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April 13, 2010
How to Partner With Your Legal Department to Avoid Risk

For anyone who has developed community programs as part of a medium to large corporation, two words can send shivers down one's spine: legal department. In today’s business culture, the internal legal department has taken on a powerful role, and many marketing and community-building employees find themselves at odds with legal.

Think about the purpose of an internal legal department: Their job is to reduce risk to zero. Their work experience, their degree, and their industry’s culture is one that is primarily focused on removing risk. This desire to remove risk leads to complex terms of service, disclaimers, and non-disclosure agreements.

On the flip side, the business and marketing team has a different purpose: reducing risk to the lowest possible level, while increasing reward to the highest possible level, and finding a balance between the two that is comfortable for the corporation.

The conflict between the legal department and the business teams primarily stems from this subtle yet extremely key difference.

With risky, fear-inducing concepts such as engaging communities and community members, how do you avoid being shot down by the legal department? Here are seven tips for partnering with, rather than working around, your company’s legal department.

Respect realities

Perhaps the most important starting point when working with a legal department is to understand that they are actually trying to help you and protect the business. Sure, the current decision-making power legal teams find themselves with is a bit out a balance, but there are real issues you need to be aware of. They get paid to think of and worry about things that may never cross your mind. The legal team exists to help you, so don’t get too caught up in trying to avoid working with them or working around them.

Create partnerships rather than friction

Like any other group in your company, the best way to get past the legal difficulties your yet-to-be-launched community project might face is to connect to the legal team and ask them to participate. Ask them to step out of their role as purveyors of yes/no answers (mostly no) and have them participate as a team member. This helps them to fully understand the business goals, which helps them find solutions rather than simply telling you to stop.

The core question is not whether you should involve them. Rather, the question is when is the right time to involve them. Each group of lawyers will vary in the best time and way to include them.

Listen to the issue, not the answer

Legal may say, for example, “We can’t use Twitter because we’re required to track any and all communications by employees due to regulatory statutes." This doesn’t mean the Twitter project must stop; it just means you have to look for a way to document the communication. While the legal department may speak in absolutes, it’s your job to see through those absolutes and find a solution that works for all parties. One helpful tip is to ask specific questions in a way that leads to further discussion.

Know your subject matter

If you plan on having a debate with the legal team, make sure you don’t bring a knife to a gunfight. As Mike Rowland once pointed out, you should know some of your key legal cases related to social media, such as:

  • Anthony DeMeo vs. Tucker Max (which stated that community owners aren’t liable for their user’s postings)
  • Viacom vs. Google/YouTube (which requires YouTube to turn over user data to Viacom in order to help Viacom prosecute a copyright infringement case)

Simply understanding some relevant legal issues will not only gain you some respect from the legal team, it will help you have more interesting, helpful, and productive discussions.

Ask specific questions

Stay away from questions like, “Can I post content online?” Such questions don’t provide enough context to even allow for a “yes” answer. Remember, a lawyer’s job is to reduce risk to zero, so if there is any risk at all, there’s a good chance he or she will say no out of habit. Instead, focus on the specific area you believe there is concern around. Ask questions like, “When we post content on our blog, should we be concerned about documenting responses?”

Build processes, don’t ask for answers

Even better than asking specific questions, ask the legal team to help you identify larger issues and concepts on your own. Rather than having to come to them with every iteration of a problem, address the bigger issue together, learning what the core concerns are and how to avoid them generally. This will save both teams countless hours of back and forth.

Trust yourself and your own knowledge

Countless marketing professionals have asked the legal team questions like, “Is this safe for me to do?” When the answer is “no,” they simply accept the answer and move on to finding another solution. Trust yourself enough to believe that while you may not understand the full context of why certain legal issues work a certain way, you can ask a lawyer for details. Ask questions, issue challenges. You’ll be surprised how often your “outsider approach” will cause a reframing of the problem at hand.

Remember that the legal team, no matter the industry, is a service provider who is supposed to enable and protect the business. Ask your legal team colleagues for help making your business and projects better, but don’t allow them to make your business decisions for you.



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Jake McKee is the Chief Idea Officer at Ant’s Eye View, a strategic consulting firm that helps companies develop and execute customer engagement strategies including social media, community building and customer service. Jake blogs at communityguy.com, and you can find him in print in the 10th anniversary reprint of The Cluetrain Manifesto where he contributed the afterword, based on his experiences apply the Cluetrain principles at LEGO.

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