Bad things can happen at universities. When they do, the university’s legal interests are not the only things at stake. Issues of liability and damages often pale in comparison to the university’s reputational interests. A university viewed by the public as dangerous, uncaring, untrustworthy or irresponsible is likely to face difficulties in attracting students, faculty and financial support. A strong reputation built over decades can be tarnished overnight.
When allegations of misconduct are made, a lawyer’s normal instinct is to move deliberately and confidentially in fact-finding. But under the white-hot glare of the media spotlight and with the 24/7 news cycle, there will be immediate pressure for a university to respond to the allegations and either rebut them or place them in context. A university’s failure to publicly and promptly engage the facts may lead to a quick and irreversible “conviction” in the court of public opinion.
To work effectively with your institution’s legal counsel, you need to understand the interrelated legal and public relations issues that counsel can expect to face when the media storm blows its gale winds onto campus.
Consider common advice and its limits
Much has been written about how universities should prepare for and “manage” public crises and deal with the media. The following principles are often cited:
- Make advance preparations for the inevitable arrival of some form of crisis, even though the exact nature of that crisis cannot be foreseen. Universities should ideally form a standing crisis-management team, allocate responsibilities, and engage in regular training.
- As part of their preparations, universities should establish and maintain working relationships with relevant media outlets and first responders.
- Train administrators, deans and department chairs to refrain from public comment on controversies and to refer media to the designated university spokesperson.
- As a crisis unfolds, you can expect that the media will become increasingly aggressive if the matter has sensational appeal. A university needs to prepare staff to professionally rebuff media attempts to obtain leaks or confidential information.
- Voice compassion for victims, and apologize for undeniable wrongdoing.
- Do not attack the alleged perpetrators or claimed victims unless confident of their wrongdoing.
- Investigate the facts as quickly as possible and disclose initial findings in which the university has a high degree of confidence.
- To the extent possible, get all the bad news out at once and make an effort to keep releasing good news.
- Be proactive in shaping the university’s message.
- Avoid “no comment” responses or their equivalents once a crisis gains steam. Even an update of previous information and a reaffirmation of the university’s values are better than “no comment.”
- Avoid perceptions (and certainly the reality) of a “cover-up.”
- Formulate a plan to prevent a repetition of the crisis, and announce that plan.
- Qualify all public statements as based on “the facts currently known” to preserve credibility if those facts prove wrong.
- Treat media representatives politely and with sensitivity to their deadlines and challenges. Reporters are human, and they cannot help but be affected by how they are treated.
- Do not attack the media.
These are useful guidelines. But there are circumstances in which some will conflict with others and in which experienced legal and PR practitioners would recommend different approaches. Some controversies are passing ripples, while others are tsunamis. It takes great experience to distinguish the two at the outset and to formulate the appropriate PR response. There is no single PR roadmap that fits every type of controversy.
Universities face special difficulty in conveying their message during a crisis because of the legal restrictions involving privacy and due process (discussed in next month’s installment) that to some extent will handcuff a university in its public communications.
Because of their revered status in most communities, universities are also expected by the public to satisfy a higher moral standard than others. Yet when wrongdoing is alleged, people at universities may act selfishly or seek to shift blame. Many journalists are eager to find opportunities to dethrone community icons and expose hypocrisy. All of these factors present an especially challenging PR environment at universities that find themselves under media siege.
Choose a spokesperson for litigation-related matters
Sooner or later, most colleges and universities will face a significant crisis. When that crisis does arrive, one of the first tasks is for the institution to select an authorized spokesperson suitable for the circumstances. We recommend selecting both a primary and secondary spokesperson, as the crisis-response effort may continue on a 24/7 basis for weeks or longer.
The best PR practice dictates finding a spokesperson who combines both clout and relevant knowledge. That could be a president or provost, thereby demonstrating to the public that the university takes the controversy seriously and that a leader is in charge. The best legal practice, however, is to avoid using high-level administrators as spokespersons. If their statements ultimately prove incorrect as more information is gathered, the university may be viewed more harshly by a court or jury in evaluating (a) the university’s credibility for all purposes, (b) the university’s satisfaction of any applicable duties of care, and (c) claims for punitive damages.
A key consideration is to select a spokesperson who has good presentation skills, an ability to think quickly on his feet, the fortitude to weather the entire crisis cycle, and the mental discipline and stamina to avoid making careless remarks that may pour fuel on the fire. It is not good practice to change the spokesperson in midcrisis because of the discontinuity and defeatism that suggests.
Often, the university’s general counsel will be a prime candidate for the spokesperson role. When a crisis has a significant legal dimension, counsel will often be the best qualified to explain to the media (on or off the record) why a decision was made.
However, a general counsel’s interactions with the media may be limited by the ethical rules governing attorneys. Most states’ ethics rules limit attorneys’ statements to the media when litigation is underway or expected. These rules were originally developed to preserve a fair trial for all parties since attorneys were considered to have more credence with the public.
In most states, the ethics rules governing attorneys prohibit an attorney who is participating in an investigation or litigation from making an out-of-court statement that the lawyer knows (or reasonably should know) will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing a legal proceeding in the matter.
From a PR perspective, once a crisis gains steam, it is deadly to respond to media inquiries with “no comment” because that immediately kills the perception of candor. Thus, an attorney-spokesperson must balance the ethical requirements with good PR practice and presentation skills. An attorney-spokesperson is attempting to persuade an audience much larger than any courtroom could hold.
Fortunately, the ethics rules leave significant room for attorneys to communicate with the media. Under most states’ rules, an attorney may state information contained in the public record, reveal that an investigation of a matter is in progress, and issue a warning of danger concerning the behavior of a person involved when there is a reason to believe that there exists the likelihood of substantial harm to an individual or to the public interest. In a criminal case, an attorney may also state the identity, residence and family status of the accused; information necessary to aid in the apprehension of a person; the fact of an arrest; the identity of the investigating or arresting officers or agencies; and the length of the investigation.
Most importantly, under most states’ ethics rules, a lawyer may “make a statement that a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer’s client,” provided that the statement is limited to such information as is necessary to mitigate the recent adverse publicity. In other words, an attorney may communicate to the media defensively to rebut adverse publicity.
Regardless of who is selected as “spokesperson,” the crisis team should take steps to prevent inconsistent messaging (and ideally all messaging) from other university leaders. Inconsistencies suggest confusion, ineptitude, dishonesty or a cover-up. As one experienced university attorney told us, it is critically important for university officials to “stay in their lane” when dealing with public controversies.
Caution should also be exercised when speaking to the media “off the record” or upon a request that a statement not be attributed to the spokesperson. A well-seasoned PR practitioner should be consulted about the potential risks and outcomes of such communications.
Next month: Review what information your institution cannot legally disclose in a crisis — and what information officials are compelled to disclose to be compliant.