By: Tyler Jones, Esq.
When crisis hits, there is little time to consider the implications of every minor maneuver, communication, and decision that is made in what is likely a more than usually chaotic situation. While the immediate focus after a crisis situation occurs is the immediate physical reaction such as providing medical treatment, notifying emergency services, etc. – assessing the situation and determining next steps is not far to follow. An unhappy fact of such crisis situations is that there is a likelihood that some sort of litigation will follow down the line. In that case, those maneuvers and communications made by the decision-makers and employees within a company will likely be put under the microscope.
The fact that communications and documents might be discoverable by an adversary during later litigation makes outside attorneys with expertise in managing crisis situations especially vital. Beyond the actual substantive advice and resources that they will provide, utilizing attorneys during a crisis can also provide the benefit of the attorney-client privilege. Even a company with its own inside counsel will likely want to retain outside crisis attorneys as the attorney-client privilege is a fickle beast and can often be difficult to invoke for communications made with attorneys employed by the company that is in need of the advice and direction.
A long book could be written on the intricacies of how the privilege interacts with crisis situations – as no two crises are the same and legal scholars will argue about the function and application of the privilege for years to come. However, on a basic level, retaining a crisis attorney at the outset of the crisis and creating the cloak of privilege allows for a full and honest accounting of the facts surrounding a crisis. This in turn creates the groundwork for confident and effective decision-making on how to best move forward for all involved. A crisis attorney will also have perspective and foresight as to how certain communications and decisions could impact not only the immediate situation, but also potential future litigation. Even a casual email conversation between employees could be discoverable and have a significant impact down the line such that involving a crisis attorney early to provide clear direction can have a great impact.
These types of concerns can also be counteracted by putting in place internal policies and guidelines for employees on how to handle communications and documentations during a crisis in the context of potential litigation. A crisis attorney could assist in developing such guidelines that are tailored to your business’s specific characteristics and needs.