In-house lawyers don’t expect a high profile in the press over the summer months. But July and August this year were different.Where major businesses have had well-publicised problems, such as regulatory investigations, general counsel have often been named and quoted in articles.

BP has had to contest a widely quoted purported admission of ‘gross negligence’ on the part of the company by its general counsel. Intel’s former GC, and Monsanto’s chief deputy general counsel, were both quoted in relation to US anti-trust cases. And HP’s general counsel was the senior figure deployed to explain the departure of high-profile chief executive Mark Hurd.

Their prominence is no accident. The central role that senior in-house lawyers play in an organisation when it comes under intense media scrutiny is increasingly recognised.

First and foremost, this is because of their relationship with the regulator. Alleged secrets and cover-ups are high up the media’s list of what constitutes a story – and where a regulator feels they have trouble getting information, or the information provided proves unreliable, it can be willing to publicise the source of its unhappiness. In-house counsel, therefore, need to take steps to ensure that they are not kept in the dark, and that misinformation is corrected quickly.

Second, the organisation under pressure may decide that its lawyer has the professional trust to publicly rebut misinformation.

Third, the in-house lawyer is at the centre of the tensions that pull an organisation’s instincts in different directions when faced with a crisis. If life has been lost, for example, the head of communications may want to apologise immediately; the head of legal to avoid admitting liability until the facts are clear. Those tensions need to be resolved sensibly for an organisation’s response to be clear and effective.

The advice from general counsel who have experienced being at the centre of a well-publicised crisis can be summarised as follows.

For the organisation:

  • Have an agreed way to recognise when the organisation faces a media crisis
  • Have a team that knows to assemble when a crisis occurs
  • Define the responsibilities of team members
  • Select a ‘command post’
  • Prepare your message at each stage of the crisis
  • Appoint a spokesperson
    • For the legal team:
  • Get the facts straight
  • Have a good rapport with the regulator
  • Obtain evidence of compliance
  • Have industry analysis of the facts, which may differ from a regulator’s analysis
  • Recruit third-party supporters who the legal department may be in a position to contact, such as independent experts
    • In addition to media interest in ‘cover-ups’, the legal function also has responsibilities in other classic areas of media interest including the exposure of many people to risk. Public attention may not be welcomed by many in-house counsel, but for a growing number, being in the public eye is not a matter of choice.