September 26, 2016
Focus on Business & the Law

Getting ahead of a crisis

Nathan Fiske
Douglas Radigan, a partner at Worcester law firm Bowditch & Dewey, says in public relations crises, a natural tension builds between lawyers who want to iron out the problems and liability and PR teams seeking to stay ahead of the news cycle.

Nearly three years ago, James Donnelly was contacted by a reporter from the Worcester Telegram & Gazette regarding the Higgins Armory Museum, the venerable, now-defunct Worcester institution whose collection had just been sold to the Worcester Art Museum.

As Donnelly, a lawyer at Mirick O'Connell in Worcester who served as the museum's president, tells it, the Telegram's Shaun Sutner had been contacted by a group of people who were upset about the museum's dissolution and the previously mentioned sale. They claimed Higgins trustees failed to explore alternatives before picking the Worcester Art Museum, and that trustees hadn't tried hard enough to keep Higgins Armory alive.

Donnelly invited Sutner up to his office to chat about the concerns that had been brought forth. During their hourlong conversation, Donnelly said he explained, in detail, efforts made by the trustees to ensure the best possible future for the museum and its collection. He also tipped Sutner off on some activity from the Massachusetts Attorney General's Office and the Supreme Judicial Court.

His transparency with members of the media – and through them, the public – allowed for a fuller, more balanced final story, Donnelly said.

"He certainly made the points the unhappy people wanted to make, but was able to put them into broader context, so people got the whole story," said Donnelly.

When it comes to managing a public relations crisis of any magnitude, there are many legal and communications-related steps a business can take to weather the storm, lawyers and public relations experts said. A crisis in and of itself doesn't mean it's the end of a line for a company – it's how an incident is dealt with that can determine whether a business sinks or swims.

"I can think of many instances when the company went out of business because they weren't prepared to deal with the situation," said David Ball, president of Ball Consulting Group, LLC in Newton, which works with several clients in Central Massachusetts.

Legal protection

Douglas Radigan, a partner at Worcester law firm Bowditch & Dewey, has been involved in crisis management strategy for companies dealing with everything from fatal job site accidents to drug patent challenges.

In a crisis situation, before anyone talks to the media – or, ideally, before information becomes public in the first place – it's important to understand exactly what the facts of a situation are, Radigan said. During the fact-finding process, a lawyer can be helpful because executives can share things they discover along the way because of attorney-client privilege, he said.

"If you take the first initial steps correctly, using an attorney, you can learn the facts of the situation without significant legal risk," said Radigan.

Once the facts are unearthed, the lawyer can help determine what information can be made public under the law. For example, if an employee embezzled money, it's not only important to come clean and present the facts, but it's also necessary to understand the privacy rights of the people involved with the incident.

"If you're careless about what you say, you can violate privacy rights or expose the organization to a libel suit," Donnelly said. "Lawyers play an important role in helping you make the point you want to make, without crossing some red line by revealing information that was private."

A company should designate a spokesperson, so there is a singular voice relaying a clear message coming from the organization, he said. That person should be well-versed on the legal lines he or she needs to stay away from before picking up the phone to call a journalist.

Wrong patient kidney removal

The industry a business falls into can dictate its response scenario, Ball said. Crises are, in general, more likely to happen at a hospital or a manufacturing plant than at a retail store.

In August, Saint Vincent Hospital made headlines after reports surfaced that a surgeon performed a kidney removal operation on the wrong patient. The hospital responded by saying the actual misidentification was performed outside of the hospital and didn't involve Saint Vincent staff. The Department of Public Health said it is investigating the incident.

Erica Noonan, a spokesperson for Saint Vincent's parent company, Tenet Healthcare, said releasing any information relating to the hospital is tricky, because of strict patient privacy laws.

"In healthcare communication, our priority is protecting the privacy of the patient," Noonan said. "We are subject to extremely strict federal [healthcare] privacy laws, as well as public expectations that we will treat patient privacy with the utmost caution, so release of any information is not a simple matter at all."

Lawyers vs. PR team

When crises occur, a tension tends to build up between lawyers who want to make sure the facts and the legal liability issues are ironed out versus the public relations teams that want to stay ahead of the fast-paced news cycle, Radigan said.

"The argument against lawyers is something like we're slow and too plotting in the process, and aren't as concerned with public perception of how a news story may occur, whereas PR professionals emphasize expediency," he said. "There's a balance you need based on what the circumstances are."

Outside of the actual courtroom is an arguably equally important court – the one of public opinion. And in the court of public opinion, you can screw up pretty easily by not taking responsibility for mistakes, or by lying, Donnelly said.

"It's always much better to confront bad or controversial facts right away, and then move on, rather than let the facts dribble out over time, because that keeps the story going from one news cycle to the next," he said.

Don't duck for cover

One of the worst things a company can do when an issue arises – either internally or through the media – is duck for cover, Ball said.

He said the first thing he tells anyone he comes into contact with is to have a crisis plan in place before anything bad comes close to happening. The plan would ideally look at the company's vulnerabilities, in order to assess what can be done in that moment to prepare for or even prevent a crisis. For example, if your building was to burn down, would your insurance plan allow you to open up somewhere else?

Ultimately, a company's success isn't determined by whether or not crises happen – it's how they respond once a problem arises, Ball said.

Not responding, or thinking something will just blow over, is the worst way to respond, he said.

"A number of organizations think problems are going to go away by themselves," he said. "A lot of times their response is 'This is going to blow over. This is not going to be a big deal, and we can make it through this.'"

They're usually wrong, Ball said.

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