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Partner or Protector? How Inside Counsel Can Get to ‘Yes’ (Perspective)

Nov. 16, 2016, 3:06 PM

Editor’s Note: The author of this post is a lawyer with a strategic business role at her company.

At many corporations, the legal department is the “Department of No.” Most of the inside counsel’s day consists of repeating that one word over and over. “Can marketing send this beautifully written mailer?” “No.” “Can analytics publish this useful data?” “No.” “Can operations launch this likely incredibly lucrative new business vertical?” “No.” Employees across the company come to think of legal as a killer of beloved passion projects and innovative ideas. They learn to avoid running things by their attorney colleagues, and do their best to keep legal in the dark—often to the company’s overall detriment.

Why do many attorneys say “no” more than “yes”? Usually, because they are risk-averse. They see their job as protecting the company from litigation, and “no” as a security blanket that will protect them and the company from any and all risk. But a great inside counsel understands that risk is sometimes worth the potential reward, and that rather than eliminating risk, their job is to find creative ways to minimize it. That means learning not just to say “no,” but when and how to say “yes.”

It’s no surprise attorneys find this difficult. Law school is not exactly set up to teach creative problem solving. California Western School of Law professors Thomas D. Barton and James M. Cooper have pointed out that lawyers are trained to think of themselves as “fighters”[i] — advocates for rights and for the interest of their clients who come from on high and take a top-down approach to winning victories through casting blame. But in the contemporary world — particularly the business world — there is more of a need for the lawyer as “problem solver” and the lawyer as “designer,” models in which the lawyer is encouraged to think horizontally and collaboratively to come up with creative solutions to problems. (That might be why Harvard Law School now requires a Problem-Solving Workshop for first-year law students.)

In industry, the “problem-solver” model means that inside counsel needs to start thinking of themselves as a partner in the business, not just a protector of it. Since attorneys are the ones with legal expertise, they will often play a critical role in getting a business from Point A to Point B. The CEO may have a clear vision of what he or she wants for the company, but it’s general counsel’s job to make the vision a reality. Yes, the attorney can keep saying “no” all day long to every proposal, but a good one will offer alternative solutions that help the business reach its goals. Over time, this change in attitude converts the legal department from a killjoy cost center to a source of revenue and even innovation for the company.

That means that when a colleague comes to them with a new initiative, inside counsel needs to ask the right questions instead of saying “no” immediately. “What issue are you trying to solve for with this data?” “Why do you want to send this mailer out?” “What are you trying to achieve with this new line of business?” They should get a sense of what the colleague is trying to achieve by taking this risk, and what rewards they expect to gain. There might be some cases in which the rewards are too small to justify the risk—but in others, maybe the risk and reward can be balanced to match. Then, if they can, the inside counsel should come up with an alternative plan that would achieve the same end by different, less risky means.

For instance, if the data in question is unpublishable in its current form, the counsel could ask if it’s possible to aggregate or anonymize it to protect customer privacy. If the mailer makes claims that technically violate truth in advertising law, the counsel could offer to help rewrite the text to make the same points in different, less legally questionable terms. Of course, there will be times when a “no” is unavoidable, and inside counsel should never, ever say “yes” to anything that could actually harm the business. But if they ask the right questions, 9 times out of 10 they will be able to figure out a solution that both grows the business and keeps it safe from litigation.

Companies can make it easier for inside counsel to say “yes” too. One way is to involve them in planning for new initiatives early on, to ensure any legal issues are nipped in the bud. “It’s not unusual for legal to be asked for counsel only after a plan is solidified — and at that point any objection is automatically deemed an idea killer,” author Erica Dhawan wrote in Harvard Business Review this July. Earlier notice gives both sides time to work around any difficulties. In their book How Google Works, former Google execs Eric Schmidt and Jonathan Rosenberg describe this approach as “horseback law,” in which a company will decide that they can accept slightly greater risk for the sake of more innovation — thus it is enough for the legal counsel to “ride up on horse… make a quick assessment, then mosey on.” Both strategies, however, require that lawyers be intimately involved with business processes.