1 Opinion Channeling your inner Olivia Pope What to do when the scandal involves your company or your client By Cari K. Dawson May 2, 2014 Every week, many of us watch “Scandal’s” Olivia Pope down the three most important steps you know must handle one crisis after another. Of course, it is sensation- be taken if a crisis hits. alized for television and meant to entertain us, but the fact is, at some point or another, either as in-house or To be clear, I am no “Olivia Pope” or “Michael Clayton.” outside counsel, your company or client will find itself My area of expertise is not crisis management, and I in the middle of a scandal of some kind. The scale and am not a law firm “fixer.” But in my 20 years of practic - scope will vary greatly, but it is nonetheless a significant ing law in the area of complex commercial litigation, I and important issue that you, as the attorney, will want have represented a mayor and other city officials who to be prepared for and be able to provide valuable insight, were accused of impropriety in the award of city con - advice, and counsel. The scandal you face will not neces- tracts, an insurance carrier in the wake of Hurricane sarily be a legal or business crisis in the traditional sense. Katrina, a pesticide manufacturer whose product was In light of the global nature of business, the interconnec- involved in a leak in a rural community, and a product tions between the public and private sectors — and the manufacturer involved in one of the largest recalls in lightning fast access to and dissemination of information history, among many other clients. So, there are aspects through technological innovation, social media, and the of Olivia Pope and Michael Clayton in my practice for Internet — a political event occurring halfway around certain clients in specific matters. While some of these the world, a natural disaster, or a seemingly private mat- matters were local, others were global, and most impor - ter involving an executive, officer or director can trigger tantly, each of these examples constituted a crisis for a company-wide scandal. that particular company. Preparing a crisis management plan while in the mid- One of the first steps to channel your “inner Olivia dle of the scandal is not optimal. That is why you Pope” is to understand that as lawyers, we serve the hope for the best, but prepare for the worst. Prepare business. Serving the business may mean defeating in advance of crisis — draft the playbook and identify the litigation, fighting the regulators, beating back the the “position” individuals will play, outline basic prin- investigation or winning the trial. Or, it could mean ciples for your offensive and defensive strategies, select addressing the problem or issues through a business company spokespersons, establish relationships with solution and resolving the matter through settlement or a shortlist of crisis management firms, and identify other compromise. In either instance, not losing sight the key team leaders across the various business, legal, of the impact of the crisis on the brand, reputation, cus - marketing, public relations, human resources, and tomers, workforce and other mission-critical aspects government and investor relations platforms. “Before of the business is of utmost importance. What is the anything else, preparation is the key to success,” said endgame? What is the big picture strategy and action Alexander Graham Bell. Even if a comprehensive plan plan for coming out of the crisis with brand, reputation, is not practical or doable, think proactively and jot customer, workforce, and other mission-critical aspects 2 of the business intact or at least, impacted as little as and understand their specific roles and responsibilities possible? What is the recovery plan if the scandal has a to ensure accountability and that they are working as a temporary or permanent adverse impact? You have to collaborative and coordinated team. know the endgame as you map out the proposed strat- egy — a strategy which should be nimble and flexible The third and final step in this first installment to chan- enough for contingencies and contemplate the various nel your “inner Olivia Pope“ is to become that voice of pathways and detours you may need to take to achieve reason and calm in the center of the storm. In every cri- the desired outcome. sis, there is always chaos, and I make it my job to impose order onto that chaos, weed out the noise and distrac - The second step to channel your “inner Olivia Pope” is to tions, and remain laser-focused on the mission-critical identify your team of gladiators. There are experts in the tasks and the proper prioritization of those tasks. Being field of crisis management, public relations, and corpo- able to process, analyze, and organize massive amounts rate communications strategies who can assist you and of information quickly requires the ability to know the the company in answering the questions outlined above right questions to ask of the right people in order to learn and managing the crisis. In addition, you will need a the most important and critical facts at the center of the diverse, multidisciplinary team consisting of in-house crisis as soon as possible. These attributes are essential and outside counsel, subject matter experts, and repre- when facing a scandal. sentatives from the relevant business units. Organization of team members and project management by team lead- In the second and third installments in this series, I ers are indispensable. To refer back to the earlier sports will break down in greater detail each step outlined analogy, everyone needs to know their respective posi- above, flag the key legal issues and best practices, and tions to ensure that offensive and defensive strategies are examine the unique challenges women face in light executed properly, and team members are not working at of gender stereotypes and “double binds” for women cross-purposes. The members of the team need to know in leadership. Channeling your inner Olivia Pope (Part 2) Practical considerations and critical legal issues when scandal involves your company or client By Cari K. Dawson May 22, 2014 Shonda Rhimes knows how to tell a scintillating and down on the steps outlined in the article, and that entertaining story and keep us on the edge of our seats requires injecting some law into the discussion which, every week with the team at Olivia Pope & Associates albeit less exciting, is nonetheless important. My rec- (“OPA”) on Scandal. Olivia explained in Season 1: ommendations for channeling your inner Olivia Pope “We’re not a law firm. We’re lawyers, but this is not a included: (1) preparing a crisis management plan in law firm. We solve problems.” Every now and then, over advance of a crisis and identifying potential crisis man - the past three seasons, we have seen Olivia or Harrison agement firms for retention; (2) understanding that in the courtroom or grappling with legal issues, but as we serve the business and developing a strategic plan Ms. Rhimes well knows, thorny legal issues surround- that is consistent with the company’s ultimate goals; ing privilege and attorney work product do not hold (3) assembling a team of gladiators who will follow the a candle to elicit affairs, murders and conspiracies to playbook; and (4) being calm and focused in the cen- rig an election. ter of a storm. That said, I promised in the first installment of There are challenging practical considerations and “Channeling your inner Olivia Pope” that I would drill critical legal issues associated with the suggestions 3 I made. For example, if a company prepares a crisis of decisions, especially in connection with “dual pur - management plan in advance of an actual scandal, is pose documents” — those serving both a business and that plan discoverable or can it be developed in such litigation purpose — such as a crisis management plan a way to remain privileged? When and how do you or crisis response checklist. Olivia Pope often says, retain a crisis management firm? Are there ways to “We need to tell the story our way” because she knows structure the engagement of the crisis management adversaries will define the issues in the media for the firm and the communications with the consultant to company. In the middle of a crisis, it is challenging to ensure that communications and work product are pro - identify and engage potentially supportive third par - tected from disclosure? Practically speaking, what does ties, establish a communications strategy and rapid it mean to “serve the business?” How do you identify response team, and prepare company spokespersons. a team of gladiators and how do you ensure that they It’s a cost-benefit analysis that you will need to make work as a cohesive team? As a practical matter, how do — advance preparation versus potential discoverability. you “impose order on chaos?” The legal framework described above can assist you in efforts to protect the plan, but because the analysis is The downside of preparation of a crisis management highly fact-specific, the best strategy is to assume that plan in advance of the scandal is that it will likely be it cannot be protected and plan accordingly. discoverable. While some may conclude that the dis - coverability of a crisis management plan weighs against The attorney-client privilege protects confidential com- its preparation, there is, nonetheless, some tactical munications between clients and their attorneys for the planning that can still be pursued and potentially pro - purpose of obtaining legal advice. In United States v. tected by the attorney work product and attorney-client Kovel, 296 F.2d 918 (2d Cir.