The Lawyers Won’t Let Us
A finely honed bullshit detector is a benefit to everyone. Let’s try a hypothetical conversation to test yours!
“Hey, we should release that under a more permissive license for XYZ reasons.”
“We’d like to, but the lawyers won’t let us.”
If it’s not malfunctioning, you should feel your bullshit detector tingling right now.
A lot of folks think that a lawyer’s job is to protect the business at all costs – that their job is to say “no!” Unfortunately, many places do structure it that way. After all, if a lawyer says “go ahead” and you get sued, the lawyer loses. But if the lawyer says “don’t”, there’s no immediate downside for the lawyer. Eventually the business may collapse from inaction, but there’s always teaching at law school as a backup. So why would the lawyer ever say “yes” in such a situation?
One of the best lessons I learned while at Microsoft was from Scott Guthrie when I expressed concern that the legal team wouldn’t let us break new ground with how we shipped open source.
He reminded me that the lawyers work for us. We do not work for the lawyers. If the lawyers had their way, we wouldn’t do anything because that’s the safest option.
You can see why so many people love the red polo.
Many decisions where legal gets involved are business decisions, not legal decisions. Unless the decision is downright illegal, the lawyer’s job is to help figure out how to do what’s best for the business. Along the way, they should make sure we’re aware of the risks, but also find ways to minimize the risks. At least that’s what a good lawyer does and I’ve been fortunate to work with some.
At the end of the day, even if the lawyer is uneasy about a course of action, they do not get to make the business decisions. That’s someone else’s job (unless you happen to work at a law firm I guess). Perhaps it’s your job.
So when someone tells you that “legal won’t let us do XYZ”, unless they follow that with “because it’s illegal and will land us all in jail and that’s no fun”, you should recognize it as a copout.
Sometimes what they mean is “I don’t really know what’s in the best interest of our business (or I’m too busy to care) so I’ll play it safe and blame the lawyers.”
What you hope they mean is “we won’t do this because it is not in the best interest of our business.” Now that is a fair answer. You may disagree, but it serves as a starting point for a more interesting conversation.