Something has gone wrong, people are owed an account, and there is potential liability. The advice arriving from counsel will be to say as little as possible.
That advice is competent and it answers a narrower question than the one the leader is facing. Nothing in this entry is legal advice, and nothing in it should be followed against the specific guidance of your own attorney, who knows your facts.
Two different objectives
Counsel is optimising for one outcome: minimising legal exposure. That is their job, they are right to do it, and a lawyer who advised otherwise would be failing.
A leader is responsible for several things at once, of which legal exposure is one. The others include whether the organization is trusted afterward, whether staff believe they were dealt with straight, whether affected people were treated decently, and whether the institution survives in a form worth having.
A statement that reduces exposure and destroys the community’s confidence has traded a quantifiable risk for an unquantifiable one. That may still be the right trade. It is a trade the leader must make rather than one that should be made for them by somebody optimising a single variable.
The question to put to counsel
Framing determines the answer, and most leaders frame it in the way that produces silence.
What can I say returns a minimal list, because the safest answer is always less. What specifically must I not say returns a short and precise list, and everything outside it becomes available.
The second question also surfaces something useful: how much of the proposed silence is a legal requirement and how much is professional caution. Both are legitimate and they are not the same, and a leader is entitled to know which they are being given.
Then ask directly: what is the actual exposure if I say this? A concrete answer allows a decision. Do not say anything does not.
What is almost always available
Even under real exposure, a surprising amount can be said, and it is the part people most want.
Facts already in the public record. What the organization is doing now, in operational terms. What people affected should do and who to contact. Expressions of concern for people who have been harmed, which are not admissions of fault. That an investigation is under way and who is conducting it. And when more will be said.
What is generally not available is anything characterising cause or fault before it is established, which is also the thing a leader should not be saying regardless of legal considerations.
Notably, the material most often withheld out of legal caution — sympathy, presence, contact with affected families — is frequently not restricted at all. Several jurisdictions have specifically protected expressions of sympathy from being treated as admissions, and your attorney can tell you how that works where you are.
Where the legal position genuinely binds
Some constraints are not caution and should be respected without argument.
Personnel matters concerning a named individual. Anything covered by a protective order or a confidentiality obligation. Student, patient, and personnel records under their respective regimes. Matters where a criminal investigation is proceeding and comment could affect it. And insurance policy conditions, which frequently restrict what may be said or admitted and can void coverage if breached — a detail leaders discover too late with some regularity.
In each of these, the honest move is to say why you cannot speak rather than to say nothing, which is available and costs nothing.
Working with counsel rather than behind them
The productive arrangement has the leader drafting and counsel marking, rather than counsel drafting and the leader delivering.
Write what you would say if there were no exposure. Give it to your attorney and ask what specifically creates risk and why. Then decide, knowingly, which risks to accept.
This produces something in a human voice that has been checked, rather than something in a defensive voice that cannot be improved. It also keeps the decision where it belongs, which matters when the consequences arrive.
The hiding place
The uncomfortable observation, and the reason this entry exists.
Legal advice is frequently the instrument by which a leader avoids a conversation they did not want to have, while attributing the avoidance to somebody else. Our lawyers have advised us not to comment is true, defensible, and occasionally a way of not facing a family, a staff meeting, or a room of angry parents.
The test is private and simple. If counsel came back tomorrow and said you were free to speak, would you want to? If the honest answer is no, the legal position was not what was stopping you, and everybody on the outside has probably worked that out already.
Edited by Patrick J. Wolf, PhD