Ethics in Brief

Ethics in Brief is designed to present ethical issues that practitioners might well face on a daily basis. It is a service of the Legal Ethics Committee of the San Diego County Bar Association.

Court of Appeal Declines to Extend Attorney Client Privilege to Public Relations Consultant, But Recognizes Potential Application

Does the attorney client privilege extend to communications with public relations consultants? Conceivably, but in its first look at the issue the Court of Appeal held such communications were not reasonably necessary to accomplish the purpose for which the client consulted the attorney and thus not privileged. (Behunin v. Superior Court (Los Angeles) (2017) 2017 WL 977095 at *1.)

There, the defendant Behunin sought to strike the plaintiff’s defamation claim under the Anti-SLAPP statute and the plaintiff successfully claimed the communications were necessary to defeat the motion. The trial court ordered Behunin to produce communications between himself and his public relations consultant and communications between his attorney and the same consultant notwithstanding Behunin’s contention the communications were protected by the attorney client privilege.

At the threshold, “[t]here is no ‘public relations privilege’ in California.” (Id. at *6.) However, as the appellate court noted, disclosures of attorney client communications to third parties will not waive the privilege under two settled circumstances: 1) where the third party has no interest of his or her own in the matter, but a litigant must disclose a confidential communication to the third party because the third party is an agent who will help to advance the litigant's interests; 2) where the communications fall under the common interest doctrine. Behunin unsuccessfully argued both exceptions applied.

The Court of Appeal noted at the outset “[t]here are no California cases analyzing whether a communication disclosed to a public relations consultant is a confidential communication between a client and a lawyer” and cited a New York District Court case holding the privilege was waived even in the face of evidence the consultant had been substantially involved in developing litigation strategy. (Egiazaryan v. Zalmayev (S.D.N.Y. 2013) 290 F.R.D. 421 [“plaintiff submitted declarations and documents showing the public relations consultants developed a set of key messages and compelling narrative in support of the legal cases, participated in the development of legal strategy, contributed legal recommendations, provided next step action plans, weighed strategic considerations in order to promote the plaintiff's overall legal goals, discussed legal options with the plaintiff's attorneys, gave advice in determining the benefits of taking legal action, and advised counsel for the plaintiff as to what might be effectively done on the public relations front so the attorneys could properly advise their client as to the appropriate course of action in light of his wider litigation interests”].)

By contrast, the defendant “Behunin provided little evidence explaining how or why communications among [the consultant, his attorney], and himself were reasonably necessary to assist [his attorney] in his ability to advise Behunin or litigate his case” and “Behunin produced no evidence showing why his or [his attorney’s] communications with [the consultant] were reasonably necessary to develop a litigation strategy.” Notably, the appellate court held “[t]he involvement of a third party changes the burden of proof in litigating attorney-client privilege issues.” (Behunin at * 6.) “Where a third party is present, no presumption of confidentiality obtains, and the usual allocation of burden of proof, resting with the proponent of the privilege, applies in determining whether confidentiality was preserved.”

The decision affirms that those who seek to advantage their clients by use of third party consultants must be prepared to demonstrate those communications with the consultant are reasonably necessary to accomplish the purpose for which the client consulted the attorney.

-- Andrew Servais and Corey Garrard

**No portion of this summary is intended to constitute legal advice. Be sure to perform independent research and analysis. Any views expressed are those of the author only and not of the SDCBA or its Legal Ethics Committee.**