On/Off the Record

How to finesse two tricky
situations in media interviews

Avoiding the press entirely is rarely the best option. The benefits of talking to the press include exposure in the marketplace, third-party credibility (an implied endorsement of your expertise), and -- most important -- the opportunity to present a fair and accurate picture of sensitive matters that otherwise might be misunderstood.

In terms of diplomacy, there are two tricky areas that you should understand before you meet the press:

• How to decline to comment, when declining is necessary, without seeming evasive
• When, if ever, to comment off the record

No comment
To an inquisitive journalist, "no comment" is a red flag that signifies evasion. Some interpret it as code for "guilty as charged." The same is true for media audiences. According to a 1993 study conducted by New York-based PR firm Porter Novelli, when a company spokesperson declines to comment in a "controversial situation," about 65 percent of Americans think the company is guilty of wrongdoing.

If you cannot answer a question, make sure the reporter understands why, and you'll be treated more sympathetically. (See sidebar, "Limits on Publicity During an Investigation, Dispute, or Lawsuit.")

In spring of 2005, Atlanta-based law firm Powell Goldstein fired one of its attorneys, Richard W. Merritt, for authoring a book titled Secrets of a Gay Marine Porn Star. When the Fulton County Daily Report asked the firm's managing partner James McAlpin to comment, he knew his response might be quoted all over the legal press and daily news outlets. After seeking guidance from the firm's outside PR adviser Jaffe Associates, McAlpin said: "I wish I could more freely discuss the circumstances surrounding Rich Merritt's departure from our firm but, as lawyers, our firm feels bound by the confidentiality." Doesn't that sound more endearing than "no comment"?

Here are some more ways to diplomatically decline to comment:

• I'd like to help you, but you understand I would be violating my professional ethics (or client confidentiality) if I were to discuss that with you.
• Sorry, that's proprietary information. If we divulge it, that will only help our competitors.
• Out of respect for our employees, we don't disclose personal information about them.
• I'm sorry I can't answer your question because this matter is the subject of a pending lawsuit.
• That information is not available in the form that you need. Unfortunately, because it's pretty voluminous, we don't have the staff available right now to put it together in the way you need it.
• It's premature to comment, but I can probably give you the information you seek on (date).
• Our policy is not to comment on rumors or speculation.

Regarding that last item: Some PR people might advise you to deny rumors that you know to be false. But that can get you into deep trouble. If you deny rumors that are false, and then you're faced with a rumor that happens to be true, how will you respond to the one that's true? For example, consider the following interview:

Q: Sir, it's been alleged that you are addicted to cocaine.
A: That is not true.
Q: What about reports that you assaulted a police officer?
A: That absolutely has no basis in fact.
Q: Well, is it true that you embezzled funds from your son's Boy Scout patrol?
A: That's a scurrilous lie.
Q: How about allegations that you collect child pornography?
A: No comment.

You can see that it's best not to comment on any rumor, ever.

In general, your diplomatic equivalent of "no comment" should be as conversational as possible. Employ what Chicago attorney Dan Boho calls a "flesh-and-blood response, rather than a Styrofoam [processed] response." Compare the following:

• Styrofoam: We are unable to present an accurate response until we have an opportunity to review the report thoroughly.
• Flesh & blood: I haven't read the report yet, so I can't answer your question now.

Some PR professionals advise that you should "bridge" to a positive statement after you decline to comment. For example: "I can't answer your question because..., but I can tell you that...." The ensuing positive statement is what they call a "message point," which you prepare in advance. It takes some skill to bridge without appearing to change and evade the subject.

Off the record
There may be situations where you would like to explain something off the record to a reporter to gain his or her confidence, or to put into proper perspective the information that is on the record. (Frankly, some people like to say "off the record" to a reporter so they can feel like big shots.)

Unless you have a lot of media relations expertise and have established strong trust with certain reporters, you should assume that everything you say to them is on the record. Some journalists don't have the integrity to honor an off-the-record agreement, and some get so sloppy under deadline pressure that they simply can't remember what is and isn't on the record.

There are a couple of variations of "off the record" that you should know about: (a) "not for attribution" and (b) "on background." Be careful, because this is dangerous territory if you are not media-savvy. Any misinterpretation of these terms could prove injurious to your firm or clients.

