1998 seems like a lifetime ago, where global e-commerce was a futuristic fantasy for ordinary people just discovering the internet. Yet 1998 was year zero for the European Union’s Data Protection Directive – the basis for legislation protecting personal data across member states today.
Outside of the catwalks of Milan, there’s probably nowhere on earth where fads come and go as quickly as in Silicon Valley. For every groundbreaking idea or transcendent success story, there are one hundred others that have just as quickly gone by the wayside.
What role should the general counsel play in a crisis? How central should they be?
All crises require a point person to be decisive and lead the company through uncertainty. Oftentimes, companies turn to individuals from the c-suite to serve in this role. But increasingly, general counsel are finding themselves both coordinating and leading crisis response, given that the fallout often goes hand-in-hand with legal challenges.
The general counsel needs to act quickly by:
a) Defining the crisis.
b) Assembling a team.
c) Creating a flexible plan.
d) Instilling confidence to successfully implement the plan.
Crises come in all shapes and sizes. In some cases, the crisis is so huge that a company’s existence is at stake. But it is equally important to identify when a matter is at the lower end of the crisis scale. It is necessary for the general counsel to classify crises against levels appropriate to a company’s culture and industry.
Levels of Crisis:
a) Level 1: Low – problem identified, but probably only has one day in the press cycle.
b) Level 2: Medium – problem identified and seems significant, but diminishes over time.
c) Level 3: High – problem is an ‘existential crisis’ where the brand is at risk, affecting employees, the board of directors and potentially even the public at large. For a public company, this type of crisis will often have a significant impact on the share price.
Real life tip: Some companies have situation alerts, which immediately warn the GC of an impending situation if a certain number of criteria are met. These alerts can help tease out themes. For example, are there systematic compliance failures which could be building to a major crisis? Are there problems with the chain of command in certain departments or jurisdictions?
A general counsel will typically have a substantial Rolodex of contacts in a variety of industries, who will be able to serve as trusted advisers in a crisis. Advisers will include (but aren’t limited to) people in the following areas:
Real life tip: Don’t panic and ‘over-lawyer’. Less can often be more, as advice may become confusing and contradictory. If a ‘black swan’ event hits, it might appear that immediately consulting a range of advisers is best, but often this is not the case.
When you are in surgery, you don’t want five doctors, each with a scalpel, performing the operation – just one skilled surgeon being allowed to get on with the job.
Information available during a crisis, particularly in the first 24 hours, will often be imperfect. The general counsel must take steps to assess the facts and how they correspond to plans already in place, adjusting responses to the press, regulators and the public accordingly. As more information is obtained, the response plan must also take into consideration regulatory, litigation and communications issues, aligning the strategy of all three.
The company’s employees, particularly those in the c-suite and on the board of directors, will look to the GC to provide assurance that they are effectively handling the process, which means that the GC needs to:
Real life tip: Understand that not all news is created equally.
Social media can descend into noise, and sound bites can become ‘facts’. To avoid this happening, wait for the facts, and assess them thoroughly before making pronouncements in the media. Initial statements can address that all facts are not known, and that the company is waiting to gather these.
As with any leader, the GC needs to remain calm in a crisis in order to be effective. Therefore, the GC:
Using these guidelines, GCs across industry sectors can develop a framework that will not only mitigate damage from a present crisis, but could also avoid future crises.
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Over the past year, I’ve spent a lot of my time talking to GCs, in-house legal teams and partners in private practice, to ensure that what we are doing at The Legal 500 matches up to the needs of the market.