What Good is Your Lawyer in a Crisis?

The wisest leader once pointed out that a successful leadership team is like a successful football team: Everyone brings a different skill-set to the game but they all have a common aim.

A crisis team is the same. Every member of a crisis team should bring a unique skill that is essential to managing the crisis. If a team member does not do that, then question whether they should be at the table at all.

What can a lawyer bring to the table?

  1. A focus and expertise on evidence. It sounds boring perhaps but having someone who acts as the gatekeeper on whether statements by the organization are sufficiently certain to make them publicly can be critical.  It is common in the early stages of a crisis for information to come to the crisis team that looks like facts but isn’t:  It could be out-of-date, or just a guess than someone has made in the heat of the moment.  Your lawyer is trained to assess assertions for their reliability and can act as the cool head when there is pressure to get information out quickly.  Releasing inaccurate facts can be far more damaging than being a little patient.
  2. Risk management. Your lawyer will have expertise on the organization’s risk profile – not only legal risks but also key reputation risks.  In many organizations, lawyers are part of the core enterprise risk management team and can bring this perspective to the table.  This is essential when a crisis team needs to quickly prioritize its actions, understand the entire picture and absorb new information as it comes in.
  3. Getting statements 100% accurate. Lawyers are trained to seek out ambiguity in written documents.  They can therefore be a useful resource for crafting communications that say as much as it is possible to say at a moment in time, without over-committing or risking a third party misunderstanding what the organization is trying to say.
  4. Stakeholder perspective. Your lawyer may represent the views of key regulatory stakeholders – especially law-enforcement and the public as regards public expectations on ethical standards and the application things like commitments to NGOs or codes of conduct.
  5. Is it legal. Last, but not least, your lawyer should be the gatekeeper of the legality of all actions the crisis team proposes to initiate.  Sometimes this is more difficult than you might think:  Can you pay the police to shore up their support at the scene?  Can you contact a competitor to get help?  Your lawyer will know.

That said, there’s no denying that lawyers can be inconvenient, especially when you are racing to get messages out. Indeed, the potential for conflict between the communications team member and the lawyer is ever-present. The default position of the lawyer may be to say nothing to stakeholders unless there is a legal obligation to do so. In fairness, this is the best way to minimize prosecution risks. It is not the best way to manage all risks which is why it is essential for the communicators on the team to find common ground with the lawyer on how to manage all risks. This does mean it is ok to challenge the lawyers when they get too enthusiastic with the red pen on your draft communication. It doesn’t mean they are always wrong.

A great example of this is apologies: As a communicator you know that the most powerful way to calm outrage can be to apologize. The problem is, in some jurisdictions an apology can be used in court as an admission of guilt. So the lawyer has reason to be wary of them. Sometimes it is essential to acknowledge the organization’s regret, even when the organization has not been the cause of the crisis. This may take some enthusiastic debate with your lawyer and careful wording to ensure the right message is conveyed, but don’t give up on some form of apology just because your lawyer doesn’t like the first draft.

So how do you get the best out of your lawyer? Invest some time at the beginning to ensure that, like any good team, your aims are truly aligned. Get the lawyer’s risk assessment on the table early and ensure that the team is agreed on what are the overall priorities from moment to moment. Leverage your lawyer’s expertise on evidence and ambiguity to ensure your communications are robust. Remember that your lawyer can be a valuable champion of the company’s reputation, both in the crisis room and in the work you do every day to build the organization’s reputation.

In a crisis team you should ask, indeed demand, all the above skills from your lawyer. That said, an inhouse lawyer is far more likely to have a holistic view of the enterprise risk assessment than an external counsel. While both can be useful, inhouse legal can be especially so as we will drill into in a future blog …
CS&A’s training programs lay out what it takes to make a crisis team successful. This is where an organization needs more than just a crisis plan: It needs a team who know each other and know what each team member brings to the table. A successful team dynamic is half the battle in crisis management – talk to us to find out how to forge your perfect team.

 

Cathy Heeley is a Singapore-based associate with CS&A International. She has 15 years’ experience as a legal counsel working with a top tier Australian firm and 14 years’ experience working as an in-house legal counsel with Kraft Foods, Mondelez International, Croda and Syngenta covering Asia Pacific.

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