Court Orders Production of “Judicial Hellhole” Public Relations ProposalBy Renee Choy Ohlendorf, Litigation News Associate Editor – June 28, 2011
Attorneys working with public relations consultants on trial publicity beware: The public relations firm’s reports may be fair game for discovery. An Illinois trial court recently ruled [PDF] that no privilege applied to shield a public relations consultant’s proposal from discovery, even when it was made to a defendant in pending litigation.
Holiday Shores Sanitary District, a public water provider in Madison County, Illinois, filed a class action lawsuit against Syngenta. The plaintiffs allege that Syngenta’s herbicide atrazine contaminated public water supplies through run-off from farm fields. Holiday Shores Sanitary District v. Syngenta Crop Protection, Inc.
Syngenta retained a public relations firm and entered into a confidentiality agreement with the firm to “assist Syngenta in developing a public relations proposal relating to the lawsuit.” The public relations firm prepared a detailed proposal to mount a negative publicity campaign against the county judiciary. The proposal allegedly recommended characterizing the Madison County judicial system as a “‘judicial hellhole’ and a source of ‘jackpot justice.’” It also suggested using themes like “[n]ow Madison County is going after the family farmers” and “[a]nother Madison County class action case going amuck.”
Syngenta withheld the document from discovery “on the basis of the litigation consultant privilege.” The trial court ordered Syngenta to produce the proposal. The court ruled that the public relations firm’s actions were not “litigation support,” but “pertain[ed] to business decisions.” The proposal “has nothing to do with trial strategy or the preparation of this case for trial . . . but much to do with fostering a negative public perception of our judicial system,” the court concluded.
No Real Basis for Privilege Claim
Privilege does not necessarily attach simply because a media consultant is retained to make proposals about pending litigation. “Privilege would not apply at all between the media consultant and the client. If you had a media consultant talking to the client and saying, here’s what you should say or shouldn’t say, nobody would claim that’s privileged,” explains Edna Selan Epstein, Chicago, a member of the ABA Section of Litigation’s Book Publishing Board and author of The Attorney-Client Privilege and the Work-Product Doctrine, 5th Edition. “You don’t create the privilege by introducing a lawyer into the equation. It’s got to be [about] the litigation, not the fallout of the litigation,” she adds.
Is It Ethical to Employ a “Smear the Court” Public Relations Strategy?
The court did not address the possible ethical issues raised by engaging in a negative media campaign against the judicial system. “If you’re involved in litigation, you have to be careful about statements that are going to be disseminated and are going to have a substantial likelihood of prejudicing a judicial proceeding,” says John C. Martin, Chicago, cochair of the Section of Litigation’s Ethics and Professionalism Committee. He points out that a negative campaign against the judiciary potentially implicates ABA Model Rules of Professional Conduct 3.5(d) and 3.6(a).
Those rules prohibit attorneys from engaging in conduct intended to disrupt a tribunal, or that would pose a substantial and imminent threat to the fairness of an adjudicative proceeding. “There’s a question that’s raised about whether someone, and maybe not the lawyer, was intending to put pressure on the tribunal, to disrupt the proceedings a little bit,” states Martin.
He also notes that such a campaign possibly violates Rule 8.2(a), which bars attorneys from making false statements regarding the qualifications or integrity of a judge. This rule could apply even if the statement was an opinion on the court system and not one of fact about a specific judge. “Many courts take a broader view of 8.2(a) than the drafters of 8.2(a). It is actually enforced to apply to anything that seems to impugn the judiciary, whether or not it could be deemed true or false,” observes Martin.
Tips for Working with Public Relations Consultants
When working with public relations consultants, attorneys need to be aware of the risks. “It is critical for the litigator to be involved in this process from the start and to use caution about the information being shared with the public relations company,” says Robert L. Rothman, Atlanta, former chair of the Section and author of Lawyers and Reporters: Understanding and Working with the Media. Litigators should counsel their clients “about the risk of disclosing confidential information to the public relations company as well as the risk of a public relations campaign that could undermine the company’s position at trial,” he adds.
“Many jurisdictions have rules restricting public comment about a pending case by the parties or counsel where those comments could interfere in the court’s ability to conduct a fair trial,” says Rothman. He urges lawyers to become familiar with these rules, and notes, “[c]ounsel needs to be sensitive to those limitations, especially in high-profile cases likely to attract media attention.”
Keywords: litigation, judicial hellhole, public relations, privilege, ethics
- » Holiday Shores Sanitary District v. Syngenta Crop Protection, Inc., No. 04-L-710, Third Judicial Circuit, Madison County, Illinois (Apr. 20, 2011).
- » ABA Model Rule of Professional Conduct 3.5(d).
- » ABA Model Rule of Professional Conduct 3.6(a).
- » ABA Model Rule of Professional Conduct 8.2(a).
- July 13, 2011 – How is the PR campaign relevant to the allegations in the case? Has the appearance of a court dishing out some payback.