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Campus communications professionals and lawyers must interface regularly, and often their professional interests appear to be at odds. The communications office needs to build strong relationships with the media to enhance the reputation of the institution, and often that means providing information to the public through reporters. Lawyers want to limit the flow of information in order to minimize liability or to avoid generating issues in litigation or campus proceedings. Conflict often seems inevitable.
However, by recognizing their differing objectives, by developing strong working relationships, and by adopting a general philosophy of compromise, conflicting objectives can often be reconciled for the benefit of the institution. Three common situations illustrate ways that lawyers and communications professionals can peaceably coexist.
The Routine Interaction
Routine campus communications are the easiest situations to address. Lawyers may be concerned about confidentiality obligations under FERPA, releases from individuals depicted in campus photographs, or legal issues specific to a media release. Communications professionals and their institution’s legal counsel should visit soon after their relationship begins to exchange perspectives and concerns. Most routine issues are fairly predictable, and potential conflicts are easily avoided if each professional understands the other’s perspective, objectives and concerns. Having a conversation about those issues at a time when neither is operating under a deadline creates the optimum environment for the resolution of conflicting interests.
Litigation or On-Campus Proceedings
The most common communications conflict arises when the institution receives negative publicity as the result of litigation, on-campus administrative proceedings, or a combination of both. In some instances, such as a Title IX investigation, federal guidance, investigative concerns, and/or requests by local law enforcement officials may severely constrain what the institution can say in response to the negative publicity. In other instances, lawyers litigating the case for the institution have legitimate concerns over the impact of public statements on the outcome of litigation. In any event, no communications professional likes for their institutional client to be clobbered in the battle of public opinion.
If an institution has legal constraints on its ability to communicate, the college’s lawyer should help the administrative policymakers and the communications professionals understand the both the legal and the practical parameters of those constraints. In other words, sometimes communication is prohibited by law, and sometimes it is just not wise to communicate. With regard to the former, the lawyer cannot permit or be party to any prohibited communication. With regard to the latter, the lawyer can and should advise the institution’s decision makers of the legal risks of communicating, but at the end of a well-informed discussion with administrators and communicators the lawyer’s perspective must yield to the institution’s perspective.
Emergency and Real-Time Crisis Communications
The most challenging predicament for communications professionals and lawyers is when the emergency situation is in process. There is often no time for editing or pondering the options. The risk of error is extremely high, and lives may well depend on what is said, when it is said, and how it is said.
The Clery Act requires every college to prepare for emergencies on campus, including the preparation of an emergency response and evacuation plan that is tested and evaluated annually. Both communicators and lawyers at every institution of higher education should personally review those plans and participate in campus drills designed to test the college’s emergency preparedness. While space does not permit a detailed review of the Clery Act emergency notice and timely warning requirements, communications professionals and higher education lawyers must be intimately familiar with those obligations so that when an emergency occurs, no one will have to research the college’s obligations.
To avoid professional conflict that could easily arise under the highly stressful circumstances of any emergency management situation, lawyers and communications professionals must take three steps.
First, before an emergency occurs, they must work with other campus professionals to fully understand their roles when any one of a number of different emergencies happens.
Second, when the emergency occurs, communicators, lawyers, and key administrators must convene in a designated operations center that has extensive communication capacity—multiple landlines (since cell service can be problematic or nonexistent in crisis situations), multiple email and Internet access points, broadcast radio and television access, and on-campus mobile radio communications with campus police or security personnel. Such an operations center facilitates efficient and quick receipt of information from campus and other sources; analysis of that information; decisions by policymakers; and dissemination of those decisions and other information to those who need to know. In those situations, there is no substitute for face-to-face communication between individuals with established working relationships.
Third, after the emergency ends, everyone involved must assess what worked, what did not work, and how the next event can be handled more effectively.
Ironically for two professions skilled at communications, the biggest source of professional friction between communications professionals and lawyers is a failure to communicate. By communicating often and early, communicators and lawyers in higher education can ensure that their respective forms of expertise yield the maximum benefit for the colleges they both serve.
Jim Newberry leads Steptoe & Johnson's Higher Education Team.
