Privileged PR? Not This Time, Says California Court

In the first decision of its kind in the state, a California appellate court may have opened the door to extending attorney-client privilege to a litigant’s public relations team.

On March 15, in Behunin v. Superior Court Los Angeles County, a three-judge panel took the position that a public relations firm hired to advise on strategy or to influence media coverage of a litigant could be protected under attorney-client privilege, in the same manner as a third-party expert or other litigation consultants. The court emphasized, however, that extending the privilege is contingent upon the litigant’s ability to prove that the information shared with the public relations firm was “reasonably necessary” from a legal standpoint.

In the case, the court held that a businessman involved in litigation with Charles R. Schwab over the fallout of an unsuccessful real estate venture could not use attorney-client privilege to protect the information shared between his attorney and a public relations firm hired to create a website in support of his case. Significantly, the panel reasoned that “without some explanation of how the communications assisted the attorney in developing a plan for resolving the litigation, [the Plaintiff] would not be able to show such communications were reasonably necessary to accomplish [the Public Relations firm’s] purpose in representing Behunin.”

Read the full opinion here.

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