Crisis Planning for Uncertain Times in Light of Recent Executive Orders

Jennifer Carr: Welcome to this week’s episode of On Record PR, where we dive deep into the strategies and insights that matter most to law firm leaders. I’m Jennifer Simpson Carr, and I am here with Gina Rubel. Good morning, Gina.

Gina Rubel: Good morning, Jennifer. We’re laughing because we’re in the same room, but we’re not going to be talking about laughing matters. We’re coming to you from Legalweek up in New York City, and it’s really interesting because the energy is a little palpable. Isn’t it? So, if we look at each other, that’s why.

Jennifer Carr: Today is Monday, March 24 we’re joining you from Legalweek in New York City. As Gina said, the feeling is a little bit heavier than I ever remember at a conference around tech that is so energized and, you know, excited about innovation and what’s coming in the legal industry. So today, we’re going to be talking to you primarily about the executive orders that have come out. They seem to be coming out right before the weekend. We’re also going to dive into the crisis communication strategies that we’re working on with our clients to help them prepare for what we anticipate might be coming down the pike. Though, at this point, it’s anybody’s guess.

Gina Rubel: This one’s going to be fast and furious, folks, because we want to get down to the conference. We’re also going to provide some information from the conference, so keep an eye on our various content channels. That being said, it’s really important that we address the elephant in the room.

Jennifer Simpson Carr: Gina, the latest executive order was issued on Friday, March 22. It was titled, “Preventing Abuses of the Legal System and the Federal Courts.” It specifically names Mark Elias and his firm, which, until this point, it’s been Big Law and mentioned other Big Law firms, and now we’re talking about a DC-based firm that is 15 partners and maybe 50 attorneys. So what’s the feeling?

Gina Rubel: The feeling is that nobody’s safe, and everybody needs to prepare. I think it’s important to realize that this is a game changer, and there’s a reason why the current administration puts out these executive orders late day on Fridays. This is actually a strategic tactic. It’s a tactic that, even in public relations and crisis communications, we use, so we’re very familiar with it. But it causes stress, right? It minimizes, or it’s supposed to minimize, the play from the media, because people don’t work 24/7.

But if you talk to any of our colleagues, especially in the legal media, they know legal journalists are working around the clock. So that’s not going to stop our colleagues from talking about this. However, law firms are not supposed to be working on weekends, right? We’re supposed to have a, I don’t know, work-life balance that doesn’t exist these days. But, what’s happening is everybody’s scrambling on the weekend. Now it’s creating panic. This is an this is a tactic, right? Which means that with a crisis, you know, planning in advance is super important.

Jennifer Carr: Before we dive into the planning itself, let’s talk for a minute about some of the language used in this latest executive order. I’ll read just a quick excerpt.

“I hereby direct the Attorney General to seek sanctions against attorneys and law firms who engage in frivolous, unreasonable, and vexatious litigation against the United States or in matters before executive departments and agencies of the United States.”

Gina, as we were preparing, we were picking apart the language used. What are your thoughts?

Gina Rubel: Well, it’s interesting, “frivolous” actually has a very specific definition and can be proven factually. The second word was “unreasonable.” Who defines unreasonable? What does that mean? I’m pretty sure that there’s no real legal definition of unreasonable. I have to go back and look, I could be wrong. But then you get into vexatious, which kind of means the same thing as frivolous, but it goes a little bit more into it. Do you have the definition up?

Jennifer Carr: It refers to something that is, “intended to cause annoyance, frustration or distress. In legal terms, it describes actions such as lawsuits or legal motions that are brought without sufficient grounds, often to harass or burden the opposing party rather than resolve a legitimate dispute.”

Gina Rubel: It’s pretty interesting, right? That’s basically what they’re doing. The administration is doing that very same thing. So, folks, if you’re answering it, and I’m not giving legal advice, but I would say that these are pretty vexatious accusations against law firms.

Jennifer Carr: We’ve been very busy as an agency, supporting our clients with, first of all, understanding what all of these mean and how they impact firms and attorneys, but also planning for what might be next. So can you walk us through how we’re responding to clients when they are calling us and saying, “what do we do next?”

Gina Rubel: I want to go there, but I want to mention something as well. The chairman of Paul Weiss, and I’m going to pull up the statement, and I want to mention this, and it goes into my answer to your question, Jenn. According to American Lawyer Media’s Law.com International, Paul Weiss chairman said, “It was very likely that our firm would not be able to survive a protracted dispute with the administration.” That’s really sad, but I think we have some data that supports that decision and why they made the decision they did.

Jennifer Carr: It’s interesting. For example, one of the attorneys representing Perkins Coie actually was quoted in CBS News saying that 25% of Perkins Coie’s work is government-related. So unfortunately, we’re in a situation where something like an executive order could cripple a law firm.

Gina Rubel: And, the reason why I want to bring that up is because every firm has to make a decision based on their own best interest. However, I really do believe that if law firms don’t have that data about the 25%, other law firms are making a decision about whether or not they’re going to sign the amicus brief or how they’re going to address this. So that makes sense, right? If it is 25% Perkins Coie’s business, way too many people will be losing their jobs.

So, Paul Weiss made a strategic decision and shared the reason. And I think that’s important because while I don’t like their decision, from the perspective of how many other law firms may see this as a template for how they’re going to respond. It was also was in their best interest, and that’s why he said that.

