Lawyers: You Have the Right to Remain Silent, but What You Don’t Say Will Be Held Against You
We touched on many issues in our recent crisis communications CLE, but one topic seemed to generate a lot of questions. Lawyers, perhaps by their very nature, are guarded, suspicious, and protective of their cases and clients. Ironically, reporters have those very same traits. Often, against a lawyer’s better judgment, when a reporter calls about a client or case, the first instinct is to either not call back at all or just say “No comment.” As an advocate for your client, however, that “no comment” can end up hurting your client and its reputation. Although lawyers are often focused on the litigation, your business client cannot just ignore reputational harm.
As an advocate for your client, however, that ‘no comment’ can end up hurting your client and its reputation. Although lawyers are often focused on the litigation, your business client cannot just ignore reputational harm.
Just think of all the stories you have seen where the tag line is “John Doe refused to comment” or “We called representatives at John Doe Enterprises but no one returned our phone calls.” At this point, the damage has already been done and John Doe or his business is looking pretty guilty, like there’s something to hide. When I was a reporter, the “no comment” was a major frustration. As a journalist, you always want both sides of the story and strive to have a balanced story. It can be frustrating when someone won’t return your calls or give any explanation. And, you can’t help but wonder why someone who can comment or even should comment decides to remain silent.
Even as a reporter, I tried to persuade lawyers to speak on behalf of their clients, but many just refused to budge from their practice of never commenting. What many lawyers forget, however, is just because you choose not to comment doesn’t mean the story goes away. In fact, the story will go on no matter what, assuming it is newsworthy, and it will go on without you and without your client getting a voice or even a chance at a fair shake. Even scarier, a reporter having a bad day or letting a frustrating “no comment” get the best of them, may project that frustration and bias in the story, making your position even worse. In the meantime, the other side is able to control the message and monopolize the entire story.
I can’t tell you how many times I’ve covered stories where one side does a lengthy sit down interview and tells their whole side of the story and then at the end of the story, despite several attempts, I was forced to say that the other side refused or declined to comment. As a reader or listener, there’s almost always one conclusion—well, that person’s guilty or can’t even say anything to defend themselves. It must be really bad.
After all, life has taught us to think that way. As lawyers, we understand, cherish, and respect the right to remain silent. Unfortunately, the real world rarely sees it that way. I see it every day with my two and a half year old son. He’s eager to tell me when he did something great. Ask him if he just threw a block across the room or colored on the wall and there’s always silence. Every mother knows what that silence really means.
So, what do you do the next time that reporter calls or shows up at your office? It depends, but avoid silence if at all possible. As a lawyer you don’t want to say too much. After all, you want to keep your litigation strategy close to the vest and you certainly want to stay within ethical boundaries and not divulge any client confidences or do anything against your client’s best interests. You also never want to talk to the media without adequate preparation or without having fully thought about the best message and method for a response. Some responses are better left to a written statement, some to a brief television interview, or even a press conference. Sometimes there truly is nothing you can say without violating a Rule of Professional Responsibility or a court order. But, even in those cases, a call back to a reporter or even a written or taped statement stating just that—I cannot comment due to the ongoing litigation or court order etc.—goes a long way.
So, the “No Comment” rule is certainly not a strict one. There may cases to bend it or even break it, but it’s just something to think about next time you get that phone call or media request.