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Professional Malpractive or Failure to Perform: When Communications Go Awry

In the communications field, there are numerous types of professions and service providers that are utilized to communicate for numerous purposes to various types of target audiences. Such purposes could involve: disseminating information; creating or generating awareness; creating, building, developing or repairing an image, reputation or brand; generating ongoing visibility; promotion or marketing of a product or service; or communicating in crisis situations to disseminate vital information and/or correct negative impressions or incorrect information. The most prominent type of service professionals that are contracted for these purposes are in the fields of public relations, advertising and marketing.

Generally, and in most cases, the professionals retained for these purposes meet the “client’s” needs to some level of satisfaction, which could range from outstanding to okay. Unfortunately, in some cases, the client is totally dissatisfied, unhappy with the results which didn’t accomplish what was intended, the communications effort was a complete failure and/or the funds expended were wasted. In such cases, some clients will dismiss the provider. Those extremely dismayed often file a lawsuit. There are many potential causes of action that cover this situation, two of the most common are Professional Malpractice and Failure to Perform. Following is a definition of both of these:

Professional Malpractice

  • An instance of negligence or incompetence on the part of the service provider

  • Failure to render services with the level of skill, care and diligence

  • Failure to meet professional standards while providing the service(s)

  • Failure to exercise the degree of care and skill that another similar provider of the same specialty would provide

Failure to Perform

  • Failure of the performance of the service as was warranted or represented by the provider.

  • A failure to do that which was anticipated, expected or required in a given situation

  • The intentional omission or nonperformance of a predetermined duty or responsibility

  • Purposeful deception by the communications provider.

Certainly all of these, if true, could constitute a reason for the client to have a legitimate grievance – even a legally actionable one – against the provider. However, some are clear-cut and some may not be. Some are fact and some are judgment. If a provider fails to provide a specific service or didn’t take an action that was promised or done in a certain manner – that is fact and indisputable. But the evaluation of the performance (e.g. skill, care and diligence in doing so or degree of care) can be a matter of judgment or interpretation and open to debate – unless it is so egregiously or incompetently performed in the eyes of an objective observer. Therefore, this is an area that is not necessarily so “cut and dry” in terms of culpability.

In defense of the communications provider, is important to note two factors that partially can explain any so-called “failure” in either of these areas. First and foremost, the degree of control (if any) that the provider has over the ultimate result of the service(s) provided. This differs depending on the type of communications. For instance, in terms of generating exposure in the media, advertising is guaranteed because you pay for the advertisement that is published or aired. In public relations, if you send information to the media (e.g. a news release), there is no guarantee if will be used or how it will be. A good analogy of this inability to guarantee success is litigation. When a trial lawyer is retained to handle a case, no promise can be made to the client of the outcome because the attorney has no control over the outcome – only a judge or jury can decide. When there is no ultimate control of the success or failure of the communications, it is important that the provider make the client aware of this in the beginning. In this case, the provider should only be judged on the quality of the strategy, preparation and dissemination of the communications and the appropriateness of the audience targeted.

The second factor is the client’s unrealistic expectations. Often, they expect an outcome which is better than is realistic. As an example, in public relations, a provider might seek to get an article in the newspaper for the client. There is no assurance this can be done as it’s up to the newspaper to decide if it is newsworthy. Often an article appears but the client can be unhappy because: it’s too short; not on the front page, has no photograph or not enough of them; didn’t quote the client; didn’t emphasize the key points or left them out; etc. There is a classic story about a famous actress who dreamed of being on the cover to Time magazine. Her publicist arranged it and she was unhappy because she didn’t like the angle her face was photographed. (Note one way to diffuse this situation in advance is for the provider to clearly advise the client that an outcome can be guaranteed. At the same time, the client is entitled to an assessment of the realistic expectations for success or failure.)

With this being said, there are numerous other reasons why communications providers fail that aren’t a basis for legal action. These can range from providers who are well meaning but incapable of performing (partial fault of client for not vetting properly) to providers who use bad judgment/make the wrong choice. I served as an expert witness in a case where a public relations firm was sued for Professional Malpractice in a crisis communications situation. No question the outcome wasn’t good but it wasn’t because the firm was incompetent or didn’t perform. There was two tried and true ways to handle the situation and the one they chose (not the one I would have) didn’t work.

THE BOTTOM LINE IS: In respect to situations that might call for a lawsuit for Professional Malpractice or Failure to Perform, it’s not always a “black and white” determination. Before filing lawsuits on behalf of the client, attorneys should seek the counsel of an expert (witness) in the communications field to determine first whether the provider is truly culpable of the failed outcome. Better to know up front before proceeding with litigation that itself might fail.

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