I think that’s a smart communications move, that transparency. It doesn’t make it any better because, basically it’s, it feels like blackmail. Okay, I’m just saying it feels like blackmail. And for the lawyers listening, you know why I’m saying feels like and not is because that could turn into defamation. But it’s what it feels like. There’s a perception there. To go back to what law firms should be doing if you don’t have a strategic crisis plan, if you didn’t create one after COVID, at least create some plans on how to address potential orders that might come down against you or your colleagues. Scenario planning is key. We’ve talked about that on many of our podcasts. What does that mean? Well, it means, what if an executive order comes down this Friday on XYZ, because we represent, or somebody who was here in the past has represented, and then that’s what a scenario looks like.

You have to know who your rapid response team is, or we can also call that incident response team or crisis response team, all the same. Who is on that? Obviously, it’s your EC. It absolutely, 100% should involve your senior-level marketing and comms professionals. Too many times, executive committees leave out their crisis comms people who have to do the work if a statement has to be issued. So that’s, you know, in your in-house counsel, outside counsel, make sure that the law firm that represents you, your outside counsel, is willing to speak to the media if you want them to issue a statement on your behalf. Although I don’t think that’s in anybody’s best interest right now, either.

I think, you know, having the chairman of the firm or the managing partner of the firm do it is going to be really key right now. Have your preemptive messaging ready.  Know who the reporters are that you want to be contacting. Have their contact information, you know, get their cell phones. And there are ways to do that, and you know this isn’t about sales; I’m not here to sell you a PR firm. If you can’t afford a PR firm, call me, email me, or email one of my colleagues. We’ll tell you who you need to have on your list. This is not a time for us to be competitive. It’s not a time for us not to be helpful, right?  Yes, we get paid for that. But at the end of the day, if you’re a small firm and you need to have that information because you’re fearful, I will happily put you in touch with our colleagues in the media.

So, Jenn, some of the other things are having your thought leadership and knowing who you’re going to be talking to. As I said, know how you want to be perceived. How are we going to handle these things? And it changes from day to day. We know that. But you could, again, have scenarios ‘if this, then that,’ and we did that; by the way, folks in law school, we do ‘if this, then that’ all the time when we’re preparing anything from how we want a transaction to play out to how we want litigation to play out. Know what your risks are, and be prepared to mitigate those risks.

What I like to call litigation readiness. You need to be ready to litigate. You may even have some preemptive language ready to get into responsive filings if you’re going to respond. And again, I’m not going to give legal advice. It’s my understanding, like on the EEOC letters, that I believe that I’ve read this and that you don’t have to respond. But we’d have to talk to the proper attorney on that. That’s not an area I’ve ever practiced in. But really, another really important thing is internal morale, your professionals in your firm, from the person in the mail room and the library and the people at the reception desk to your most senior executives, people are not comfortable right now we saw what Rachel Cohen did at Skadden.

Shout out, Rachel. You are an associate hero in the industry, and you’re a brave woman. I am really proud to see someone standing up for themselves and their colleagues and what they believe. But the other thing is, Jenn, even legal professionals from every level in law firms are afraid even to say on LinkedIn, for example, “This is how I feel.” Even if it doesn’t reflect the position of the firm, because they’re afraid they’re going to lose their jobs. And I’m hearing that daily. The question is whether or not a law firm lets somebody go for speaking out in their own First Amendment right. Is that going to cause those law firms to end up with retaliation lawsuits? So, I say this often, and for those of you who don’t like the word, I just don’t have another cliche to say. You’re damned if you do. You’re damned if you don’t. It’s catch-22 for law firms right now.

Jennifer Carr: Let me ask you a follow-up question on the internal piece because what’s been interesting in reading a lot about what’s transpiring is, what are your thoughts on a scenario plan for a disgruntled employee or someone who has been let go, potentially being a whistleblower?

Gina Rubel: Well, these are the types of scenarios that law firms, especially big firms that have crisis plans, should already have in place. It’s a typical scenario. We see this all the time. That scenario is nothing new. So, if you haven’t planned for the past, you should be planning for it now. You know that’s really important.

Jennifer Carr: Do you have any parting thoughts before we conclude the episode?

Gina Rubel: What’s most important that you are planning for what could happen to your firm. You need to be evaluating all your matters. If you are a firm that we call and forgive me, but this is true, like a ‘hotel for lawyers,’ where you’re a decent-sized firm andall the practice areas work on their own. They bring in their own matters. You don’t have a CRM. You really need to be asking questions like, “Who are our clients? What are our risks?”

You need to be talking to one another. This is another great reason why law firms should have CRMs. Because somebody should be able to pull all that data and say, “These are our clients. These are all the risks. This is the pro bono work we’ve done. This is our DE and I programming. This is where our risks lie,” and be able to start planning scenarios under those risks. But most importantly, keep your heads up. We’re going to work through this as an industry. There are many people who care about the industry, and we want to see it survive. Certainly, I do as a third-generation lawyer in my family. But know that we’re going to keep coming to you with resources that help through this unprecedented time.

Jennifer Carr: Thank you. Thank you to our listeners for tuning in. Thank you for submitting questions. They’ve been incredibly helpful as we think about content to bring to you that is going to provide you with insights that you need to do your job effectively and maybe have different perspective than you’re thinking of on your own. If you’ve enjoyed this episode or any episode that you’ve listened to, please consider leaving a review on iTunes; it helps boost our show. We will see you next Monday.