I’m still thinking about the rant against lawyers that Todd Defren posted earlier in the week. I responded earlier to his post but that was just a short response (for a lawyer anyway)—I didn’t think it really helped the situation (except to clarify a little Bard quote). And being a lawyer is about helping people. Or cross-examining Jack Nicholson. Either way.
Back in October, 2011 I had the opportunity to speak on a conference call with the Community Roundtable. It’s an impressive group of professional community managers and I was thrilled to talk with the group after Dell’s community manager @BillJohnston told me about it (Bill is a brilliant community resource). That talk was about the Top 10 Misunderstandings Between Community and Legal Teams. But I realized that, with some tweaking, I could create this list instead.
So now, with a huge hat tip to Todd, Bill, and the Community Roundtable for inspiring the original, I bring you the newly tweaked Top 10 Things Social Media Professionals Need to Know When Working With Lawyers. Yes, it’s a bit long and I’m sorry for that. But if it saves you even one hour of time when working with your lawyer, that’s a couple hundred bucks in your/your company’s pocket. You’re welcome.
10. Social media is not the wild west.
I hate this analogy and not just because I live in Texas so I know the wild west isn’t real (well, maybe it is in West Texas but I’m still not sure if that’s technically the US). There are absolutely rules that apply to social media and the largest emerging issues with the law and social media deal with applying existing rules to a new technology. Instead of cowboys in a lawless land, think of social media as a giant alien mothership that has appeared over our cities. It’s new, it’s scary (to lawyers…read on), and it’s very different. But we have rules and laws and procedures that will still apply to deal with the situation. It may be so new that we’ll have to come up with some new rules but we’re not there yet.
This also means that it’s going to take time to figure out how everything fits and it won’t always make sense at first. Take, for example, the California decision that the CAN-SPAM law which regulates commercial email applies to Facebook posts. The ruling tries to fit a square peg in a round hole since CAN-SPAM has a number of technical requirements that don’t make sense on Facebook (like a clear opt-out link on every message). But laws that need tweaking are not the same as a lawless land.
When you are working with a lawyer you need to understand that your shiny, new technology will still be viewed through the ancient legislative lenses of five (or more, the horror!) years ago. And you’ll need to manage that regulation together.
9. Lawyers are just the messenger.
Lawyers, unless they work in a fancy building with lots of marble that’s connected to a government agency, don’t make the laws. We help guide our clients through the laws and rules and cases that have set precedent on the issue.
If we tell you something is illegal because there’s already been a case on the issue, that’s to inform you of the current risk environment. You pay a lawyer to give you advice and information on legal risks, not necessarily to give you the answer you want. There are plenty of other occupations that will tell you whatever you want if you pay them. Heck, there are a few bad attorneys that do that too. But for the most part, lawyers are there to help you manage risk or right a wrong within the game that has already been written.
If you get an answer you don’t like you should find out why. Truth be told, the lawyer should be telling you in the first place. But if they don’t, ask. That’s what you’re paying for.
8. Don’t ask how to avoid all risks because you can’t.
Lawyers see risk in everything. It’s our job. So if you ask us for a way to avoid all risk you’re going to get the same answer from any decent lawyer: “You can’t avoid all risk.” Take anything you want to do and a lawyer can imagine some way in which your activity distracts a person driving a school bus full of children and nuns and the bus crashes into a brilliant scientist who was about to cure cancer. Not one cancer—ALL CANCER. Yeah, nice work.
So don’t ask us to avoid all risk. Ask us what the biggest risks are and how we can mitigate them. Mitigate is a good word to use with an attorney. It’s code for “Yes, I totally get we cannot reduce the risk to 0% but we can reduce it to a manageable level by taking some common sense actions because I don’t want to crash a school bus into Dr. Cure.” Yes, his name is Dr. Cure, deal with it.
If you ask us to help you mitigate your risk, we can do that. If your attorney can’t think of a way to mitigate your risk either you’ve come up with a plan that cannot be saved (like a contest that asks all participants to intentionally crash a school bus into scientists and then post an Instagram of the carnage) or you have a bad lawyer and you should get another one.
7. You need to tell your lawyer everything.
You’ve heard of the attorney-client privilege, right? Of course you have. Besides Miranda rights it’s one of those legal tenets that TV shows and movies love to use. Just in case you’re one of the five people who haven’t heard, virtually any information you tell your attorney will be privileged—meaning the attorney will not and CANNOT tell anyone else. There are very few exceptions and they almost all deal with immediate physical harm.
But beyond knowing it exists, I want you to think about why our society would create such a privilege. Why would we actively support the ability for a lawyer to withhold information from courts, the police, and everyone else? Because we want to create an environment where your attorney can get all the information they need to provide legal advice. Without that privilege, you might withhold vital information that changes the advice we give you.
This means you can and should tell your lawyer everything they need to know. They will help guide you by asking questions, but if you’re in doubt then overshare. You’re a social media professional so I think you can do that. If your lawyer isn’t asking questions on a particular area, bring it up or ask them if it matters. Maybe it doesn’t and the lawyer will explain why. And if something you’ve spoken to an attorney about changes, tell them. You may feel like you are saying too much but that is far better than you not telling your attorney a vital piece of information.
6. The legal mind sees the world through horrible, blood-stained glasses; so brace yourself.
Picture the following scenario. A passenger is hurrying to board a moving train. They are carrying a package. Two train employees offer their assistance. One is outside the train, running along with the train and the passenger in order to help the passenger on. Another employee is inside helping the passenger in. Unfortunately, with all the motion and running and jumping, the package falls and lands on the tracks. The package contains fireworks. It explodes. The shockwave reaches the far end of the station and tips over a delicately balanced but large scale. The scale falls onto a woman and injures her. She sues the railroad for the actions of the train employees in helping the passenger.
This is not a hypothetical case. This is the famous (for lawyers, anyway) case of Palsgraf v. Long Island Railroad. Every lawyer learns this case in the first year of law school along with dozens of other cases that would have to be toned down to appear on a TV legal drama. This is the world we are trained to see and think about and why we see risk everywhere.
Because, here’s the truth, risk is everywhere. Risk is the potential for negative consequences. We are trained to see these risks and help you avoid them, but you need to prepare yourself for the horror house of jeopardy that lives in our minds. And I’m not talking about the Alex Trebek kind of jeopardy. But like all scary movies, it has an ending which is the legal advice/opinion your lawyer will give you. Keep your eyes on the prize and prepare to be a little bit scared.
5. A lawyer’s favorite answer is “It depends.” If you don’t want that as an answer, change your question.
Besides identifying risk the other thing lawyers are trained on is the concept of precedent. That’s where you take a case that has already been decided, look at the relevant facts and analysis a court has used to decide the previous case, and determine how that applies to the situation you are analyzing. But since there is never 100% overlap with an earlier case it’s entirely possible that a situation that sounds the same could have very different results.
The end result is if you try to give a quick hypothetical question to a lawyer they will always come back with “It depends.” Because one thing you mentioned (or didn’t) could change the outcome. So if you don’t want this as an answer (and, really, who does) then you need to change the question.
Instead of asking us “Am I at risk of a lawsuit if I do this?” ask “What are the biggest risk areas that I can do something about?” Ask for methods and strategies, not outcomes.
4. Involving legal at the last minute is a really, really bad idea.
Lawyers are like architects except most of us can’t do math. Meaning you want us helping with the plans for how to build your foundation, not coming in later trying to move walls (we can do that too but it will be harder).
Every lawyer will have their optimal time to get involved depending on expertise and style so you should figure that out. But that optimal time is probably earlier than you think, so don’t wait.
3. Agreements don’t have to be written in legalese.
Agreements are about two parties having a meeting of the mind about some business arrangement. The agreement can be negotiated (contracts), imposed (contracts of adhesion or virtually all terms and conditions for software/platforms), or documented as a policy that must be followed. The important part is that the obligations, duties, and material terms are communicated to all the parties.
That doesn’t mean the agreement requires Latin and semi-colons. Sometimes it is helpful to have technical language but there’s also an opportunity to cement your arrangement in plain language—it can make the document understandable and memorable as a result. This was one reason we decided to write Dell’s Social Media Policy in a conversational tone and I think it’s worked quite well.
If your lawyer gives you a document that you don’t understand, ask why it can’t be written more clearly. Maybe there’s a good reason for it. Maybe not.
2. Earlier in your process, legal can help with goals; later in the process, legal can help with details; reversing the two is like crossing the streams in Ghostbusters.
This plays with number four on the list but also shows the different points at which you can involve a lawyer. The important thing to understand here is that you may need to talk with your attorney several times in your process depending on what you’re doing or what kind of advice you’re seeking.
If this sounds horrific to you because you avoid talking to your lawyer whenever possible, you need another attorney.
1. Good lawyers don’t say “No” and walk away.
I’m going to take the incredible leap of faith and say that you are a reasonable business person and you aren’t coming to your attorney with a blatantly illegal business plan such as selling people, manufacturing illegal drugs, or a Madoff pyramid scheme. If you have come to an attorney looking for advice/approval and you get a simple rejection without options, then you probably need another attorney.
If you can’t get another attorney, then you need to ask better questions. Don’t ask questions that let the attorney say “No” and walk away—ask those open-ended questions about identifying and mitigating risk. Don’t ask “Can I create a game where contestants drive school buses filled with kids and nuns into cancer research scientists?” Instead, ask “What kinds of contests can I run for my site?” or “I want to run some contests to give away prizes—anything I should avoid?”
Hopefully these tips will lead to a better working relationship with your attorney. And yes, for the record I’m working on an equally detailed post for the Top 10 Things Lawyers Need to Know When Working With Social Media Professionals that you can point your lawyers too when needed.