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The court of public opinion

Parties involved in a legal dispute are often subjected to increased public scrutiny — which can impact reputations and the bottom line. Portland’s Idil Oyman asked three top City lawyers to share their thoughts on how this affects their clients, and the advice they would offer.

Philip Clifford — Partner, Latham & Watkins, LLP

How has your advice to major corporations changed since the rise of social media and other digital platforms which quickly move news and information?

In a ‘hyper-connected’ world, news, views and information — good and bad — travel fast and far, raising a myriad of potential reputational and legal considerations. From the legal perspective, business leaders and boards are increasingly focused on a range of mitigation strategies, including the need to monitor for the abuse of social media platforms and to guard against risks to confidentiality and data privacy. When problems do arise they can give rise to complex jurisdictional issues and practical difficulties in enforcement, so prevention is often far better than cure.

Do you think the press attention to a case influences the outcome of a case or otherwise impacts it?

Public opinion can be a powerful force and is often used as a means to apply pressure outside the legal process. History is the best judge as to the enduring impact of publicity, however, it is sound business practice to coordinate the legal and public relations strategy as part of managing a company’s risk and exposure. Publicity is a strong factor shaping the opinion of stakeholders – no more so than when the company is in the spotlight and engaged in litigation.

The post-financial crisis dissection of the financial services industry has brought a surge of litigation around internal investigations, corporate fraud and regulatory matters. How important is the court of public opinion to banking industry clients?

Regardless of sector, businesses facing criminal investigations or regulatory proceedings should consider the risk of reputational damage as well as the potential sanctions. Unfavourable publicity that damages a reputation or brand can be extremely difficult to reverse, even if the subject is ultimately cleared.
Alex Gerbi — Partner, Quinn Emanuel Urquhart & Sullivan, LLP

You have been involved in one of the biggest disputes to come before the High Court. In your experience, was the legal approach impacted by considerations for the personal and corporate reputation of the parties?

I cannot comment on specific cases, but generally in my experience while the substantive issues and legal arguments are obviously the priority for legal teams, one of the jobs of the lawyer, particularly in very high profile cases, is to be sensitive to the client’s reputation and how the presentation of the case may play out in the public arena. The effective management of such reputational issues can also be a high priority for the client.

There has been significant criticism of the rise of foreign litigation in the English court. What is the future of foreign litigation in the English courts, particularly with the rise of international legal centres like Singapore?

The English courts have historically been and remain a very popular choice for the resolution of disputes involving one or more foreign persons or entities. On the one hand, these cases take up valuable time of the English courts, which are publicly funded. On the other hand, such cases bring a lot of valuable business to the UK and also help to raise the profile of the UK as a global business centre.

Our practice at Quinn Emanuel concerns many disputes with a foreign element and I do not foresee that foreign parties will be less likely to want to litigate their disputes before the English courts. That said, arbitration as an alternative form of dispute resolution continues to grow in prominence and also forms a major part of our practice. The London Court of International Arbitration is increasingly a favoured choice for foreign businesses.

As a result of public pressure, do you think law firms will be under greater pressure to be more selective in representing poorly regarded entities or individuals?

Law firms in the UK must meet stringent professional requirements in taking on any new client and firms are naturally conscious of their own reputation. At the same time, it is a precursor of open justice that all parties should be entitled to be legally represented and should have suitably qualified counsel available to them. A bad reputation should not of itself rule out a party from having access to justice and suitable legal representation. Each firm has to decide where it draws the line.

Do you feel the media play a valuable role when reporting on a legal dispute?

It is a cornerstone of a properly functioning justice system that it is transparent and accessible to the public, and the media plays a key role in that, provided that the reporting is handled responsibly and in line with the professional standards demanded of our press corps.
Shane Gleghorn — Partner, Taylor Wessing

How has your advice to high-net worth individuals changed since the rise of fast moving information through online platforms like Twitter?

There are two factors relating to social media that increasingly impact our work: speed and anonymity.

First, the speed of delivery of legal advice has to match the astonishing speed at which information travels online. Helping high-net worth individuals stop the spread of misinformation requires a corresponding speed of response. Legal teams should accept that online platforms have more freedom than traditional media to spread information, but our clients can expect us to help ensure misinformation will be corrected on these platforms. In this regard, it is important to keep in mind that users of social media are just as responsible for publishing unlawful material as the traditional and mainstream media. So it seems likely that there will be libel actions relating to social media being brought by high-net worth individuals.

Allied to this is the importance of dealing with anonymous criticism on online platforms. The so-called Norwich Pharmacal order has become an increasingly used tactic to seek information from internet intermediaries in order to bring proceedings against anonymous internet critics; for example for defamation, breach of privacy or copyright infringement. In short, in order to protect their reputations, high-net worth individuals require legal teams who can cross borders and drive through anonymity barriers to ensure that misinformation is not spread.

In 2012, the English High Court saw high-profile cases attract immense media attention to the individuals and companies. How important do you think public profile is to the outcome of the case?

It is difficult to measure, but in high profile court cases media coverage can have a dramatic impact. This means that protecting the client’s public profile requires a subtle approach which is mindful that, generally speaking, English civil commercial cases (like the Abramovich matter) do not involve a jury as decision maker. The direct influence of a positive public profile is reduced when the decision maker is a judge — they will consider evidence and legal submissions to determine the case.

That said, negative publicity can cause damage to an individual’s or company’s reputation that can be deployed against them by a clever advocate. For example, although, of course, honesty and transparency in public communications is vital, it is likely to be unhelpful for a client to try to boost their public profile by making an apology which contains admissions that end up being used against them in the court room. Similarly, it is unhelpful for a litigant to make an over-reaching criticism of their opponent that ends up being played back to them in court. Therefore, while it might be said that public profile is unlikely, in itself, to determine the outcome of a large commercial action in England, the parties simply cannot take the risk of ignoring the impact of negative publicity.

Idil Oyman is an Associate Partner, and leads Portland’s Disputes Unit.