LEGAL
Business entities, including large banks and financial institutions, are facing an unprecedented onslaught of governmental investigations on suspicion of dubious business practices. Now, more than ever, outside counsel, in-house lawyers and compliance professionals need to recognize how important a media response is to the outcome of a crisis or government investigation. Determining how to create the right media message without compromising an underlying investigation can be challenging and requires a careful balancing of risks and rewards.
Chapter 15, Handling The Media During Government Investigations, of "Defending Corporations and Individuals in Government Investigations,"i explains what a practitioner should know about dealing with the media in the context of a government investigation. It examines the issues that should be considered by counsel to avoid putting a client in "extreme peril" when dealing with the media during government investigations, including (i) how to develop a compelling narrative, (ii) how to best communicate with the media, and (iii) how to select, retain and communicate with a media consultant.
Counsel should keep in mind the following key considerations when developing a media strategy:
Once counsel has the answers to these questions, he or she may choose to adopt either an offensive strategy, by presenting its client in a favorable or more balanced way and correcting inaccurate information, or a defensive strategy, which simply ensures that the information reporters gather is accurate.
Counsel must beware the pitfalls of public statements made during an investigation—for instance, out-of-court statements, including those made to the media, made by a party, or its agent, are potentially admissible in litigation. Another concern for lawyers and media consultants who speak to the media on behalf of clients is they risk inadvertently waiving the attorney-client privilege or work-product protection by disclosing client confidences through media statements.
Media consultants can play a critical role in responding to a high-profile investigation or crisis. The best consultants will have more well-established contacts in the media than most lawyers, and these contacts can assist counsel in getting the right message to the intended audiences in the best light possible. In limited circumstances described in Chapter 15, some courts have extended attorney-client privilege to communications with media consultants but often they do not - so counsel should keep this in mind when communicating with their media consultants.
With the increasing number of government investigations and prosecutions of white collar criminals, counsel must contend with an unprecedented interest by the public and the media. Consequently, more than ever, having a legal team that includes seasoned media consultants can tremendously improve the client's experience in contending with a high-profile investigation or crisis.
Mark P. Goodman is a partner at Debevoise & Plimpton LLP, where his practice focuses on white collar criminal defense, internal investigations, regulatory enforcement matters, and complex civil litigation. Mr. Goodman represents companies and individuals in grand jury and regulatory investigations and criminal proceedings involving allegations of securities fraud, healthcare fraud, insider trading, and violations of the Foreign Corrupt Practices Act. Mr. Goodman frequently conducts internal investigations and represents corporate boards and board committees.
Daniel J. Fetterman is a partner at Kasowitz, Benson, Torres & Friedman LLP, where his practice focuses on white-collar criminal defense, internal investigations, and complex business disputes. He routinely represents both corporations and individuals and has represented clients in matters relating to, among others, the Madoff ponzi scheme, the Hilton/Starwood litigation, the Bank of America/Merrill Lynch CDO litigation, the Vioxx litigation, the New York Jets/Cablevision stadium litigation, the Governor Blagojevich prosecution, and the Staten Island ferry crash.
Visit the West LegalEdcenter for these recent programs by Dan Fetterman and Mark Goodman on 'Defending Corporations'
Conducting Effective Internal Investigations
Defending clients in FCPA Investigations
Defending Clients in DOJ and SEC Investigations
-->
