Litigation Communications: Privilege and Rule 3.6 Basics

Litigation communications is the work of managing what a company says publicly while a lawsuit is pending, so that statements protect its reputation without damaging its legal position. Three rules shape the work: lawyers face limits on trial publicity under Rule 3.6, communications with a PR firm are not reliably covered by attorney-client privilege, and any public statement can later be used as evidence. This guide explains each rule and sets out a working process.

Updated November 10, 2026. This is communications guidance, not legal advice. Counsel should review every statement about a pending matter, and rules differ by state and court.

In short:

• Counsel leads. The PR plan serves the legal strategy, and no public statement goes out without a lawyer's review.

• Courts have split on whether a PR firm's communications are privileged, so a company should assume they may be discoverable.

• A company can usually state its position, correct facts and explain what it is doing for customers, while staying away from evidence, witnesses and settlement talks.

What is litigation communications?

Litigation communications is the public-facing side of a legal dispute: statements to customers, employees, investors, partners and reporters while a case is open. It differs from ordinary crisis communications because a second audience is always reading. Opposing counsel, the judge and potential jurors can all see what a company says, and a careless sentence can contradict a court filing. The first job is to make sure the communications plan and the legal strategy say the same thing.

What limits apply to lawyers' public statements?

Lawyers who participate in a case are barred by Rule 3.6 of the ABA Model Rules from making out-of-court statements that they know, or should know, will be publicly disseminated and have a substantial likelihood of materially prejudicing the proceeding. Most states have adopted a version of the rule, and the wording varies. The rule exists to balance a fair trial against free expression.

The rule has two features that matter to communications teams. First, it allows a lawyer to state basic information, such as the claim or defense, and to make a statement a reasonable lawyer would believe is required to protect a client from undue prejudice caused by recent publicity the lawyer or client did not start. Under that right of reply, the statement must be limited to what is necessary to mitigate the adverse publicity. Second, the rule was revised after the U.S. Supreme Court decided Gentile v. State Bar of Nevada in 1991, which addressed vagueness in the earlier standard.

The practical effect is that a company's lawyers may be more restrained than the company's spokesperson. That gap should be agreed in advance, so a communications lead does not draft a statement the outside counsel cannot support.

Are communications with a PR firm privileged?

Communications with a PR firm are privileged only in narrow circumstances, and courts have not agreed on the rule. A company should plan as if discussions with a PR firm could be requested in discovery or by a grand jury.

Two federal decisions from the Southern District of New York frame the debate. In Calvin Klein Trademark Trust v. Wachner, 198 F.R.D. 53 (2000), the court held that communications with a PR firm retained by counsel were not privileged, because the firm provided ordinary public relations advice rather than help the lawyers needed to give legal advice. In In re Grand Jury Subpoenas Dated March 24, 2003, 265 F. Supp. 2d 321, the court reached a different result for a PR firm hired by a grand jury target's lawyers, finding that communications made to help the lawyers give legal advice were protected. The text of that opinion is available from Justia.

Later decisions have treated the second ruling narrowly. One summary by a law firm describes a court calling it a very narrow holding tied to a high-profile grand jury context. The table shows how the two lines of cases differ.

SituationResult in the cases abovePractical takeaway

PR firm gives general reputation and media adviceNot privileged (Calvin Klein, 2000)Treat these communications as discoverable PR firm hired by lawyers to help them give legal advice in a high-profile investigationPrivileged in that case (Grand Jury Subpoenas, 2003)Have counsel retain the firm and define the legal purpose in writing PR firm hired by the company, not by counselHarder to protectDo not assume any protection

Two habits reduce risk. Counsel, not the company, should retain the firm and write down why its work helps the legal advice. And the team should keep the circle small and put sensitive legal analysis in conversations with lawyers, not in emails with the PR firm.

What can a brand say publicly during a lawsuit?

