client privilege and work-product doctrine protect lawyers’ communications with public-relations firms. The court found that the Town Defendants failed to meet their burden of proving the privilege elements, rejecting counsel’s “vague and highly generalized declaration” filed in support. You may review this declaration here.
While the Town Defendants wholly failed to meet their burden, with the court labeling their position as “sweeping and rather brazen,” the court provided a nice summary of privilege law as it relates to public-relations firms.
Citing the Kovel doctrine, where the reputable Judge Friendly extended the privilege to cover discussions between a client’s lawyer and an accountant, the court found that the privilege may extend to non-lawyer service providers “when the purpose of the communication is to assist the attorney in rendering advice to the client.”
The privilege does not apply if the advice sought is that of the non-lawyer service provider; rather, the privilege applies only if the non-lawyer service provider is present to facilitate the lawyer’s legal advice. The “touchstone inquiry,” therefore, is whether communications with public-relations firms were “made in confidence for the purpose of obtaining legal advice from the lawyer.”
The privilege will not apply if the public-relations firm provides “ordinary public relations advice.” In other words, “a media campaign is not a litigation strategy.”
The court also noted that public-relations advice generally falls outside of the work-product doctrine, “even if it bears on anticipated litigation.” However, an attorney does not waive the doctrine’s protection by disclosing his work-product materials to a public-relations firm whom she hires and that maintains the material’s confidentiality.
The Town Defendants in Bloomingburg simply failed to meet even the minimal standard to show that the attorney–client privilege and work-product doctrine covered their lawyers’ communications with West End Strategy. It would have been a difficult hurdle in any event, as the Bloomingburg court highlighted how narrow the privilege and work-product doctrine are when lawyers communicate with public-relations firms.