Today's legal market demands broad business solutions

Today’s legal market demands a broad range of business solutions lawyers can provide their clients. A strategic communications plan can prove to be an extremely helpful tool law firms can provide their clients. For example, in today’s 24/7 media culture, companies lack access and lack control to the media who cover their industry and to the people that talk about them on-line.

In addition, businesses often find themselves navigating a complex environment that requires dealing simultaneously with litigation, governmental and regulatory actions, media scrutiny, and public perception. Often times, business strategy demands a multi-disciplinary approach of legal action, public relations and government relations. Knowing where these issues converge can help protect your reputation and enhance your position in the marketplace.

For example, last week, an article in the Michigan Lawyer's Weekly unveiled new court rules directing the jury not to Twitter about the case before them or turn to the Internet for information beyond that which was presented to them in the court. Social media is not only becoming some thing for us to stay in touch with friends, it is becoming a new area to look out for our clients interests and/or a new medium to promote our practice.

Also, in just seven months a number of key bills have been enacted by Congress and President Obama, including: The economic stimulus package; Expansion of SCHIP; Pentagon acquisition reforms; & other key reforms. Congress returned this week to tackle a number of difficult issues, before their August recess, including: Energy & Climate legislation; Health Care Reform; FY 2010 Appropriations; Reauthorization of the transportation bill; Financial regulation; food safety, and Immigration reform.

Attorneys in high-profile cases should extend their services beyond the courtroom and in the court of public opinion. Therefore, lawyers will need skilled advice as to how to position their clients before the media or in front of the legislature, while protecting their legal rights.

Seeking PR counsel is an important aspect of representing clients in high-profile cases. Even if the issue is a small matter, there is no way we can tell how public opinion can or will shape the outcome of a case. Therefore, in engaging PR Counsel:

• Have the lawyer retain the PR firm as opposed to your client directly, to try to preserve attorney-client privilege;
• The PR counsel should consult with the client, only in the presence of an attorney and first talk things over with the attorney to seek their support and buy-in for the PR strategy.

Once a PR firm is engaged, they will (depending on the strategy):

• Asses the situation, review any media to date;

• Create key messages;

• Create talking points for key audiences including, staff, vendors, clients and the media;

• Using the key messages, educate and sensitize the media to mitigate damage or control the story;

• Facilitate interviews; and,

• Provide media/spokesperson training.

“An attorney’s duties do not begin inside the courtroom door. He or she cannot ignore the practical implications of a legal proceeding for the client." See Gentile v State bar of Nevada (Kennedy opinion) 510 US 1030, 1043 (1991). Just as an attorney may recommend a plea bargain or civil settlement to avoid the adverse consequences of a possible loss after trial, so too an attorney may take reasonable steps to defend a client’s reputation…in the court of public opinion

In today’s fast-paced environment, where it may take years to build up one’s reputation and only seconds to destroy it, a lawyers role as advocate extends to managing their clients’ reputations inside and out of the courtroom.

Juries all a-Twitter

This week, Michigan Lawyers Weekly features a story about jurors tainting themselves by Tweeting from the jury box or accessing the Internet from their mobile phones to learn more about the cases they are presiding on. See Juries all a-Twitter, 23 Mich.L.W.847, July 6, 2009. 

Like the media, the courts need to adjust to the constantly changing landscape of how we communicate and how we access information.  The Internet and mobile devices such as the iPhone or Palm provide jurors and others access to instant information about the cases before them. The Michigan Supreme Court amended rule 2.516 of the Michigan Court Rules to prohibit the use of computers, cell phones or other electronic devices during the trial to obtain information on the case. This is mandatory, not discretionary. The rule was amended in response to a number of cases being thrown out due to curious jurors, researching defendants and witnesses and then Tweeting their opinion before any opinion was rendered. 

Social media sites, such as Facebook, Linkedin, MySpace and YouTube also provide excellent opportunities for plaintiff's counsel to mine the Internet for information to throw out a case or force a settlement. Mined appropriately and thoroughly, attorney's can learn a lot about the parties to a lawsuit or potential lawsuit. 

And finally, some lawyers are using the Internet, the same way they were using television to argue their client's case in the public eye.  Instead of turning to investigative reporters or "problem solvers," they are now turning to the Internet to bolster their client's position. 

In the article, I caution attorneys to do their own due diligence and see what is being said about their clients on-line.  This includes social media sites such as Twitter, You Tube, Flickr, various blogs and other on-line feeds and sites. The same is true for the opposing party, including opposing counsel. 

Attorneys may want to consider retaining PR counselto monitor the Internet and/or use the Internet and social media to preserve, protect and enhance their clients reputation on-line. Attorneys may also want to consider hiring a computer forensics or e-discovery firm to see what information they can find on-line.  For now, attorneys can set up Google alerts, RSS Feeds, or find other ways to monitor the media.  

Regardless, we all need to do a better job of monitoring the Internet. Just as we should secure our credit report every six-months to monitor for identity theft, we should periodically Google or Bing our name, our company name, client's name or other key terms we should be keeping an eye out for.