Confidentiality Under Fire: Can Communication Advisors be Forced to Testify in a Civil Lawsuit?

In today's business world, crises unfold as much in headlines as in courtrooms. Legal strategy and public perception are inseparable – and confidentiality is a fragile bridge between them. Effective communication inside and outside of the courtroom shapes narratives, protects strategic interests, and mitigates reputational harm, fostering the services of communications advisors. Yet, the German legal framework governing these interactions remains surprisingly vague.

This uncertainty prompted Patrick Schroeder, Partner at Freshfields in Hamburg, together with Counsel Petra Eckert and Associate Hendrik Wilkens, to ask a critical question, drawing on their experience in handling complex legal issues for their clients with potential impact on their reputation: Can communication advisors claim the same confidentiality privileges as legal counsel when handling sensitive information? 

This issue first arose in a lawsuit pending before an Austrian court, where a PR advisor was compelled to testify as a witness. This sparked a new debate about legal privilege and confidentiality in legal communications.

The analysis reveals a significant tension: While effective corporate reputation management – especially during a legal crisis – requires open communication between counsel, clients, and communication advisors, the current legal framework does not offer certainty. Under German law, communications advisors will likely not be able to invoke a right to refuse testimony, except in rare cases where their work is directly tied to an attorney’s mandate. The result? Companies risk unintended disclosures in future proceedings unless their legal and communications strategies are tightly aligned.

The authors conclude that the safest way to preserve confidentiality, under current legislation, is to integrate communications work within the existing scope of legal advice. Looking ahead, they call for clearer legislative recognition of communications as a protected sphere.

As legal disputes increasingly unfold under public scrutiny, understanding these nuances is essential. The line between strategic transparency and legal secrecy may be finer than it appears. In-house counsel, decision-makers, and communication leaders should tread carefully when litigation attracts public interest.

The article is part of the Neue Juristische Wochenschrift, issue 42/2025, pp. 3036-3041, and is available in German on beck-online.