Lochte Saga Illustrates Tension Between PR, Legal Goals

August 26, 2016

By Bill Feldman

News that Ryan Lochte is now likely to face charges in Brazil for allegedly filing a false police report gives us the opportunity to reassess his widely mocked initial apology, and explore the challenges faced in negotiating the tension between PR people and lawyers in the early stages of a crisis.

That apology was widely mocked on Twitter and elsewhere for failing to say what, exactly, Lochte was apologizing for, for referring to his apparently false statements as “overexaggerations” and carelessness, and for absurdly saying “It’s traumatic to be out late with your friends in a foreign country.”

“Ryan Lochte still doesn’t get it,” critics howled. And perhaps he didn’t. But there was something the critics didn’t get: Ryan Lochte almost certainly didn’t write that statement. His advisers did, and everything about it suggests it was likely a compromise – albeit a poorly executed one – between the demands of PR advisers for contrition and the advice of lawyers to admit to nothing.

Why is this important? Because this tension is present in almost every crisis situation, where reputational damage is intertwined with potential civil and criminal liability. This tension produces the all-too-familiar conditional apologies, non-denial denials, and other models of obtuseness that reek of “spin,” and, as in Lochte’s case, lead to further efforts at damage control, such as Lochte’s interview with Matt Lauer scarcely a day later. The Washington Post, which a day earlier had mocked Lochte’s appology apparently, called the Lauer interview “the one we all wanted to see.” 

The Post was happy, but was it a success for Lochte? After all, he lost his major endorsements anyway – in fact it was joked that by the time the Wall Street Journal headlined “Speedo drops Ryan Lochte,” it was such a foregone conclusion that it would have been more newsworthy had the headline been reversed. Meanwhile, his admission may have made it more likely for the Brazilian authorities to move towards an indictment and potential tension between Brazil and the U.S. government over extradition. Perhaps that initial reluctance to avoid an explicit admission wasn’t so dumb after all.

In most cases that involve wrongdoing and the potential for both reputational and legal liability, it’s difficult to strike the right balance between transparency and caution. How can PR people and lawyers work together to achieve better outcomes?

The first thing to recognize is that neither perspective is entirely right nor entirely wrong. PR people are correct to believe that, at least sometimes, the reputational risk may exceed the legal risk, and that the damage to reputation from saying nothing may be greater than the cost of admitting the obvious truth. But lawyers are also correct to believe that contrition designed to put out a media firestorm may produce nothing more than legal headaches that will persist long after the public moves on to the next scandal du jour.

There is no simple formula for resolving this conflict, no substitute for professional judgment and experience. But there are some principles that help responding to allegations of bad behavior:

 

  • The choice is not a stark one between reputational and legal risk; the two are closely related. A person or company with a wounded reputation is more likely to attract lawsuits, and extended litigation creates reputational problems of its own, often from deposition testimony and the drip, drip, drip of emails revealed during discovery (just ask Hillary Clinton).
  • Conditional and vague apologies serve neither the PR nor legal cause well. If you’re going to apologize, say what you’re apologizing for and do it unreservedly, not “if I offended someone.” 
  • Consider the role of insurance in mitigating risk: A company is likely insured for legal liability but not loss of business from reputational injury. It may make sense to apologize quickly and take the risk of a hit for which you’re insured. On the other hand, where there is a real risk of criminal prosecution or serious regulatory enforcement, for which insurance is not the solution, reticence may be the better option.
  • Apologies play out differently for individuals than for companies. It’s often easier for an individual than an impersonal organization to convey sincerity, and CEO efforts have sometimes backfired spectacularly: Two examples: BP CEO Tony Hayward, whose Deepwater Horizon apology disastrously included, “There's no one who wants this thing over more than I do, I'd like my life back.” More recently, Mylan CEO Heather Bresch made the same mistake in the EpiPen price increase furor, saying “No one’s more frustrated than me.” In both cases, these statements, no doubt intended to demonstrate the CEO's sincerity, instead conveyed self-involvement and completely overshadowed the intended messages. Also to be avoided are such self-pitying clichés as, “I just want to get this behind me” (of course you do!), and “this is a difficult time for me and my family” (if you’re perceived as bringing it on yourself, no one cares).
  • Similarly, the public may be more receptive to redemption stories for individuals than for businesses. Ryan Lochte may be able to waltz his way back to reputational health on Dancing with the Stars, but for businesses, it’s a more complex challenge. After its initial stumble, BP’s sustained efforts here have been exemplary.
  • Concerns over preservation of the attorney-client privilege and related privileges can complicate and hinder communications between the outside PR people and the client. There are various strategies to manage this, including in some cases making an outside law firm the client, but none are foolproof and all add a layer of complexity.

 

In my own work, I’ve found that the best PR pros and lawyers genuinely understand each other’s perspectives and work to find common ground. Experienced lawyers know that even though pubic statements made early in a crisis may complicate their lives later on, careful approaches and disciplined language can mitigate the risk and serve an important reputational need. Similarly, experienced communications people understand that by working closely with the lawyers, they can achieve their goals – and avoid say-nothing statements that only fuel the fire – while preserving the client’s litigation posture. The tension between the two is real, but it can be managed successfully in at atmosphere of mutual respect and collaboration.

 

Bill Feldman is a lawyer and communications consultant in Washington, D.C., and is a Senior Counselor with PulsePoint Group, a division of ICF International.

 

Especially in the case of Ryan Lochte, there is no simple formula for resolving conflict.

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The tension in Lochte's saga is present in almost every crisis situation

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