Crisis Counsel

Navigating Legal and Communication Conflict

Tony Jacques

• Publisher: Rothstein Publishing
• Year: 2020
• ISBN:
  9781944480660
• Topic: Negocios y empresa
• Subtopic: Industria de medios y comunicaciones

Crisis Counsel: Navigating Legal and Communication Conflict, by Tony Jaques, Ph.D. is a new book by Rothstein Publishing.

This book is designed to provide hands-on, practical guidance for senior executives, lawyers and public relations professionals to navigate crises and to balance conflicting advice from lawyers and communication professionals while promoting open communication and protecting legal liability.

The book will help you to:

• Balance reputation protection and legal obligation during a crisis.
• Know why and how to apologize without increasing liability.
• Weigh legal and communications advice when a crisis strikes.
• Learn from original research which lets lawyers and communicators speak in their own words.
• Draw practical everyday lessons from real-world examples of conflict between lawyers and communicators.
• Navigate the legal and communication challenges of dealing with the media in a crisis.
• Motivate lawyers and communicators to work better together.
• Identify and avoid crucial areas of potential conflict from selected crisis case studies.
• Understand the essential difference between corporate responsibility and legal liability.
• Make decisions and do the right thing to protect your organization.

The book includes a wide variety of global case studies and examples while analyzing how legal and communications advice was managed and the impact on reputation. Crisis Counsel also includes interviews with four of the leading global experts on crisis management and the conclusions of a focused, unique global survey of senior lawyers.

Chapter One

Roles and Responsibilities:
Who Does What in a Crisis?

“The person who knows HOW will always have a job. The person who knows WHY will always be his boss."

Alanis Morissette

Despite what some commentators assert, it is simply not true that lawyers and corporate communicators are natural enemies. Nor are they inherently in conflict, destined to always disagree.

The reality is they are two groups of professionals, working on the same team and trying to do what they believe is in its best interests.

But as President Lyndon Johnson is reported to have said: “When you’re the leader of the free world it’s not difficult to do the right thing. The difficulty is knowing what is the right thing to do.”

Nor is this an issue of who is “in charge.” If that was the response then it’s the wrong question. My concern here is not about who is “in charge.” It’s about how lawyers and communicators can manage their differences and provide the best possible advice to decision-makers.

This chapter will help you to:

• Differentiate between the roles of lawyers and communicators.
• Identify and manage situations where legal and communications advice may come into conflict.
• Recognize genuine crises and potential crises as opposed to other management problems.
• Develop and implement workable protocols to minimize disagreements and deliver optimal solutions.
• Value differing viewpoints and secure the greatest benefits from those differences.
• Develop the skills to assess competing advice in a crisis and make informed decisions in the best interests of the organization as a whole.

It would be foolish and naive to think that lawyers and communicators don’t frequently have different opinions about any given situation — especially when a crisis threatens. That’s no surprise. They typically have a different approach to what should be done and said, yet the idea that they can’t work together is just plain unhelpful.

Indeed, one large study of American communications practitioners concluded that, while there was considerable discussion about this supposed turf war, lawyers and communicators do in fact enjoy “relatively harmonious and collaborative relationships.” ¹⁶

Which may be true. But in the heat of a crisis — when the stakes are high and may actually involve the survival of the organization — even the most harmonious and collaborative relationships can come under intense stress.

Over my professional career in communication I have worked with many lawyers, mainly in a corporate environment and most often in relation to high-profile issues and potential crises. And I have to say that generally I have found them to be cooperative, supportive and respectful.

The focus of this book is on crisis and potential crisis situations, and I have included scores of real-life examples where lawyers and communicators have worked well together as well as examples of where apparently conflicting advice led to dire consequences.

In a public relations journal article provocatively titled “In defence of lawyers,” crisis consultant Steve Frankel wrote: “Lawyers and public relations counsellors have not always had a romantic relationship.¹⁷

I really like this comment, not just because it was a masterly understatement, but because I think it goes to the heart of what this book is about.

It’s true that the relationship between lawyers and communicators has not always been a fond one, though I hope to show you that the relationship is improving.

However, continued improvement is not without challenges, and won’t happen by itself. It demands genuine commitment from lawyers and communicators to work better together and to recognize what they each contribute to effective crisis management. It also demands a willingness to change. But before discussing specific roles and responsibilities I need to briefly clarify the true nature of crises.

