The Call that Comes in the Middle of the Night

December 11, 2017

By Robert J. Haupt

It is 1:00 a.m. and you, a lawyer, are awakened by the buzzing of a call on your cell phone from the CEO of an important client advising that some catastrophe has occurred at one of its business sites. The staff is in a frenzy and the client is expecting to begin receiving questions from management, staff, investors, the media and, even regulators. Before doing anything else, advise your client to pull together his or her key core team (3-4 people, max). You should meet sooner than you may think is reasonable—meaning right away.

It may be an explosion at a job site; it may be suicidal leap from a high-rise hotel; it may be notice that a federal investigation is about to commence over a product contamination. We have each read of these kinds of events in the news. It happens in the world of business. If you receive this call, you know that you are a trusted attorney to that client. Do not drop the ball.

First, make yourself a cup of coffee, get dressed and get to work.

Once you join the meeting, be aware that everyone is looking to you for advice and direction. Stay calm and listen. What happened? Don’t be fooled by what you are told has happened, but listen, ask questions, challenge the responses – you and the management team must know what happened. Over the next few days, you are going to have to quickly figure this out.

Almost immediately, you must decide who will be the spokesperson.  Generally, it should not be the CEO. The CEO must be protected and given the ability to ‘correct’ any other statement made. Anyone else can make a misstatement. You are stuck with words issued by the CEO. There are, however, those matters that are so visible and critical to a business’ survival, that no one else will satisfy this obligation. That said, again, it almost always is preferable for the spokesperson not to be the CEO.

Employees/Staff. Do not ignore the staff.  They are often witnesses. They invariably are going to be asked about the incident. You need them on the side of the company.  Pull them together on a department level and acknowledge the situation and explain that leadership is working through the issues to determine what happened and to make sure that the truth is determined. Encourage them not to engage in speculation or misinformation. They should be instructed not to speak to the media or outsiders, and if approached, to bring it to their supervisor. A few years ago, an employer on the other side of a matter, immediately closed its plant following an explosion and laid-off most of its employees without pay. In that case, the employees began calling me as I represented the plaintiff. The employees became angry at their employer and felt that they had become victims themselves. It was a dumb move.

Investigation. Be clear that the investigation of the events must be directed by legal counsel. In most cases, this will increase the likelihood that the findings can be confidentially protected as being attorney work product. If the business people are directing the investigation into what happened, then it almost assuredly can be discovered by the opposing party in a civil lawsuit. The attorney is going to advise you to preserve your documents and communications, including e-mails and to do nothing that attempts to cover-up what happened. While you want to manage the process, you must do so honestly and be prepared for everything to come out.

Media. On serious issues (and we are only talking about serious issues), a professional must be brought in. You need a public relations professional. Here, it is not simply knowing what to say, but in having the credibility to have your story trusted.  This is all about relationships, which are driven by credibility. True PR professionals can anticipate who will be calling and can even initiate the contact. This person will not be cheap. This individual must be hired by the attorney, not the company. This work is done and managed at the direction of legal counsel. As with all communications, honesty and integrity are core. The world is full of smart people, whose arrogance exceed their smarts. Don’t fall into the trap of thinking that you can hide the facts. You only want time to figure out what the facts are.

Regulators. It is possible that the incident is going to pull in regulators and inspectors. Make sure that you engage counsel who has knowledge of and a relationship with the regulators, state or federal. This is not the time to learn on the job. Hire someone who already has the relationship(s). This may not be the same person as the primary attorney you have hired.

These brief notes are not intended to replace the legal advice of your own counsel. Rather, this is a starting point to get you thinking of what you are going to do before you encounter a crisis situation. Obviously, each matter is different and the response will be governed by those unique circumstances. If you have read this far into this article, don’t wait to begin mapping out your response to a crisis. Preparation and planning are tools that can only increase the likely success of your response.