By Patrick MacDonald, Consultant
So you meet with a new client who is in the middle of a crisis and needs advice. As PR professionals, we cannot be certain that our counsel is relevant if we do not ask the right questions to determine their legal status.
The exact point at which they stand in their legal proceedings will directly impact on our ability to publicise their cause within the media. Since most reputation and crisis issues are invariably accompanied by some kind of legal calamity, it is prudent to know the basics of the process in order to reliably advise.
Below are some examples of statements that clients sometimes offer during consultation. These should act as “red flags” for PR practitioners and immediately pique the need for further clarification.
“We are under criminal investigation”
The first question to ask is “has there been an arrest or have charges been laid?”
If the answer is NO: the matter is not yet deemed as “pending” for the purposes of the sub judice law of contempt. You technically have the right to air your client’s message in the media, and if it looks like charges are likely, it may be your last opportunity to do so before a lengthy period of preclusion begins. However, from a practical and ethical perspective, you may decide it is preferable to avoid anything that might influence the investigation, particularly if it is criminal, until the matter is resolved.
If the answer is YES: nothing other than the “bare facts” can be reported once someone has been arrested and charged. You are by all means still able to assist the client with all methods of communications support, but be aware not to waste your client’s money by producing work that is sensational or tends to touch upon the merits of an active case, even if it involves a guilty plea. The matter is now “pending”, and once this status is obtained, good journalists will not entertain PR material that contains information that might be contested in Court. Although contempt laws are aimed at punishing the media outlets that publish stories in breach, an awareness is nevertheless needed on the PR end in order to identify the most effective approach to take for the client.
“They are taking us to Court”
For civil matters, ask your client, “has anything been filed with the Courts?”
If the answer is NO: it’s business as usual, since there only appears to be an intention to take legal action. You can assist your client without fear of contempt limitations. It may also be your last opportunity to utilise the media before the preclusion period begins if proceedings seem imminent.
If the answer is YES: the matter is dealt with in the same way as if an arrest or charge has occurred in a criminal matter. The proceedings are now before the Court and a “bare facts” approach should be employed by the media.
“We are in negotiations”
Do not be fooled into thinking negotiations or alternative methods of dispute resolution are always privately instigated. Many judicial institutions in which proceedings are active insist parties attempt conciliation or mediation requirements as part of the progression of a matter before the hearing phase. You must therefore still ask the same questions you would for a civil action in order to determine if the matter is “pending”.
“My proceedings are in a Tribunal, not a Court”
Although Tribunals do not have inherent contempt powers in the same way Courts do, this does not affect the application of general contempt law. It is therefore wise to treat Tribunal proceedings in the same way as those of a regular Court.
“Our case has already been heard in Court”
There are so many questions that come from a statement like this, and it by no means signals that the matter is done and dusted. Firstly, has a decision been issued by the Court? It is common for matters to be heard and take months for a final decision to culminate. Secondly, if a decision has been made, at what time does the appeal period expire? It is wise to treat the expiration of the final avenue of appeal as the point at which the matter is no longer “pending” and the sub judice restrictions are lifted. Thirdly, it is prudent to enquire about the existence of any related or additional charges or proceedings that may be scheduled to be heard separately.
It is helpful from the beginning to ensure your client is specific about their legal status. These pointers are designed to help PR practitioners elicit the most accurate details from their clients in order to establish this. This is not only useful in protecting yourself and your work, but also in diagnosing the most effective strategy from which your client can benefit.