Lawyers would be wise to lay out the potential for bad publicity when clients embark on a lawsuit, despite the lack of formal ethical or legal obligations to inform prospective plaintiffs of privacy concerns, attorneys say.
The defamation case involving actors Johnny Depp and Amber Heard has transfixed viewers and spotlighted the possible pitfalls associated with bringing suit, said Pat Lundvall, a partner at McDonald Carano LLP in Las Vegas and Reno, Nev. Whether celebrities or not, clients need to be made aware of the impact a case might have on their life and livelihood.
“It’s within the scope of one’s representation to fully advise your client of what they’re getting into before a matter becomes public,” Lundvall said. “It’s not required by professional rules of conduct, but it’s a best practice.”
Public court filings live on after a settlement has been reached, and litigation can have a large impact on a client’s privacy, mental well-being, and career, said Sandy Crawshaw-Sparks, a partner at Proskauer Rose LLP in Los Angeles and New York.
What seems banal to one person may be social media or tabloid gold, she said.
“In my practice, discussing potential media impact is oftentimes the first thing we talk about,” said Crawshaw-Sparks, who frequently advises publicity-conscious clients. “Once something is out there, it’s hard to undo, especially in this day and age.”
Discovery, Trial Protections
Entering into a protective order during the discovery phase of a case may guard the confidentiality of information during that period, Crawshaw-Sparks said, though it could still be disclosed during trial if the judge doesn’t agree it should continue to be shielded.
Further complications may arise if other parties in the case don’t agree to the order or the judge refuses to sign off on it, Crawshaw-Sparks said. And a party who agrees to a protective order could break it, leading to sensitive information being made public, she added.
“If a party decides to violate that order, sometimes there’s no meaningful remedy,” Crawshaw-Sparks said.
You can’t ask all jury members or court spectators to sign confidentiality orders, making it crucial for practitioners to understand that protective orders aren’t a privacy panacea, Lundvall said.
“If the evidence that’s been uncovered during discovery is going to be introduced over the course of that trial, it’s now a matter of public record,” Lundvall said. “If you don’t let your client know about that possibility, they could be left flat-footed.”
Social Media Considerations
Some lawsuits remain relegated to links on the public dockets, but others are boosted online or by the news media, said Nicole Hyland, a partner at Frankfurt Kurnit Klein & Selz PC in New York.
Clients have different tolerance levels for publicity, Hyland said. Understanding their appetite or aversion regarding media coverage is critical when advising them, she said.
“As social media continues to be popular, a smart lawyer will give thought to how it could publicize a case and have those conversations with a client,” Hyland said.
Filing a lawsuit results in the loss of control, which is a major factor for clients deciding whether it’s worth it to engage in litigation, she added.
Some clients are fine with publicity—and in some circumstances seek it out—but litigation can often have unpredictable effects on a client’s image, Hyland said.
“Sometimes when you sue, you bring more attention to the issue than there otherwise would be on it,” she said.