Marketing professionals are often tasked with briefing internal and external legal teams to provide sign off on a proposed marketing campaign. This will often occur once your external agency has developed mock ups and other collateral. A common experience is then waiting anxiously, or worse, simply getting a ‘no’ in response. How and when you brief your legal support can reduce the likelihood of such issues happening.
Your Legal Team’s Mindset
The first consideration is what your legal team is seeking to achieve, why they exist, and what role they have. A lawyers role is to provide legal advice and representation to their clients. Those clients may be internal stakeholders (for in-house lawyers) or your business.
Lawyers have a duty to act in their client’s best interests, to be honest, and to ensure that their clients can make informed decisions with a focus on identifying and mitigating legal risk. Legal risk in this context may include a regulatory penalty (such as a fine issued by the Australian Competition and Consumer Commission), or litigation (the business ending up in court).
Adding value for a lawyer means not only helping the business find new clients and expand but also protecting the business against legal risks which typically cost the business significantly (both in monetary terms but also in lost productivity and time). Good lawyers are more than gate keepers, they care about their business, provide pragmatic and timely advice and work with cross functional teams to create value and reduce risk. In practice, this often means coming up with alternative wording and messaging that both achieves your objectives and carries low legal risk.
The Best Way to Approach Legal Review
You understand your priorities and objectives and what your lawyers are looking for, so what is the best way to brief them?
The first step is to ensure that they have sufficient time to review what you are asking them to review. That time should involve a face to face or virtual catch up so you can explain what you want to do and why, time for the lawyer to review the copy and collateral and time for revisions.
When you put a brief together, ideally you would have already considered legal risks based on your own training and experience. Legal risks that you will commonly need to consider include misleading and deceptive conduct under Australian Consumer Law, implications in terms of privacy and other specific regulatory obligations, and the capacity of the business to deliver on what is promised. Attaching a pre-brief checklist will go a long way to helping smooth the process, we include some items you may wish to include below (please ensure you create your own checklist or copy and paste the checklist into word before use)