Your campaign, your brand, your company, etc. Is a fast mover, always at the cusp of the next new thing. Every time you have gotten a legal opinion it has always slowed you down. Much like a child who learns not to ask the ‘no’ parent, you have also learned to stop asking. You haven’t been sued out of existence and Federal regulators haven’t knocked on your door. So do you really need those darn expensive lawyers?
A Matter of Time
While I have a conflict of interest in answering that question, the answer is maybe not. It actually depends on what your end game is and who you are. If your end game is simply buzz and then you exit the space, go crazy. If you want to start-up a company, I think you want to be around for a while. You need to consider the possibility that you may have a legal issue here and there, so you need to consider them. That may not mean finding a lawyer, but it is easier. If you are an established company, you probably have the benefit of having a lawyer or two to talk to. Find them and talk.
Quite frankly in this space of emerging technology where the law is something of a moving target, it is only a matter of time before you find yourself fighting some issue here or there. When I talked about being sued or regulators knocking on your door, I should have added a “not yet,” as the next sentence.
Start-ups – Judgment Proof? Perhaps, Perhaps Not
For start-ups and folks just breaking into the game, I think generally the answer is a qualified no. Unless you have the benefit of a friend or a partner who is a lawyer and can do some leg work for you, you probably can’t afford a lawyer, unless you have very generous angel investors. Even in those cases you are probably better served by spending your resources on a better product or service.
There is a phrase that lawyers throw around – judgment proof. Phrased another way, “you can’t get blood from a stone.” The idea here is that you do not have enough assets to satisfy any judgment against you.
Some of you may be exclaiming that this is the answer. You are too small and you have no assets, right? The complicated answer is not exactly. If you are comfortable with not having a business at some point, go ahead and rest on the “I am judgment proof, therefore I don’t need to care about the law.” This can be a viable strategy. Just go out of business. There is a twist you need to worry about. Depending on how you structured your company, the judgment may follow you personally.
Start-ups – Better Alternative
I beg your indulgence with my straw man argument, because I don’t recommend this as your strategy. Mainly because there is a better way. Plus, having a judgment follow you personally is not exactly a fun way to start up that next venture. The better alternative is to be your own lawyer to a certain extent.
The laws in emerging technology are, to be frank, emerging. Existing laws still apply but the application of them is the rub. Even seasoned legal professionals are doing a little bit of flailing around. If you are smart enough to have a product or service that has some traction, you are smart enough to do some leg work.
Do the right thing. Apply your own moral code to what you are doing and try to do the right thing by your users and the community at large. There may be a balancing of interests going on here, so try your best. I think Pinterest is a great example of balancing interests. They have had their issues but generally the increasing problems have been outpaced by the increasing acceptance of the platform. This gives them some breathing room to move from spunky start-up to established company.
If your moral code needs support, or if you are not comfortable just winging it, there are alternatives out there to finding someone who can advise you. Look at alternative arrangements. Your revenue structure probably doesn’t support full-time staff, nor do your problems. You can put someone on retainer, or you can bring someone in who not only understands the law, but wants to help your business as well, and is experienced enough to do that as well. Or look at some type of part-time general counsel. Maybe even find other start-up entrepreneurs and gather together to bring someone in to help you all. Start-up incubators may also provide some assistance in this area. I think there are good cost-effective alternatives there, but lawyers can be worth the cost when you find yourself having to explain to a regulator what you have been doing with that customer data.
If you are an established company with resources or a company that doesn’t want to just leave the space when problems come, find a good lawyer. They may be in the most unexpected of places, but folks who understand not only the law, but this space and your goals are out there.
I am going to turn back to the judgment proof concept to talk about another concept, deep pockets. This is a strategy used when identifying defendants. The idea is you find the folks with the deepest pockets and target them. As an established company you have the deep pockets.
Your reputation is at stake as well. If you don’t do the right thing, you risk not only your efforts in that space, but also your reputation apart from that. How do you feel about Sony after their data breach in 2011? A problem in this space, such as privacy breach, misuse of customer content and the like may hurt your reputation just as much.
Don’t Kill The Lawyers, We’re Nice People
Shakespeare’s cry against lawyers was actually an acknowledgment that the first thing a tyrant must do to eliminate freedom is to kill all the lawyers. You may think you are freer without legal advice in this area. Freer to do what you want. If you are comfortable with the possibility that you are risking everything, please feel free to go without some legal analysis.