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When Disaster Strikes, Counsel and Communicators Must Work Together
By Samantha Drake
Natural disasters, like Hurricane Katrina, or a major accident, such as the Gulf of Mexico oil spill, present special challenges for an organization. Such crises can quickly become a public relations nightmare and lead to new or additional legal woes if not handled properly. Even a crisis on a relatively smaller scale, such as a product recall or defamation lawsuit, can spiral out of control.
No matter what the scale, a crisis tests an organization’s ability to protect itself from litigation while preserving its reputation. As a result, an inherent but “healthy” tension often arises between the organization’s legal and communications experts, notes Steve Rosen, managing partner and president, public relations, of the Star Group. Counsel’s goal is to minimize risk as much as possible, while public relations people strive to be transparent and disclose as much information as possible to constituencies, he says.
“Something that can make sense from a brand and image standpoint can actually not make sense from a business standpoint, and that’s where the conflict comes from,” Rosen explains.
Robert C. Clothier, a partner at Fox Rothschild agrees. “The tension as I see it is that the lawyer will be risk averse and will be inclined to advise the client not to say anything for fear that anything they said could get them into worse trouble. Whereas the PR firms are going to want to get the company’s side out,” he says. “From a PR perspective a ‘no comment’ is an assertion of the 5th Amendment.”
The attorney’s responsibility is to vet the organization’s message “and defend that message while not taking undue risks,” says Clothier. “I always tell clients my job is not to tell you that you can’t say something; my job is to understand what you want to say and help you say it in a manner that is as least risky as possible.”
But PR people are usually very cooperative when it comes to communicating about legal issues. “The last thing a PR person wants to do is craft a statement that gets the company into more trouble,” Clothier says.
By working together, communications and legal experts can prevent outsiders from hijacking and reframing the organization’s message.
While the issues involved may be straightforward from a legal standpoint, communications experts are adept at managing public perception—which is a crucial part of crisis control. One of the challenges with the Gulf of Mexico oil spill was that, regardless of whether or not BP was responsible for all aspects of the accident, Rosen says, “somehow the public seems to overwhelmingly believe that BP is responsible for everything and should take responsibility for every aspect.” Public perception is critical and has to be “managed and owned,” Rosen explains.
The Toyota recall that began in 2009 over sudden acceleration in certain vehicles is an example of poor management of public perception. From the beginning, Toyota did not acknowledge the issues or the extent of the problem and the story quickly slipped out of the company’s control, says Clothier.
Rosen adds that Toyota was sharply criticized for conducting the recalls sequentially instead of all at once, and didn’t provide a clear explanation about why. In short, regardless of the cause of the problems, the media perceived that Toyota did not want to take responsibility for the reasons behind the recall, he says.
Collaborating with the public relations department or firm can be unfamiliar ground for many attorneys. “The real challenge a lot of times is that the legal counsel hasn’t had a huge amount of involvement with the communications function,” Rosen acknowledges.
The best way to ensure a smooth partnership is to have a crisis plan in place before disaster strikes. Rosen says an effective crisis management plan should include the following:
• A designated spokesperson who can deliver a clear, persuasive message • Key messages that are concise and simple • Ownership of the organization’s roles and responsibilities in the situation• A commitment to openness and honesty • Communication that is “authentic” or genuine in tone and delivery• Realistic management of expectations without over-promising and under-delivering• A focus on facts, not speculation
Although PR people are usually tapped to speak for an organization in crisis, counsel can be effective as well, particularly when the crisis involves litigation. “Gifted attorneys have the ability to speak in layman’s terms, which is received very well by the media and the public,” Rosen notes. “In my experience savvy attorneys have actually turned out to be the best spokespersons in a lot of crisis situations,” he adds. “The training that makes someone a good litigator makes them in some cases a very effective public communicator.”
To build a productive relationship with communications experts, Rosen advises legal counsel to:
• Be proactive in reaching out to communications professionals• Be an active listener• Keep all the constituencies being affected in mind, not just those directly impacted by legal issues• Include the organization’s internal audience—the employees—when developing a crisis communication strategy
Clothier points out that because attorneys tend to interact with the media less than communications experts, attorneys should take care to avoid undermining their credibility—and the organization’s credibility—and can do so by cultivating a good relationship with journalists. Treat the media with respect and not as the enemy, and keep in mind that they have a job to do as well, Clothier says.