Applying the Attorney-Client Privilege to Outside Media Consultancy Communications

While attorney-client privilege is a well-established concept in the U.S. legal system, application of the policy becomes murky when the communications in question are between a client and an outside public relations firm hired to advise on issues related to forthcoming high-profile litigation. What makes this issue particularly tricky is that legal precedent is limited.

Reed Smith attorneys Colleen Davies, Andrew Stillufsen, and I (Lisa Baird) authored an article on the subject, “PR That’s Protected,” which appears in the October edition of Corporate Counsel. The article provides several recommendations for in-house counsel to minimize the chances of having communications with an outside media consultancy become part of the discovery or subpoena processes. Among these recommendations are a strict adherence to good document practices, the creation of a carefully-worded confidentiality agreement to be signed by the media consultancy and its members, and a clear distinction between public relations advisement for issues related to the litigation matter and public relations advisement for non-litigious issues – even if that entails the hiring of multiple media consultancies.

To read the article, click here.

Government Investigations: Don't Forget About D&O Insurance When That Subpoena Arrives

This post was written by Mark S. Hersh and Paul E. Breene.

Government investigations can be both time-consuming and hugely expensive. Earlier this year, the U.S. Department of Justice and the U.S. Department of Health and Human Services announced that its 2011 health care fraud prevention and enforcement efforts resulted in record-breaking recoveries totaling more than $4 billion -- the largest sum ever recovered in a single year. With health care fraud and abuse as a top priority for the current administration, life sciences and health care organizations would benefit from reviewing their insurance policies to ensure they are protected in the event of an investigation.

When an investigation is commenced by a federal or state government entity, a company should have two standard operating procedures: first, hire experienced counsel to respond to the investigation or subpoena; and second, determine whether insurance coverage may be available to pay for what are frequently significant defense costs that may be incurred in connection with the investigation. Securing insurance coverage for subpoenas and informal investigations, both civil and criminal, can be an arduous process, but policyholders who plan ahead and know the pitfalls can give themselves a significant advantage by having coverage to pay for the defense and cost of responding to such an investigation. Failing to secure coverage for an investigation can mean that there will be no coverage if the investigation leads to lawsuits or other legal proceedings.

To learn more about how your life sciences or health care company can secure coverage to protect against costly government investigations, read the full alert.