The Nature of Crises

A good place to start is a strong definition, and one of the most descriptive and widely quoted definitions of a crisis was developed by the Americans Christine Pearson and Judith Clair:

“An organizational crisis is a high impact event that threatens the viability of the organization and is characterized by ambiguity of cause, effect and means of resolution, as well as by a belief that decisions must be made swiftly.¹⁸

British public relations expert Professor Anne Gregory later went even further:

“Crises are high consequence, low probability, overlaid with risk and uncertainty, conducted under time-pressure, disruptive of normal business and potentially lethal to organizational reputation.” ¹⁹

Strong words. And in the face of such stress, ambiguity and uncertainty, the need to do and say the right thing and the risk of doing or saying the wrong thing is greater than perhaps at any other time. This means there is no other occasion when the executive depends more on strong, consistent advice from legal and communication professionals.

I like both of these definitions because they emphasize the seriousness of a genuine crisis. Within business and society these days, the word “crisis” has been badly devalued by overuse, until it is now sometimes used to describe just about any embarrassment or minor problem. When the keynote speaker fails to turn up at your conference it is embarrassing and awkward, but it is not a crisis. When the CEO inadvertently utters a profanity during a national television interview, he or she might be revealing something about themselves, but it isn’t a crisis.

And, contrary to a report I read in an IT magazine, when someone misplaces the piece of paper with the computer admin access passwords, it isn’t a crisis (unless maybe the passwords fall into the hands of a hacker determined to destroy your entire database).

Furthermore, some individuals within management choose to label their particular problem a crisis or a potential crisis as a means to increase attention and perhaps spring some additional funding for their budget.

This is certainly not what I am talking about here, and it’s important that you understand the true nature of a crisis. Every expert has their own crisis categories, but to make sure there’s no misapprehension about what constitutes a real crisis, I have constructed my own list.

Categories of Organizational Crises
Operational crises	Arise from workplace incidents such as spills, leaks, fire or explosions, or from sabotage, onsite shooting, social unrest or even terrorism.
Environmental crises	When society is exposed to pollution, or release of toxic substances into the environment, such as lakes, waterways, groundwater or into the air.
Management or employee misconduct crises	Moral or ethical lapses, such as corruption, bribery, scandal, industrial espionage, theft or other criminal activity.
Management/legal crises	Such as layoffs or shutdowns, or alleged business wrongdoing including price-fixing, tax evasion, trademark or patent infringement, or unfair competition.
Technological crises	Technology failure or breakdown including computer systems crashing, breaches of privacy, hacking or loss of data.
Product crises	Product tampering or product failure, such as contamination, manufacturing error, or design fault causing illness, injury or even death.
Labor relations crises	Industrial disputes or employee allegations such as racial or sexual discrimination, bullying, wrongful dismissal, or dangerous working conditions.
Social concerns	Arise from concerns such as animal testing, genetically modified organisms, unsustainable packaging or suppliers who use exploited labor.
Natural disasters	When external events like floods, earthquakes, cyclones and wildfires trigger organizational crises by threatening facilities, raw material or markets.

It should go without saying that not all of these examples will necessarily develop into full-scale crises. That’s why crisis prevention is such an important part of crisis management. However, my list should give you a clear idea of the range and breadth of possible crises.

Avoiding the Legal Response Syndrome

Regardless of the category of crisis, there’s a good reason why legal advice is important in crisis management, namely that just about every crisis or potential crisis has a distinct legal component. But at the same time just about no crisis or potential crisis is ever solely about legal matters. I need to say that again because it pervades this entire book: Just about no crisis or potential crisis is ever solely about legal matters.

Failure to understand that leads to what I call the Legal Response Syndrome, where your organization treats every crisis as if legal considerations override all others. Of course, it’s important that all legal angles are appropriately addressed. And of course, you need to seek and listen to legal advice. No responsible executive should proceed without fully appreciating the legal position. Moreover, executives and boards have a statutory obligation to act in the best interests of shareholders. That’s spelled out by law.

Given that framework it’s perfectly understandable that you tend to listen to lawyers. After all CEOs and the Boards they report to must be well versed in all legal responsibilities and requirements of compliance and fiduciary duty (not to mention that they may be paying very handsomely for legal advice).

The Legal Response Syndrome arises when legal counsel is allowed to trump all oth...