January 19, 2021

Volume XI, Number 19


January 18, 2021

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The Need for Lawyers to Learn the Ground Rules of Talking to Reporters

Lawyers can get better access to all the facts and documentary evidence than non-lawyers because they enjoy the protection of the attorney-client privilege—i.e., they cannot be compelled to testify concerning their legal advice to their clients, or the knowledge they obtain in the course of being able to provide such advice, or the documents they review in determining those facts. 

By contrast, non-lawyer advisors, even those public relations firms retained by law firms to assist in litigation, do not share this protection: their documents may be subject to a “qualified” privilege, but there may be occasions when, notwithstanding that privilege, they will be forced to disclose to the opposition their written advice and strategic documents provided to lawyers that have hired them. And in any event, they will almost never be given the protection of the attorney-client privilege to avoid testifying to conversations to which they have been privy because, as non-lawyers, they cannot claim to be rendering legal advice. Indeed, if they are present while lawyers are providing such advice to clients, they may actually create a waiver of the privilege, leading to the horrifying possibility that even the lawyers and clients may be forced to testify as to what was discussed. 

Thus, lawyers need to learn how to talk to the media directly. They have access to the facts and for that reason are more credible in the eyes of many reporters. They also know the legal issues and risks involved in the litigation and won’t be as likely to make an error that could lead to a damaging public comment that prejudices the case. And most importantly, they can work with the client and other lawyers to develop a believable message, based on the facts, that can drive and command the message in the media, correct factual distortions pushed out by the other side and avoid poisoning of the jury pool.

But in order to be most effective, lawyers enjoying the benefit of the privilege must learn the basic ground rules for talking to the press. This will be a first in a series of blog posts explaining both the ground rules as well as the special vocabulary and techniques for being most effective in talking to reporters.

For now, let’s start with four voices that can be chosen and, once chosen, must be agreed to ahead of time by a reporter and/or his or her editor.

First, “on the record” means speaking with attribution, a name and identification as the lawyer in the case.

Second, “on background” must be defined ahead of time, since many people, reporters and non-reporters alike, mean different things by this expression. The best definition should be “on background—by this I mean you can use my quotation, but identify me only as a ‘spokesperson’ or ‘lawyer for’ and don’t mention my name.”

This is often confused with the third expression, “deep background,” which is why both the second and third must be defined and agreed upon by the lawyer and the reporter before proceeding. “Deep background” means “you can use my facts as long as you do not attribute them to me, or if you have to use any attribution, then you can use something anonymous like a ‘knowledgeable source’ or ‘source familiar with the situation.’ Or you can use the fact without any attribution at all and confirm the fact with others.”

Finally, there is “off the record.” Many people use that expression to mean “on background” or “on deep background.” It is highly recommended that “off the record” be followed by this statement: “You must agree that you cannot use what I say at all unless I change the ground rules and allow you to. You cannot mention the substance of what I say to anyone or that I am saying it. I am telling you this only for your own understanding and for no other purpose.”

In other words, don’t use “off the record” if you can avoid it. And if you must, use it only to explain a complicated problem that you don’t want to see in print at that moment in time. 

On the other hand, we advise that even if you decide to use “off the record” and fully trust the reporter or editor who agrees to that ground rule, always be careful since many reporters, even in good faith, might unconsciously repeat the information and not even realize they are violating the ground rule. Thus, we always assume that even an “off the record” comment might be repeated or used, so we never use this expression to communicate something that is not a fact that can be documented and proven. 

In subsequent postings, we will offer examples of the use—and misuse—of these different voices, as well as vocabulary that should be used and communication techniques that work best with reporters.

From MWE's Legal Crisis Strategies Blog: http://www.legalcrisisstrategies.com

© 2020 McDermott Will & EmeryNational Law Review, Volume , Number 76



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