Lawyers and PR - an historic antithesis is starting to thaw

Published 2004

PR and legal are starting to get over a long-standing antithesis towards each other - increasingly realising that they need to work together for the benefit of the Executive Suite.

What’s behind this antithesis, what’s happening to break down the barriers and how should the two disciplines work better together?

1. Legal and PR come from different mindsets.

Part of the reason for past problems is that the legal role is usually to protect a position while the PR role is often (but not always) to advance a position.  This means each is coming from a different perspective. 

2. The Court of Law is very different from the Court of Public Opinion.

      The environment in which each works is very different.

Court Of Law	Court of Public Opinion
Is steeped in procedures with principles for   regulated argument and the right of reply, all based on providing an opportunity for a fair hearing.	There are no rules of engagement, a limited need to identify relevant facts, issues and evidence, no need to provide balance and no inherent right of reply.
Is based around a process that requires identification of facts, issues and evidence leading to debate and argument regarding them - all taking place under clear rules of engagement, and where necessary, at a nominated time and in a particular location.	There is no rigorous process that can be followed to ensure that only relevant, credible, true and properly particularised facts and considerations are established*. There is no specified time, period or location for debate - the organisation will find itself at the call of the media. The pattern of media coverage tends to involve waves, chapters or episodes of enquiry until the topic is no longer seen as "newsworthy".
In the confines of a court room, the    "dialogue" is two-dimensional and usually dominated by words (not photos, video, graphics, computer animations, music soundtracks and the like).	Everyone can have a say and in a variety of ways - the "dialogue" can be multi-dimensional involving the parties, their advisers, journalists, commentators, experts or the general public in vox pop sessions in several formats, in several media, time, geographic, and cultural zones and legal jurisdictions and even involving ridicule, humour, and satire.
The issue is dissected through a mountain of words in legal documents and courtroom examination of witnesses, over a specified and concentrated period. Particular care is taken to ensure the ‘arguments’ are fully detailed.	There is a greater demand for brevity in commentary, the full story rarely appears in one document/article potentially making the commentary potentially misleading.
Relies on appointed decision makers (eg a judge, commissioner or jury) making a considered decision which is then conveyed to audiences, typically in writing, as the outcome, result or finding.	The media acts as prosecutor, judge and jury.
The results are usually clearly stated - and there is a defined winner and loser.	The reader, viewer or listener is usually (but not always) left to draw their own conclusions.

* Complaints can be made to the Australian Broadcasting Authority, Australian Press Council, Australian Journalists Association, the ABC's Media Watch program and others - but their codes, sanctions, procedures and history of action are in a different league to the massive body of regulations which apply to the legal profession.

3. The approach of legal and PR people can be very different.

In the event of a controversy or crisis it is not uncommon for legal counsel to argue to the Executive Suite:

• not to be available for comment to the media.
• not to comment publicly on an issue - eg to reserve the right to "privately" argue the case in court or before a government regulatory authority.
• not to make any admission of fault or error in case that prejudices the organisation’s  position.
• if comment is to be made to the media, to take the time to marshal the legally correct or legally unexposed arguments, and present them in a legalistic form.

      Conversely, it is not uncommon for PR advice to:

• make someone available to the media for comment.
• if the organisation is at fault, openly admit it.
• respond as quickly as possible taking into account media deadlines in a very simple and direct form free of qualifications.

4. There’s been a battle of influence in the Executive Suite.

Traditionally legal held the sway in the Executive Suite - and naturally enough they were reluctant to let go.  But these days PR is getting a more equal role as organisations realise the importance and power of perception.  Today in most major corporations legal and PR/ reputation considerations are given more equal credence.

5. There are changes to the landscape and the way lawyers and PR people interact.

• The experience of companies in crises has demonstrated that there are many occasions when a PR - rather than a legal - approach is appropriate.  In Australia, Shell’s quick admission to a fuel spill in Sydney Harbour some years back was a classic example of how the PR approach can quickly defuse a situation. Lawyers have been quick to see, and acknowledge, this.
• The expansion of media channels and 24/7 reporting which has elevated the importance, relevance and power of media has led lawyers to appreciate that the days of the historic ‘no comment’ approach are numbered.
• Commercial court proceedings and other public hearings are becoming much more newsworthy.  Cases such as One Tel, and the problems surrounding James Hardie Industries NV are putting lawyers much more in the spotlight and they are beginning to better appreciate the role of the media and the need to interact with it.
• Some lawyers in the commercial and criminal law arenas are now much more aggressive and skilled and use the media to pursue their clients' interests.
• Lawyers faced by the increasing complexity and challenge of law and litigation sometimes seek the additional fire power and resources of government bodies.  PR can help widen the number of attackers or defenders for a cause, for example joining to actions politicians, community organisations and the ACCC, ASIC or other public sector bodies.  Quality PR work can encourage the involvement of such bodies or soften the behaviour of the other side.  PR gets the message out to places and in ways that court reporting may not.
• Lawyers and PR people increasingly find themselves working together - and familiarity breaks down barriers, opens lines of communication, leads to respect for each other and ultimately improved outcomes for the Executive Suite and the organisations they lead.

6. However, while PR has more respect from the legal side they still need to be conscious of legal considerations.

• While the needs of the media and public are important, organisations still face legal considerations and PR people must always be aware of these, and take them into account.
• When there is a need to respond quickly the PR person who chooses to ignore a legal perspective does so at their peril.  In fact in the event that a company is legally challenged a PR executive, or external consultant, could find themselves in the hot seat. NSW Premier Bob Carr’s situation with the Independent Commission Against Corruption is a recent example of why caution is appropriate.  Mr Carr said that evidence before the Commission had vindicated one of his ministers who was facing a Commission inquiry.  Ultimately his statement was found to not be sub judice contempt, a legal principal which prohibits the publication of material which might prejudice civil or criminal proceedings whilst they are pending.
• PR people need to understand, for each project they are working on, the legal processes and steps and how this inter-relates with their stakeholders' communication.

Some PR, even when it is perfectly legal, is clearly out of place in the eyes of people in the legal profession.  This is especially so if the participants in a dispute, or their lawyers, are quoted in the media taking positions which lack candour, discretion or restraint. 

Back in 2002 in the last weeks of the lengthy and multi-billion dollar legal action by Idoport Pty Ltd against National Australia Bank, it probably did not help Idoport for its principal to be quoted in a feature article in the Australian Financial Review criticising the legal system at length, and in personal and matter-specific terms, all while Idoport's case was pending.  In contrast a much earlier Business Review Weekly cover story on the court case arguably served the cause of Idoport by presenting it as a David and Goliath story.

At the end of the day legal and PR are increasingly being thrown together - from Initial Public Offerings (IPOs), to crisis and product recalls, to obtaining consents for building and development projects the two disciplines are having to work more closely together. 

The ideal is if legal and PR are able to share a common goal and objective and develop a plan that sees this pursued through each discipline so that both the Court of Public Opinion and the Court of Law requirements are being met.   The tips accompanying this article are designed to familiarise executives and PR people with legal considerations relevant to their PR work and decisions. They help the full team work more effectively for common objectives.