Page 24 - CCCA Magazine Winter 2017

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“ a crisis has an element of surprise. The best thing we

can do as counsel is to help minimize surprises. in
managing the crisis, the questions are ‘What did we
do?’, ‘What do we do now to minimize exposure? ”
Wendy Law, Deputy City solicitor, City of Mississauga

Planning Makes Perfect as management discussions. In the U.S., there was a company
Every organization needs a crisis management plan. In-house that had a data breach and the courts found the investigative
counsel are in a unique position to be placed on the crisis man- reports were protected under privilege because there was a team
agement team due to their skills, expertise and relationships to investigate and a separate team advising management [Tar-
built across different departments in the organization. A stan- get's investigation of its 2013 data breach]. You want to regu-
dard will include media talking points, a clear list of action tasks larly preserve client privilege.”
for each team member, and a list of whom to notify and when. While you may not know when the next crisis will strike, you
“You want to get inserted into the crisis management plan— can work to create contingency plans for some common situa-
or convince your organization to create a plan if there isn’t one,” tions, such as severe weather or product recalls. Friedman warns
says Law. “You’re building the value proposition. As counsel, we that most teams neglect getting feedback from other departments.
can help our organization navigate through crises and formu- “You need communications expertise,” says Friedman. “They
late action plans. There may be possible litigation but you might would have a different list of categories, like someone saying
want to preserve our rights or we want to be the plaintiff.” something online would be higher up the list. For example, a
In creating the crisis management team, you want to have toy company is always thinking about children getting hurt.
contingency plans in place. Some crisis events, such as the dev- Communications people might ask about consumers saying
astating hurricane that hit Puerto Rico, can go on for months. something about the product online that could spread like
“All crisis management plans need to have backups, includ- wildfre. Part of your plan is to deal with all your stakeholders.”
ing people for yourself,” says Law. “The Fort McMurray fres was What happens when the CEO is in the centre of the contro-
a crisis that lasted a long time. When there’s natural disaster, it versy? Shortly after the Equifax scandal broke, Richard Smith re-
can last a long time but no one can last 24/7 indefnitely. You signed from the company, joining the Chief Security Offcer and
need to pull people off and on and assume different positions. the Chief Information Offcer. Meanwhile, the Harvey Weinstein
You need to think of having someone as a backup for you.” controversy threatens to engulf board members of the Weinstein
The frst step in crisis management is to recognize there’s a Company, from which at least fve board members have resigned.
crisis. Every organization needs clear guidelines on what consti- Board members need crisis management training.
tutes a crisis. When you are determining whether there’s a crisis, “There is a particular kind of crisis where you need more
Law suggests going through the facts while keeping communi- than board oversight,” says Friedman. “There can be a crisis
cation lines open with the public. [and] the board is having to step into a really diffcult prob-
“You need to know who is able to pull the trigger and say lem. Someone on the board will be trained on that and there
what’s a crisis,” says Friedman. “A lawyer may be the one to should be a subcommittee deeply involved in the crisis, more
pull the trigger or it could be someone in operations. If you’re than the general way. There may be a particular crisis where
the sole lawyer at a company, you can’t have only one per- the members of the team might be gone, so you need to think
son to pull the trigger. Maybe you have a frst choice and then about backups.”
backups. Maybe you have the chair of the board. It should be “Training is so important, especially for boards. They may
someone who can trigger or say this situation isn’t reaching have to step out in front and reporters tend to ask questions out
the level of a crisis.” of the blue. If they’re not part of the legal or communications
Another key trend in crisis management is the speed and strategy, they won’t know how to answer the questions. You’ll
amount of communication between organizations and the pub- need a FAQ and have training or it can be problematic.”
lic. The most common issue for in-house counsel about com- Whether a crisis involves board members, employees or even a
munication during a crisis is protecting privilege. Friedman says single viral video online, in-house counsel want to be indispensable
counsel should be fexible in communicating to the public and members of the team. The key is to think it out and be prepared.
have separate investigation and legal advisory roles on the team. “In-house counsel have a pretty good handle on whom to
“Communications are going to argue with Legal about pro- draw upon,” says Friedman. “They interact with different people
tecting privilege,” says Friedman. “You need to sit separately in different ways and have particular insights on how depart-
with PR people and not worry about that discussion being ments work. Good in-house counsel will know what’s going on
disclosed. You want to keep privilege in mind when you create in every department. That’s the reason why they’re so crucial.” ❚
separate channels. You can’t copy and paste and say something
is privileged. That will not uphold in courts and will be counted Julie Sobowale is a writer and journalist based in Halifax.

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