Why Communicators and Lawyers Must Work Better Together, by Tony Jaques
Recent research shows some communicators and lawyers still don’t trust each other, especially in the pressure-cooker environment of a crisis. The result can be conflicting advice to management, leading to poor decisions and reputational damage.
The conflict between what’s legally permissible and what society thinks is right was starkly on display when mining giant Rio Tinto decided to exercise its legal authority to blow up a 46,000-year-old aboriginal heritage site to expand the iron ore mine in Western Australia’s Pilbara.
Just two weeks ago, CEO Jean-Sebastien Jacques told a Senate inquiry into the Juukan Gorge debacle the destruction of the historic rock shelters “should not have happened” and the company “are really sorry.”
Setting aside for a moment the cultural importance of the site, the question should be who was leading the discussion between lawyers, communicators and mine staff, and who was taking care of reputation.
It’s hardly a surprise that lawyers and communicators may disagree, and my new book Crisis Counsel (see below) identifies the areas most prone to disagreement:
- The clash between liability and responsibility – when the organisation needs to step forward, even when it might not be clear who was responsible for the crisis.
- Why and how to apologise – to genuinely admit fault and avoid legalistic non-apologies which may be worse than no apology at all.
- Product crises – balancing public risk from a faulty product against the cost of a recall.
- Defending patents and trademarks – when over-zealous litigation might look like bullying.
- Marathon legal proceedings – when prolonged pursuit of some legal principle puts reputation at risk.
In each of these areas – and more – conflicting legal and communication advice can create a crisis or make a crisis worse. There are scores of examples where executives did the right thing in the face of legal advice – like the CEO of BP America after the notorious Huntington Beach oil spill: “Our lawyers tell us it’s not our fault, but we feel like it’s our fault and we are going to act like it’s our fault.”
Or the owners of the Alton Towers Theme Park in England following a devastating roller-coaster accident: “Our immediate response and subsequent actions were driven by a desire to do what we believed was the right thing by all those affected by the accident. We didn’t try to hide behind lawyers.”
Sadly, I also record many cases where management seemed to get it wrong. For example when lawyers for Mountain Dew defended a claim of a mouse-in-a-can by lodging documents saying the drink was so acidic it would turn the little rodent into jelly. Or when McDonald’s launched personal legal action against protesters opposed to a fast-food outlet at Tecoma, outside Melbourne. Or when KFC threatened a country hotel in England for advertising its traditional Christmas dinner as a Family Feast. Or when global pharmaceutical companies got locked in a high-profile dispute with the government of South Africa over the legal status of desperately needed AIDS medication.
All were cases where someone needed to ask: Is this the right thing to do? Which brings us back to Rio Tinto and the CEO’s response to the destruction of rock caves in the Juukan Gorge.
A recent international survey of lawyers said the best way to address conflicting advice in a crisis is for lawyers and communicators to work better together and to understand and respect each other’s roles. But it also reminded us that ultimately, senior management need to make the right decision in the best interests of the organisation as a whole.
Tony Jaques is Director of Issue Outcomes Pty Ltd, for people who work in issue and crisis management.