Disorder in the Court: When Attorneys Harm the Brands They Represent


The following is a guest post from Eric Starkman, the president of STARKMAN, a public relations and brand management firm with offices in New York and San Francisco. He previously was an editor and reporter at major newspapers in the US and Canada.

Effective brand management is no easy feat, and it certainly is not the sole responsibility of those who carry the terms “brand management” somewhere on their company’s business card. As we all know, marketers, employees, customers, the media, and the general public all have an impact on how a brand is perceived. Individual experience, coupled with those of trusted influencers, can have far greater impact on brand perception than the most ambitious PR, marketing, and branding campaigns. So why is it that corporations fail again and again to protect what brand “control” they do have when it comes to their attorneys?

As Wells Fargo, Google, and Goldman Sachs have demonstrated, attorneys can often define—and by doing so sully—the brands they are there to protect. In Wells Fargo’s case, Judge William G. Young of Federal District Court was so outraged by the conduct of the bank’s attorneys in a predatory lending lawsuit that he demanded a corporate resolution signed by the president—and a majority of its board—affirming they supported the seemingly audacious behavior of the bank’s legal eagles. While Judge Young grudgingly accepted the legal argument of Wells’ attorneys, he was clearly bothered that the bank’s victory was won on a “technicality”: 

“The disconnect between Wells Fargo’s publicly advertised face and its actual litigation conduct here could not be more extreme,” Judge Young ruled. “A quick visit to Wells Fargo’s website confirms that it vigorously promotes itself as consumer-friendly… a far cry from the hard-nosed win-at-any-cost stance it has adopted here.”[more]

Rather than simply decline comment, which circumstances sometimes do dictate is the best course of action, or at a minimum reaffirm that it is indeed a customer-friendly bank, Wells’ spokeswoman issued a statement to the New York Times that was clearly penned by their no-doubt-offended attorneys. In addition to calling the judge’s remarks “inflammatory and unsubstantiated,” the statement said: “We believe Judge Young should follow the law which he recognizes and finalize his own judgment in this case.”  That comment might have gotten a few “attaboys” from folks in the legal fraternity, but I doubt it did anything to placate concerned customers and other constituencies.

And then there’s Google. In defending a couple of lawsuits alleging that Google’s practice of scanning emails and then targeting ads based on that content constitutes illegal wiretapping, the company’s lawyers cavalierly provided a comment in a court briefing arguing for the case to be dismissed:

“Just as a sender of a letter to a business colleague cannot be surprised that the recipient’s assistant opens the letter, people who use Web-based email today cannot be surprised if their communications are processed by the recipient’s” email provider.

Needless to say, the presiding judge didn’t buy the argument and the cases are going to trial. Google, to its credit, didn’t attack the judge when commenting on the rejection of their argument, but it did manage to promote its service and products, albeit it rather disjointedly: “We’re disappointed in this decision and are considering our options,” it said. “Automated scanning lets us provide Gmail users with security and spam protection, as well as great features like Priority Inbox.” Hmmm… not the smoothest segue, Google. I can only imagine how the flippant privacy-related remarks were received by those outside the legal team’s offices, who have been working so hard to keep Google’s name out of public debates around online service providers and their users’ rights to privacy. Facebook, on the other hand (see here, here, here and here), was probably rather pleased.

Finally, there is Goldman Sachs’ public response to a fascinating and disturbing Vanity Fair article by noted author and financial journalist Michael Lewis that persuasively argues the investment bank, in cahoots with prosecutors, were responsible for jailing an IT person for engaging in practices that are widespread within his specialty area. Goldman’s statement, which appears at the bottom of the article, doesn’t address Lewis’ salient points but instead argues the IT person’s legal victory wasn’t all that clear cut. (Yes, but the Second Circuit Court of Appeals still ruled the guy be released from prison). In my mind, the legal tone and tenor of the statement only served to reaffirm Goldman’s image as a “great vampire squid.” Again, it’s hard to imagine anyone with any branding savvy had a say in the statement’s creation.

To be fair, these companies’ lawyers were all acting in the legal interests of their clients, which is their ultimate mandate. However, the stakes were high enough to warrant some collateral brand damage, and to consider the potential long-term branding consequences of the short-term legal statements they were writing and issuing. Just as branding is an “everyone in” corporate process, so too should be the legal approach when such services are needed.   

Until such a culture and mindset takes root, marketers beware—of your attorneys.