"Not for attribution" means you are divulging information to a reporter on the condition that the reporter (a) may not identify you as the source, or (b) may disseminate the information only if he or she finds another source to confirm it on the record. The purpose of not-for-attribution disclosure is to put the reporter on the right trail. This arrangement gets tricky when the reporter wants to put the information that you divulge in an article or on the air, and attribute it to "a source familiar with the case" or "a lawyer who agreed to talk to us on condition of anonymity." How specific can the reporter be when citing the anonymous source? Can the reporter say, for example, "...according to a senior partner with the XYZ law firm who practices in the area of securities fraud"? That gets awfully close to actually identifying the individual. To prevent that from happening, you must reach an agreement with the reporter as to exactly how he or she will refer to you as the anonymous source, before you divulge the information.

Another variation of "off the record" is "on background." If you tell a reporter something on background, that means the information should not be used in the story at all. John Cosmides, a San Francisco-based marketing consultant who serves law firms, offers this example:

In explaining a legal term to a reporter, an attorney may refer to one of his cases to shed light on the meaning. If he and the reporter agree that the reference to the case is being used on background, the reporter will not use any of that information in the story.

If you give a reporter information on background, and the reporter digs up that same information from another source, of course he or she is free to use it in a story, as long as it's not attributed to you.

Be aware that if a reporter makes an off-the record deal (or either of its variations) with a source, and the published story later becomes the subject of an investigation or dispute, a court may order the reporter or the media outlet to divulge sources. Some reporters (and/or their editors) will go to jail to keep their end of the bargain and protect their sources, but some will spill the beans -- and rat out their sources -- at the first hint of a court action.

Each jurisdiction has rules that limit extra-judicial speech. Judges can further limit what you can say to the media about a given proceeding, based on the need to ensure the fairness of the proceeding and avoid "poisoning" the jury pool. Additionally, the American Bar Association and many state bar associations have ethics codes that deal with media disclosure and other forms of publicity. The ABA's Center for Professional Responsibility has promulgated Rule 3.6 of the Model Rules of Professional Conduct, titled "Trial Publicity."

For practical purposes, in the case of pending litigation or a judicial proceeding, it is important to discuss public disclosure and possible media coverage with your client, early in the case. There will be times when you have to adamantly advise your client not to talk to the press about a pending case. Remember, anything you say publicly is admissible in court. Usually the best thing to do is to work with your client to prepare a brief, polite statement to the effect that you will be happy to comment on the case when it is out of litigation.

There may be exceptions, such as where the lawsuit has high visibility and raises extraordinary public issues. You may decide that some form of disclosure to the press is in order. But be extremely careful. If a reporter calls asking questions, the best thing to do is tell him or her that you're not available to talk now, and arrange a time to be interviewed later. This will give you or your spokesperson an opportunity to discuss the matter with your client and plan your response.

Another reason why some litigants agree to be interviewed by journalists is that by listening to their questions, they may be able to find out if journalists have a distorted view of the case. If so, an interview is an opportunity to straighten them out by explaining what has transpired in the open courtroom. As a general rule, you may acknowledge that a proceeding or investigation is in progress, offer copies of court filings, and identify the parties involved. That information is public domain anyway. You may also be allowed to "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." However, do not talk about evidence not yet admitted in court, and never argue or advocate. Just be factual.

David M. Freedman (www.freedman-chicago.com) has been a legal and financial journalist since 1978, and has served as a media relations consultant to lawyers and financial advisers since 1999. He won a Your Honor Award from the Legal Marketing Association in 2001 for public relations. Dave is a coauthor of The GET GOOD PRESS Series for Lawyers (www.getgoodpress.com).

Paula Levis Suita is a partner in Smith & Suita, Inc. (www.smithandsuita.com), a public relations and marketing firm in Boston. She has more than 20 years of experience generating positive press results in national, trade, and web-based outlets. Smith & Suita was recognized by PR News with two Legal PR Awards in 2004. Paula began her career as a news reporter for the Eagle Tribune (North Andover, MA) daily newspaper. She is a coauthor of The GET GOOD PRESS Series for Lawyers.