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How to Counsel in an Emergency

M ost nights my wife asks me what I learned that day. Throughout our relationship, which includes law school, she's asked me this question. It's a great way to begin a conversation after our daughter is in bed, and I recommend asking your partner about their day; but this is not an article on relationship communication. In my legal career, my answers are as varied as my generalist in-house role but, before I started working for a live events company, I am certain that I never answered, "Today I learned how to respond to an emergency situation in real time!" There are things you don't learn in law school and, with few exceptions, ones that lawyers don't see in daily practice. This is an article about handling those situations.

[Related: What to Do Before, During, and After a Crisis]

We all counsel through crises from time-to-time, but working as an in-house counsel for a large, live event company gives me ample opportunities to address unique emergency issues. This is not to say that conferences, trade shows, or other events are inherently dangerous and should be avoided (in the interest of job security, if for no other reason, I'm definitely not saying that!), but difficult realities occur and, when no one is sure who to contact, they contact legal. How you respond can make the difference between addressing an issue in a rational manner — with legal liability accounted for, and public relations/business implications managed — and a reactionary and potentially dangerous response.

You are their first stop. Remain rational

Even the most seasoned business representative will likely be thrown off in an emergency. We are all human, of course, and when we wake up each morning don't expect to be answering questions of life or death by mid-day. As legal counsel, you will be viewed as the first point of contact who knows more and has answers. Even if that's not the case, embracing that assessment and providing calm and rational counsel will benefit everyone.

Before jumping to legal/liability assessments, PR risks, and business implications, first de-escalate the fervor that can accompany these often scary situations and determine what is known and what is conjecture. In an emergency or unique situations, all of the (often negative) excitement, facts, and fiction can blur together. It is sometimes difficult to remain level, but assessing the facts and providing reasonable advice requires a composed and reasoned approach.

Assess the legal risk

Once the immediate risk has been addressed, or that process has at least begun, the first question I'm often asked in these situations is, "What do we need to do? Is the company at risk?" These legal considerations are of paramount importance and, of course, vary greatly depending on the situation. Consider: What is your client's obligation to its customers, attendees, vendors, employees, and others? Do you owe them a duty to take an affirmative action to address the situation beyond the immediate action that was taken? Do you have an obligation to notify them, the public generally, law enforcement, or other government authorities?

[Related: Is Your Company’s Crisis Communications Plan Prepared for Cybersecurity Incidents?]

Remember that emergency situations often directly affect third parties (individuals or companies). If the issue has a directly affected party or victim, consider the impact of your legal action on that person or company: Would your actions put him/her at risk? Could your actions impact that person's remedies and would your client impacting that third party place new liability on your client? Assess the risks and benefits of all actions from a legal liability baseline before addressing the next, though no less important consideration — business and public relations risks.

Assess business risks and realities

When addressing unexpectable emergency situations, consider business and PR impacts in addition to legal risks. Remember that these realities are directly linked to legal liability and that the way emergency situations are handled can have significant impacts on your client and their business. Providing well-rounded, business-focused advice is crucial in emergency situations; do not dismiss these needs as secondary.

When possible, formulate a sliding scale of legal advice/responses aligned with your liability baseline. Taking this sort of measured and non-reactionary approach will benefit your client by presenting options. Remember, these are very likely novel situations to your colleagues/clients and your flexibility in developing options will assist them in making decisions. This approach is important regardless of whether your point of contact is junior or the CEO.

Of course, your liability baseline doesn't always start at a low/medium level and measured approaches are not possible at all times; there are occasions where a top-down legal mandate is needed. However, remembering when forceful legal approaches are not needed is as important as acting affirmatively and strongly when they are.

[Related: Ten Steps to Keep Your Client Out of Court]

In advising clients through emergencies, remember that legal liabilities and business considerations play off one another. Bring flexibility of approach to the assessment of liability and revisit liability assessments throughout the discussion. Remember that your liability baseline is just that — a starting point that can be raised or lowered as your client's response evolves. Considerations include: Is there a new legal risk raised by a business decision to take an action that, while not legally required, feels appropriate as a business response? Does certain messaging place new legal obligations or risks on your client?

Live events are not dangerous. The vast majority of them are fun, educational, and involve no appreciable risk to attendees or the companies running them. However, live events are unpredictable in good and bad ways, and considering how you advise your client when things don't go as planned will make you a better and more valuable counselor when they do.

About the Author

Joshua BlankJoshua Blank is associate general counsel and vice president for UBM Americas, a global leader in the live events and conference space. UBM delivers products and services to clients globally.

The information in any resource collected in this virtual library should not be construed as legal advice or legal opinion on specific facts and should not be considered representative of the views of its authors, its sponsors, and/or ACC. These resources are not intended as a definitive statement on the subject addressed. Rather, they are intended to serve as a tool providing practical advice and references for the busy in-house practitioner and other readers.