The in-house lawyer’s role in successful crisis management

Imagine you are working late. Suddenly, your phone rings. You are told there is an ‘incident’ at one of your overseas operations. The facts are hazy. You find it hard to focus. What do you do?

For some, this is how a crisis will first emerge. Experience shows that no matter who you work for or where you work, situations will arise that are beyond your immediate control. Sometimes the incident will originate internally; at other times, the shock will be external. Either way, you have to deal with it.

In almost every case you will have to answer one question first: “How do I know if it even is a crisis?” A crisis has been succinctly described as an “abrupt and brutal audit”¹. That’s not a bad start. A crisis will place you well outside your comfort zone; it will be disturbing, out of the ordinary and threatening.

In a crisis, ‘low key’ is not an option. So if you are in any doubt respond as if the situation were a crisis. If you wake up the right people at the wrong time you may get – politely put – pushback. But consider this: it is infinitely better than the alternative. So don’t be shy; don’t be hesitant. Successful crisis response requires what is commonly described as ‘a prudent internal over-reaction’.

Using this as your guide will stop you spending too long working out what is going on before you have informed those who need to know. Step one is telling those who need to know; it’s not about panicking, but time can be of the essence so don’t waste it.

The lawyer’s role

Lawyers involved in managing a crisis will face some tough decisions. One of the hardest early tasks is deciding which issues and concerns should carry most weight and which should take a back seat. I don’t mean to kindle an argument about what is most important. But I hope we can all acknowledge that there are three key constituents to each decision during a crisis:

• operational / business
• legal
• PR / communications

Looked at another way, there are three imperatives or driving forces in any crisis:

• commercial
• legal / public policy
• moral

The success or otherwise of your organisation’s management of a crisis will depend on getting the balance right. Each needs a representative voice. And better decisions are taken when all views are heard. That makes a strong argument for any organisation having a lawyer on its crisis management team.

The legal and public policy exposures surrounding a crisis will naturally encompass duty of care, liability and a variety of regulatory and compliance issues. Those are meaty topics. In the space available here, I want to mention quickly two close associates of these umbrella issues: the written record and public statements. These are a common feature of the crisis management landscape and often cause debate amongst lawyers.

You may instinctively be reluctant to allow public apologies or the creation of minutes of meetings that might portray your business as uncaring and its decisions as self-serving or ill-judged. But be careful.

In respect of the former, you should be wary of generating announcements that have been ‘over-lawyered’; a half-hearted or mealy-mouthed apology is worse than useless.

And as far as keeping a record is concerned, if done properly the pros undoubtedly outweigh the cons. The most important thing is to manage the crisis as it unfolds. You must act in response to the facts: What was known? When? Where? What decisions were taken? And by whom? Without a proper log, the chances of doing this will be greatly reduced.So, to my point regarding balance: try to allow others to do their jobs whilst making sure you still do yours.

You need a plan – crises are unavoidable but not unforeseeable

You may never know exactly what you’re planning for, but you still need to plan. This is perhaps the most critical factor in successful crisis management. A multitude of trigger events can be anticipated even if you cannot tell for sure what sort of crisis might ensue. So you should prepare as best you can.

This is important since, once it has begun, the path of a crisis will be difficult to predict. The resulting loss of control can often cause confusion, even panic, and these states can drive incoherent and irrational responses.

But a good plan will give you an adaptive framework within which you can take better decisions faster. The plan is intended to impose some sense of order on chaos; to save us from those common errors that arise when we are under intense pressure and scrutiny.

A plan includes (or points you in the direction of) important / high level corporate information and may, possibly, contain some pre-prepared statements (but beware an ill-judged or inappropriate remark that was written out of context). It will also set out a template agenda: a series of reference points to ensure you don’t miss anything critical.

The right reference points will help your organisation to exercise sound judgment, draw on relevant expertise and assess the facts. That will help you to take sensible decisions that are both emotionally intelligent and business savvy. Preparedness is the key to crisis management. But to be meaningful and effective that preparation must be consultative, the information up-to-date and accessible and the plan rehearsed.

And what is the best time to prepare for a crisis? Now; before you are in one.In my related article on crisis management, I look more closely at the components of a plan, the Crisis Management Team and discuss some real-life examples, explaining how an adaptive plan can support organisations across a variety of situations.

¹ Preventing Chaos in a Crisis – Strategies for Prevention, Control and Damage Limitation”, by Patrick Lagadec (translated by Jocelyn M. Phelps); McGraw Hill Europe, March 1993

This article was written for and first published by Practical Law in November 2017.