A news story about a class-action lawsuit against technology companies such as Apple and Google highlighted the thin line between practicing law and public relations. The article discussed efforts to protect a person’s image and preventing protracted talk of past investigations, levels of financial success and managers’ salaries. We wonder how much of this posturing is truly germane to the legal issues at hand and how much of this is actually about preventing the media from relaying potentially negative information about companies much of the public views in a positive light.
“When the issue is a jury’s perception of a party, there is no bright line between public relations and the law,” said Steven Adelman, the head of Adelman Law Group, PLLC in Scottsdale who often deals with well-known clients. “This article suggests that the lawyers for the defendant high-tech employers are trying to keep potentially damaging information from reaching the jury, such as the enormous wealth of Silicon Valley companies and certain unlikable characteristics of the corporate leaders. This is the lawyers’ job, just as it is part of the pretrial maneuvering before every trial. The judge’s rulings on such issues can help push the parties towards settlement, which is also an important part of the process.”
“There isn’t a clear line where the law ends and PR begins,” said Ruth Carter, Owner/Attorney of Carter Law Firm, PLLC in Phoenix. She specializes in business contracts, intellectual property, social media law and flash mob law. “In advising business clients, attorneys have to be mindful of the business’ long-term goals. For many companies, a lawsuit can be its demise either from the financial burden of litigation or the loss of revenue from damage to its reputation. The lawyers have to think about what the law says and what is in the company’s best interest from a business perspective and advise them with both perspectives in mind.”
Pamela L. Kingsley, who practices employment and business litigation law at Tiffany & Bosco P.A. in Phoenix, told us: “While one goal may be to prevent media coverage for day-after-day of trial, many of the details already have been made public. To obtain class certification, the named plaintiffs laid out specific details of ‘the overarching conspiracy’ among the defendants to remove ‘cold-calling’ from the recruiting methods for high-tech labor through the use of ‘Do Not Call’ lists. The press has relayed the information to those with an interest. At this point, the attorneys may well be seeking to prevent the average consumer from the negative connotations of a finding of illegality associated with the mistreatment of employees.”
Companies such as Apple and Google built significant good will with the public through their products and services. Would hearing negative impressions really impact the public’s perception of those businesses? The film The Social Network, from our perspective, didn’t place Mark Zuckerburg in a particularly positive light, but on The Flip Side, we can’t recall people frequently portraying him as a technological villain. In this particular class-action suit, are the attorneys over thinking it? Would this case, and any potentially negative information derived from it, actually significantly shift public opinion about the companies in question?
“Attorneys get paid to ‘overthink’ other people’s problems,” Adelman told us. “We call it doing our jobs. And not a small number of people dislike Apple, Google, and the other tech behemoths.”
“Reaching a settlement may go a long way toward the public’s perception – simply by removing the case from daily discussion,” said Pamela Kingsley. “But the tech companies and their attorneys are likely much more focused on limiting their direct damages to the plaintiffs. Not only would a large hit have immediate impact on their wallets, but a substantial verdict tends to linger longer in the public’s memory than a comparable or (as one would expect) lesser settlement.”
But in doing their jobs, the attorneys’ efforts inspired The New York Times to write a story, which, in large part, focused on what lawyers don’t want the rest of the world to hear. This reminds us of a past crisis communications client. A national, negative news story about another company led a handful of upset people to make a connection to his business. He was concerned and asked us to take action. But the criticism leveled toward his company was so small, we advised taking the strong action he discussed could backfire and draw unnecessary and unfair attention to him. Are the attorneys in the tech lawsuit actually creating an unnecessary spotlight by trying so hard to limit damaging testimony?
“No, this is really important,” Adelman said. “Lawyers file motions to keep damaging or prejudicial evidence away from jurors before every trial. Jurors are instructed to weigh only the admitted evidence before them, but this sort of inflammatory material can sway jurors to disregard the facts, or to want to reward the victims beyond the merits of their claims.”
“I think it’s hard for the public to remember that the lawyers’ job is to zealously represent their client,” Ruth Carter told us. “(I’m not saying they lie, cheat, steal, etc. for their client.) They put on the best case they can for their client and do their best to keep out any evidence the other side wants to introduce if the other side hasn’t followed the procedure or rule to be able to use it. That’s their job. It’s the judge or jury’s job to determine the truth based on the laws that apply and evidence presented. Hopefully everyone does their job to the best of their ability and something close to the truth is determined and an appropriate outcome is achieved. In many situations, no one really wins in litigation once everything is said and done but hopefully wrongs were made right. It’s a messy imperfect process.”
“Overthinking” public relations has its advantages. We often infer some attorneys, so obsessed with limiting their clients’ financial risk, disregard the damage to those clients’ reputations. For example, while an attorney may limit a company’s payout, the business and its top boss are left with reputations in ruin. But we infer from Pamela Kingsley that, in the class-action technology lawsuit, the real issues are already out for public consumption.
“One would have to look hard to infer the primary focus is on the prevention of certain testimony at trial,” Pamela said. “While the particulars of the email messages and other communications may have an impact, publicity-wise, on the specific individuals engaged in the exchange, the details have been, or ultimately will be, made public regardless of whether they are made known during a long trial. But the intricacies are not what the conspiracy intended to hide – it was the silent or stated agreements not to poach. That cat is out of the bag – regardless of whether the plaintiffs win.”
Attorneys and PR practitioners might have more in common than they realize. What is also similar are the risks and rewards of trying too hard or not trying hard enough when protecting someone’s reputation. What do you think? You be the judge.