A brand can usually state its position, correct plain factual errors and explain what it is doing for customers and employees. It should hold back anything that could affect evidence, witnesses or settlement. The table is an editorial checklist, and counsel decides the final wording.

Usually safe to sayHold unless counsel approves

The company is aware of the lawsuit and intends to defend it, if that is the decisionComments on the strength of the other side's evidence Confirmed facts that appear in public recordsStatements about witnesses, jurors or the judge What the company is doing for customers and employees in the meantimeSettlement discussions or numbers Where updates will appearCharacterizations of the plaintiff's motives Corrections of factual errors, with documentsAnything that differs from a court filing

What process should a company follow?

A company should follow a seven-step process that starts with counsel and ends with a record of what was said. The steps below are Virgo PR's working method.

• Meet with counsel and agree what the company will and will not say publicly.

• List the audiences: customers, employees, investors, partners, regulators and reporters.

• Name one spokesperson and one approver, with a lawyer in the chain.

• Draft a holding statement and answers to the five hardest questions, and have counsel clear them.

• Monitor coverage and social posts about the case, and log what each audience is saying.

• Plan for each court date and ruling, with statements prepared for either outcome.

• Keep a dated record of every statement, with its approver, so the company can show consistency later.

The crisis communications plan template has fill-in sections for the team, approvals and holding statements, and the spokesperson preparation is covered in the guide to media training for executives.

How should a company talk to employees and customers?

A company should tell employees first and give them one short, approved statement, because employees are asked about the case by customers and friends. Customers need to know what the case means for them: whether service continues, whether any money or data is involved and where to find updates. The statement should not argue the case. For public companies, statements about a lawsuit may also carry disclosure duties, as the guide to the SEC Item 1.05 disclosure clock shows for one type of event.

What mistakes make litigation communications fail?

Litigation communications fails when the public message contradicts the legal position or tries to win the case in the press. Five mistakes appear most often.

• A statement that differs from what the company's lawyers said in a filing.

• Commenting on evidence, witnesses or the judge.

• Letting an executive speak without review, on social media or in an interview.

• Emailing sensitive legal analysis to a PR firm.

• Making public promises about outcomes the company cannot control.

When does a company need a litigation PR firm?

A company needs outside help when the case is likely to be covered by reporters, when customers or investors are directly affected, or when the internal team cannot absorb the volume of inquiries. The firm should work through counsel, explain how it handles privilege, and show linked examples of past work with the legal limits described above. The crisis PR guide explains when to bring in an agency, and the public relations services page lists Virgo PR's related work.

The decision to act on: before anything is said publicly, agree the message with counsel, name the approver and write down the purpose of any PR firm's role.

Frequently asked questions

What is litigation communications?

It is the management of a company's public statements while a lawsuit is pending, so that its reputation is protected without harming its legal position.

What is Rule 3.6 and how does it affect PR?

Rule 3.6 limits public statements by lawyers in a case when the statements are likely to prejudice the proceeding. It allows a limited reply to publicity the lawyer or client did not start. It affects PR because the company's lawyers may be more restricted than its spokesperson.

Is a PR firm covered by attorney-client privilege?

Sometimes, but not reliably. A 2000 decision found no privilege for ordinary PR advice, while a 2003 decision protected a PR firm hired by lawyers to help them give legal advice. Later courts have read the 2003 ruling narrowly, so a company should assume its PR communications may be discoverable.

Should a company comment publicly on a lawsuit?

Often it should say something brief, such as that it intends to defend the case or that service continues, but only after counsel agrees. It should avoid commenting on evidence, witnesses and settlement.

Who should approve statements about a lawsuit?

A lawyer on the case should approve every statement, alongside a senior executive and the communications lead.

How is litigation communications different from crisis communications?

Crisis communications aims to protect trust quickly. Litigation communications adds legal limits, because the audience includes opposing counsel and the court, and a statement can become evidence.

Cases and rules named above are real and can be checked in the cited decisions and in your state's rules of professional conduct.