By Boyd Neil
Senior Vice President and National Practice Director, Corporate Communications
Hill & Knowlton Canada

“An apology? Bah! Disgusting! Cowardly! Beneath the dignity of any gentleman, however wrong he might be.”

American comedian Steve Martin

As a long time public relations counselor to clients who have triggered harm through their actions, whether inadvertently or with obvious negligence, I have sat with legal counsel and senior managers to discuss – okay, let’s be honest, argue – what can and can’t be said to the injured parties and the public about the company’s reaction to the harm caused.

Often legal counsel is on one end, and communication advisors, who recognize how difficult it is for a company to rebuild trust and reputation once it is lost, on the other.

In archetypal terms, the discussion looks like this:

Legal Counsel: “If we say anything we are in danger of assuming liability and facing lengthy and costly litigation.”

Communications Advisor: “Unless we apologize for our role in this event we will never recover from the damage done to our reputation among customers, clients, regulators and the communities in which we operate.”

Inherent in both these positions are countless questions to be answered: Can you apologize without admitting fault? Is litigation unavoidable if you express regret? Does an expression of sympathy imply responsibility? Do statements of compassion imply fault? Can an apology be meaningful only if there is a degree of responsibility accepted? If a finding of guilt in legal terms is inevitable, will an apology mitigate damages or facilitate swifter reputation recovery?

Because there are so many difficult questions, a reductive approach to messaging and legal advice does not do justice to either point of view. Most senior executives will defer to legal counsel in a crisis, generally fearing class action suits more than diminished trust and credibility. But given that recovering from a damaged reputation can be costly at best and terminal at worst, it’s in an organization’s best interest if legal and communications counsel take a more supple and collaborative attitude when crafting messaging and strategy and then carry that approach to the crisis or issue table.

An executive faced with a crisis, and mindful of long-term reputation recovery, should challenge both legal and communications counsel to think more broadly about the situation:

First, there is evidence that the benefits of an apology or expression of sympathy, anxiety, regret or even sorrow are considerable and include the potential to avert punitive legal action; increased greater credibility and trust which can have long-term positive impact on share price, market acceptance, supply chain relationships and partnerships; and better community relations, even a continuing license to operate. (See “Companies Can Apologize: Corporate Apologies and Legal Liability by Ameeta Patel and Lamar Reinsch published in 2003 in Business Communication Quarterly)

Second, as I understand the relationship between an apology and liability in legal terms it is complex, and has to be considered on the basis of jurisdiction. In some Australian states (for example, section 7 of the Tasmanian Civil Liability Act 2002) saying, “I’m sorry” for an action is not considered at all an admission of legal liability. Section 1160 of the State of California Evidence Code also provides that “The portion of statements, writing or benevolent gestures expressing sympathy or a general sense of benevolence relating to the pain, suffering, or death of a person and made to that person or to the family of that person shall be inadmissible as evidence of an admission of liability in a civil action.” Similar laws are on the books in Texas, Massachusetts, and Georgia in the US.

At least one province in Canada (British Columbia) has “apology” legislation and the Ontario Bar Association recently asked the Attorney General of the province of Ontario to consider similar legislation. Analogous to the wording on the books in B.C., the first clause of the proposed statute would read “An apology made by or on behalf of a person in connection with any matter does not constitute an express or implied admission of fault or liability by the person in connection with that matter.”

Evidently Both legal and public relations teams need to be sensitive to these differences in order to communicate emotion (the essence of an apology) while protecting legal liability.

Third, lawyers are advisors with a particular range of knowledge, skill and judgment arising out of their professional training and practice. They aren’t required to recognize or provide counsel on the relative cost of possible legal awards versus the impact on sales, supply chain confidence or increased regulatory scrutiny of a spoiled reputation. Just as pubic relations counselors should work with senior executives to determine the price tag of reputation damage, legal counsel should be asked to provide a history of awards for similar harmful action.

Finally, demand that in house or external public relations counselors keep your business objectives top of mind, and serve as more useful partners with legal teams by:

• Making clear to clients and legal counsel that an effective ‘apology’ can mean simply acknowledging that harm has occurred and an expressing sympathy about the consequences of the event on the affected people;
• Getting to know the specific laws in your jurisdiction with respect to legal liability for statements of regret, distress, apology, concern, worry, anxiety;
• Asking legal counsel to specify: What are the legal consequences if your statement confirms that the company feels badly about what has happened?
• Asking legal counsel to provide a range of words that CAN be used with relative impunity to express remorse , distress, or regret depending on the particular circumstances of the crisis event.

With due respect to Steve Martin, a better way for executives, supported by both lawyers and public relations counselors, to think about an apology would be something like this: “About time! Sensitive! Brave! Evidence of the dignity of company and its worthiness of trust, however wrong it might be.”