Just as some clients think that copying a lawyer cinches privilege protection, even sophisticated clients relying on well-known law firms might erroneously believe that having those law firms hire a public relations consultant will assure privilege and work product protection. It doesn't.
In In re Valeant Pharmaceuticals International, Inc. Securities Litigation, defendant Valeant's counsel Covington & Burling hired a public relations firm "to assist Legal Counsel's representation of Valeant . . . in investigations conducted by the Department of Justice" and related matters. Master No. 3:15-cv-07658-MAS-LHG, 2021 U.S. Dist. LEXIS 136875, at *23 (D.N.J. July 22, 2021) (alteration in original). Covington's engagement letter with the public relations firm contained all the most helpful provisions intended to support privilege protection. But Valeant's executive who authorized Covington's retention of the public relations firm acknowledged in his deposition that the public relations firm was retained to provide "general public relations services." Id. at *53-54. A retired judge acting as a Special Master concluded that the public relations firm's "services consisted of general public relations assistance, the primary purpose of which was to present a favorable public image of Valeant, not to assist its attorneys in litigation." Id. at *61.
If asked to review the Special Master's report, a judge might reach a different conclusion. But the Special Master's report highlights the importance of following up the provisions of a carefully drafted public relations firm engagement letter with communications clearly demonstrating that the public relations firm actually helped the hiring law firm provide legal advice.
Published October 15, 2021.
