As multiple corporate crises have unfolded involving big brands during the past few weeks and months, we’ve seen a fairly high level of criticism directed at the practice of public relations. Certainly, there has been plenty of fodder for this aspect of the discussion, but some of it is missing an important consideration: what the role of legal counsel was in the drafting of statements and other public-facing activity.
To be clear, I have no idea who has been sitting around the tables tasked with drafting the public statements of Uber, United Airlines, or Wells Fargo. I do think that it’s fairly safe to assume that legal counsel is involved in some way in each of these cases, and I can also note that in crisis work that I’ve been a part of, the legal team is never too far out of reach when it comes to review and approval of any statements made to the public when the potential for lawsuits is high.
Why the disconnect?
The disconnect between legal and PR, particularly during a crisis, is that the objective of each department is radically different. The role of corporate PR is to establish trust between the company and its audiences. Those audiences include customers, stakeholders, shareholders, and yes, even the media. The role of corporate legal is to protect the company from harm, particularly financial harm, that can arise from a variety of different sectors, whether it’s patent disputes with competitors or former employees, to potential lawsuits, whether they come from inside the organization (such as Uber) or outside (such as United Airlines) or both, as in Wells Fargo.
The best way to establish trust is to tell the truth, and accept the blame for something you’ve done wrong. This is also the best way to land yourself in legal hot water: by going on the record, in public, admitting you are wrong. It’s easy to see why and how PR and legal end up at loggerheads, especially during a crisis.
Why does this matter?
It matters to PR because it’s our profession that gets dinged in headlines during crises. Even PR professionals seem to forget that PR isn’t the only department at the table during a crisis. Repeatedly over the past few weeks I’ve seen seasoned PR professionals suggest how companies in crisis could be doing better with their PR—without ever acknowledging the fact that PR probably wasn’t calling all (if any) of the shots.
It’s also important for the simple fact that as practitioners continue to push for better measurement standards, PR must align itself with business goals. In a crisis, public relations will often be at odds with legal, as outlined above. Presumably both PR and legal want the organization to make it through a crisis with its reputation and ability to continue to do business intact. Consider this statement:
“You can win in court, but lose in the court of public opinion.”
Now consider the inverse:
“You can lose in court, but win in the court of public opinion.”
Which statement would lead one to believe that the long-term health of the business will succeed?
It’s actually a trick question. While it might be tempting to assume that winning in the court of public opinion means that a business will be able to continue to thrive, losing in court could seriously damage the balance sheet of the business, meaning either years of rough waters or declaring bankruptcy. How does this square with PR aligning itself with business goals?
PR and legal need to learn how to work better together.
The PR/Legal Dynamic
A very interesting paper submitted to the Institute for Public Relations for a scholarship consideration by Bryan H. Reber (now Dr. Reber) takes a hard look at this particular issue. The Lawyer-Public Relations Counselor Dynamic was published in 2000, but much of it still rings true today. In the study, Reber describes four “personality types” from responses to questions identifying characteristics about themselves/their profession within PR and legal and categorizes them as follows:
For PR – The “Caring Collaborator,” characterized as collaborative and seeking understanding; and the “Legal Eagle,” who is also collaborative but identifies as someone who can assess company problems from legal’s perspective as well as PR’s.
For Legal – The “Cooperative Colleague,” believes legal and PR should be involved in crisis message development/understands and believes in the value of PR’s role; and the “Confrontational Counselor,” who thinks PR should be involved but also believes legal should have final say and control over public statements during a crisis.
Two caveats are appropriate here, first, the study pool was small, with the final research pool consisting of 16 PR practitioners and 14 lawyers. Second, the study yielded qualitative results rather than quantitative data, but this makes perfect sense as he was looking at personality dynamics and perceptions of professional interaction.
How PR and legal view one another
It’s tempting to painstakingly summarize every component of Reber’s 2000 paper here—it really is that interesting. While resisting that urge, it’s still important to at least touch on the section of the paper that delves into how members of each profession view one another, in comparison to the section just above that details how they view themselves.
For PR (viewing legal) – The “Involved Suppressor” is a lawyer, viewed through the eyes of PR professionals, who wishes to “scrutinize all messages in the course of a crisis,” and ultimately say as little as possible so as to not introduce any elements that would complicate litigation. The “Quiet Associate” is a lawyer (in the opinion of PR) who while understanding public attitudes are important, believes that the less said the better.
For Legal (viewing PR) – The “Suspicious Meddler” is a PR practitioner, who, in the eyes of the legal team, thinks legal counsel “encroaches on public relations’ ground in times of crisis.” The “Conscientious Communicator” is a PR practitioner who believes that the best way to manage a crisis is to admit a problem voluntarily and quickly, but also is someone who believes that PR should be well-versed in legal issues.
Some additional insight from the report: when asked to assess each profession from the opposite perspective, lawyers were much better at predicting PR practitioners’ responses than PR practitioners were at predicting lawyers’ responses.
What PR and legal appear to agree on
The PR and lawyer responses do seem to bubble up two areas of agreement: that PR and legal need to work together, and that PR needs to be involved early on in a crisis situation.
Although it is good that PR and legal seem to agree on these important points, I’m not sure that this leaves us with a decisive path forward. It’s where we begin to see the separation of theory from practice—sure, they should work together, but ultimately if there is disagreement on what needs to be included in a public statement, which group will the CEO listen to?
It’s easy to be struck by how little has changed in the relationship between PR and legal since this study was conducted. What has changed is how society communicates. There was no Facebook, no Twitter, no Instagram when this paper was written—the internet, in fact, was headed right into a downturn as the dotcom bubble was to burst within a year or so.
The speed at which we can communicate globally changes one important point in the calculus of the PR-Legal relationship. It has significantly reduced the amount of time a company can take to get it right during a crisis.
There may never be a unified understanding between PR and legal of the best way to approach a crisis; every crisis is different. PR will be at a disadvantage, for a PR pro cannot claim that a good PR response in a crisis will avoid a lawsuit. In fact, in a larger crisis, a lawsuit seems to be an inevitability anymore. This leaves the PR pro arguing a difficult to prove position: that while a good crisis PR response might not avoid a lawsuit, the company may be able to recover its reputation in the eyes of the public more quickly.
*All interpretations of Dr. Reber’s work are that of the author of this blog post, and any mistakes made or misunderstanding of the data are mine alone.