Containing Lawyers

Nothing will screech a campaign to a halt quite like a lawyer who feels left out. Most people who’ve been in advertising for just a few years can tell stories about entire creative concepts getting nixed, campaigns getting delayed, and even media deals getting broken asunder.

Most large agencies have a legal department that reviews all the proposed creative and media. It’s particularly in these more-organized legal departments that the role of the advertising counsel can get a little out of hand.

I should say right off that there are plenty of creative ideas and media plans that should be stopped. