Thursday, 25 February 2010

Your Google Needs You!

Google is recruiting. It needs in-house counsel, and lots of them. Fast! Just look at this selection of in-house legal jobs currently available at Mountain View, Google UK, and Google Zurich.

The reason for this recruitment drive? Well, not only does Google have the day-to-day legal demands of any international business its size (are there any others?), its also facing legal challenges left, right and centre. Here’s a quick run-down of some of the more high-profile ones:

1. Digital Books
Google is seeking to build the world’s biggest online library by digitising millions of out-of-print books. This move has come up against much criticism concerned with breach of copyright (resulting in many authors opting out of the proposed settlement), potential invasion of privacy (the project has the potential to make user’s personal data and online habits public) and unfair competition (is Google obtaining a monopoly on the world’s information?). The “fairness hearing”, as it is being referred to, had its day in court last week and Judge Chin has expressed his concerns but made clear that there will not be an immediate ruling.

2. Personal liability of 3 Google Execs in Italy
In Italy 3 Google executives have been convicted of invasion of privacy as a result of a short film being uploaded onto Google Video which showed a 17 year old boy with Down’s Syndrome being bullied by 4 other children. Although Google removed the video in less than 24 hours of receiving complaints after it had been uploaded, this was not enough for the Italian Court, whose position was that Google should never have allowed the video to reach the internet in the first place.

It’s a concerning precedent on two counts. Firstly, in terms of exposure to liability of executives working at content providers and potentially other platform or service providers. Secondly, in terms of the potential changes to process required for those content, platform and service providers to pre-screen content to minimise this new risk.

More on this story can be found on BBC, Google’s reaction and Peter Fleischer’s view (one of the Google executive’s in question) .

3. Potential EC Competition Investigation
The European commission has received 3 complaints (from price comparison site Foundem, French legal search engine, and Microsoft's Ciao) that Google’s online search and digital advertising activity is potentially anti-competitive. Copies of the complaints are not available but according to The Guardian The complaints centre on the way in which Google's search results are compiled and on the terms and conditions the company attaches to deals with advertisers.”

The EC has issued a statement advising that it has not opened a formal investigation but that it has asked Google to comment on the complaints. Google states it is “committed to competing fairly”, but with such a strong hold in the market-place and so much at stake, I suspect its in-house legal team will be pouring over the detail of the complaints and the company’s response with a fine tooth-comb to stave off a full investigation by the EC.

4. Buzz Off
The controversial social networking tool attaching to Google’s email brought with it a host of privacy concerns, Channel Webb documents them well. Google responded promptly to the criticisms and concerns, but was it too late? In the US, the Electronic Privacy Information Centre has urged the Federal Trade Commission to open an investigation into Buzz with a detailed complaint which seeks to:

• Compel Google to make Google Buzz a fully opt-in service for Gmail users
• Compel Google to cease using Gmail users’ private address book contacts to compile social networking lists
• Compel Google to give Google Buzz users more control over their information, by allowing users to accept or reject followers from the outset
• Provide such other relief as the Commission finds necessary and appropriate

5. Streetview
After successfully fighting off Mr & Mrs Boring who issued a federal claim against Google in relation to Streetview invading their privacy (see Eric Goldman’s summary) in the US, the Google lawyer assigned to Streetview is now having to fight a battle in Europe. Strong objections by the German government have been voiced by Germany’s Consumer Protection Minister (comments here) who is looking for Google to potentially obtain the consent of each and every person photographed on Stretview before uploading their image or other identifying locational data onto the service.

6. Alleged Search Patent Infringement
Hot off the press this morning, we hear that Xerox is alleging that Google’s search algorithms allegedly infringe its patents. Yahoo is also on the receiving end of the allegation and breaks the news here.

7. Adwords
And we haven’t even started on the long list of Adwords lawsuits lining up. Expertly summarised on Eric Goldman’s blog.

And that’s only the legal news in the public domain. Interesting times for GOOG’s in-house counsel.

Tuesday, 23 February 2010

5 Steps to Legal Risk Management

Not so long ago I was invited to participate in a Legal Risk Management conference for in-house counsel. Despite being an in-house lawyer for many years, I’ve never actually owned a file labelled “Legal Risk Management” which I could use as a reference for arranging my thoughts on this obviously very important topic ahead of the event, and so it was with some trepidation that I arrived at the conference not really being quite sure what I could contribute.

However, what transpired was a very productive and animated discussion between in-house counsel on their experiences of what legal risk management means to them and their businesses, and I was pleased to be able to contribute based on my experience also as most of the best practice steps will be second-nature to seasoned in-house professionals.

There isn't one specific definition of legal risk management. For the purposes of this post, I understand the term to simply mean “the risk to a business of an event occurring which brings about a legal consequence impacting the business”.

Here are my 5 steps to legal risk management:

1. Conduct a Legal Audit
To be effective, legal risk management must be based on a thorough understanding of the business’ key activities, stakeholders and objectives and this can only be achieved by conducting regular legal audits and working with the business’ management team to analyse the risks, prioritise their management and anticipate the legal requirements of the business.

The audit will also facilitate the management of the “corporate memory”, essential for future due diligence exercises and the storage of key corporate data and documents, and it can lay the foundations for an ongoing compliance and risk management strategy.

2. Communicate, Educate, Co-operate
In-house counsel cannot manage legal risk single-handedly. It’s imperative that the legal risks are communicated to the wider business to ensure they are supported and, vice versa, that the wider business objectives and demands are facilitated in the legal risk management strategy.

One way to achieve that communication is through legal risk awareness training sessions tailored to the audience within the business which is either most exposed to or best placed to handle the risk being communicated. Training sessions are a perfect opportunity for in-house counsel to demonstrate that they are working with the business (not against it), and are also a good pre-cursor to introducing new business guidelines to assist colleagues with the practical day-to-day management of the legal risks which have been identified.

Although some legal risks are stand-alone, don’t forget that many legal risks dovetail with financial, reputational, operational, political, regulatory and tax risks; so, legal risk management is just one part of a more broad risk management strategy within a business. It’s a challenge for those new to the role of in-house counsel to balance their risk-averse nature against both these other risks and the essential quality of risk-acceptance in any successful entrepreneurial business; but, once mastered, this skill will make the commercially aware in-house lawyer stand out in the crowd from those lawyers sitting in their ivory towers.

3. Compliance and Governance Policies
Underpinning any legal risk management strategy is the requirement for a comprehensive set of compliance and governance policies. Policy making is a key tool which in-house counsel have within their remit to positively influence the way in which business is conducted and to set the standard for expected behaviour. It is essential that all such policies have the buy-in and support of the management team, and that the legal department has a defined role in implementing and ensuring compliance with the policies.

4. Operations
The daily operations of a business always prove to be the most fertile ground for legal input. An abundance of legal consequences can be found in supply, manufacturing and distribution chains, protection of intellectual property rights, brand protection (online and offline), pending and threatened litigation, product liability, sales and marketing practice, insurance, property matters, employment and HR practice, industry regulation as well as company secretarial, board and shareholder matters.

Good working relationships with colleagues operating in each of these areas are essential for in-house counsel to play an effective and valued role within the business; the challenge is for the lawyer to be seen as part of the team, and not as an obstacle, to achieving operational outputs and objectives.

5. Legal Resource
The individual character of each business will determine its exposure to legal risk and the management tools required to best handle that risk. Inherent to that is the balance of matching and managing internal and external legal resource, and indeed other professional suppliers to the business. The tough economic conditions are resulting in more businesses expecting their legal teams to reduce head-count and manage costs more tightly, but arguably against a back-drop of increased legal risk. A core skill of the in-house lawyer in today’s world is their ability to manage the risks in this more intense climate by better clarifying the role of the legal function within the business, demonstrating value-add and selecting, managing and getting the most out of their internal and external legal resource.

Every business will have legal risks peculiar to it, but taking the above steps will help manage the risks which are core to most. Please comment and share your experiences of legal risk management.

Wednesday, 17 February 2010

Disc World

As most in-house lawyers to SMEs will testify the role will expand into areas of the business which just aren’t in any way, shape or form legally related; and the area which I’ve found myself deviating into is training and development. Having some experience as a professional support lawyer for a UK Top 15 law firm it’s an area I’m familiar and comfortable with, so I was delighted to be asked to formulate a training and development strategy for my company's senior managers during the latter part of 2009.

One of the key tools which I’ve built the strategy around is DISC, a behavioural profiling tool which aids the individual in recognising their own behavioural traits, those of others, and then allows the individual to adapt their personal style to better influence others. I firmly believe that one of the foundation stones for personal development is to “know thyself” and awareness of your own behavioural pattern is an essential for increased communication and influence both in your personal and business lives.

I’m not the only lawyer interested in this, the DISC profiling system in use today was initially formulated by lawyer and psychologist, William Marston, in the early 1920s born out of his fascination with individuals’ behavioural patterns and it’s now widely used within all types of business the world over.

The DISC model is incredibly insightful, and users are often amazed at the accuracy of the information obtained about themselves in their profile report. One of the reasons for its popularity is that it uses neutral language. There is no wrong or right behaviour in DISC, it uses a “universal language of observable behaviour” (TTI Ltd) to powerfully identify the behavioural tendencies within each of us individually and which make up our unique character. Furthermore, DISC is not a psychometric tool nor is it a measure of knowledge or intelligence; and so it’s a true “leveller” between directors, senior managers and junior staff alike and can be used to create a common language within your business to better aid communication.

DISC itself is an acronym for the 4 quadrants of observable behaviour (all of which are in us to a greater or lesser degree):

Dominance or Drive: results-driven, competitive, risk-taking people show a high D profile. Think successful sports stars, coaches and entrepreneurs.

Influence: charismatic, enthusiastic, popular and charming are characteristics of individuals with a high I. Oprah Winfrey and Jonathan Ross both have a high level of I in their behavioural profiles.

Steadiness: High S individuals portray loyal, devoted, stable and patient behavioural patterns. They are the ultimate safe pair of hands, think Mother Theresa and Ugly Betty!

Compliance or Conscientiousness: High Cs are perfectionists, analytical, accurate, precise and exacting individuals. The Monica Geller character in Friends and most lawyers and accountants will demonstrate a high C in their behavioural profile.

There is also a clever inter-relationship between the individual quadrants of the DISC reflecting whether a behavioural type is motivated by task (D and C) as opposed to people (I and S), whether a behavioural type is active (D and I) or reflective (S and C), and how an individual’s “natural” style changes into an “adapted” style under pressure.

Of course each of the quadrants of behaviour brings with it a value to a business, and a team will need individuals from all quadrants (or an individual operating in each quadrant at the right time) to successfully deliver a project or task. Each behavioural quadrant will however need motivating and managing in a particular way, and recognising the behaviour in an individual is the first step to achieving the appropriate balance of motivation and management.

There are different versions of DISC profiling in use today and a simple search of the internet will reveal providers of all of those versions. The version which I experienced was from TTI Ltd, a licensed supplier of Success Insights Intl Inc and was delivered by Julie Harrison Consulting. I’ve also found DISC Profile Blog full of informative and practical demonstrations of DISC in action.

Thursday, 4 February 2010

5 Reasons for In-house Counsel to use Twitter

I’ve been tweeting as @in_house_lawyer for a couple of months and already I’ve built up a new network of legal acquaintances through that profile; however despite an increasing take-up of all manner of legal service providers using and contributing to Twitter, I’ve found very few in-house counsel out there. So, if you are in-house counsel using Twitter or you know of in-house counsel amongst the Twitterati please point them in my direction!

Here are my 5 reasons why in-house counsel should use Twitter:

1. Twitter is a great information resource. Choose which Twitterers to follow carefully based on content which is of interest to you, and you’ll have a constant stream of helpful data and links on the subject areas you want to keep up to speed with. Twitter users who are looking to appeal to lawyers are incredibly keen to be the first to inform you of a new legal development or to offer a different view on that development. As an information resource it’s flexible, easy to access and free. All very important to the resource and time strapped in-house lawyer.

You can also follow tweets on subjects from outside of the Twitterati you follow by creating tweet columns. Using a service such as Tweetdeck, you can create tweet columns to supply you with tweets on your favourite hash-tagged subject matters.

2. The Twitter environment offers the in-house lawyer an opportunity to forge new relationships with people who might otherwise be outside of their network. Link up with law firms, law graduates, legal researchers, companies offering legal training and development, and key-players in your company’s specialist industry or service line. Follow these people, re-tweet, reply to their tweets and contribute tweets which they’re likely to find useful and you’ll soon find yourself receiving direct messages, emails and Linked-In invitations to connect from the real people behind the Twitter accounts you follow.

3. “If you’re not online, you don’t exist” said Internet Strategist Nathan Snell back in March 2009, and in 2010 that warning rings more true than ever. Twitter offers a simple gateway to improving your online presence and your personal brand which is just as key to an in-house lawyer as to any other profession out there. See my earlier post Branded on the importance of establishing yourself as a specialist in your field via social media.

4. As more and more companies and individuals explore social media, so social media presents the legal community with the need to analyse and advise upon the legal implications of it. Many corporations choose to regulate the way in which their employees use social media and many have introduced social media policies. (For those of you considering introducing your own, Social Media Governance provides an online database of social media policies and guidelines from a number of organisations for research purposes). There’s nothing like familiarising yourself with the social media tools which your company and its staff are using to understand the benefits and risks which it brings to a business and which you’ll be asked to take a legal (and of course practicable and commercial) view on.

5. Under pressure to deliver a value-add to your company? Your Twitter presence is not only an opportunity to market your personal legal brand online, but once out there you’ll be a representative of your company. Use your Twitter platform to raise awareness of legal developments affecting the industry which your company and its customers operate in.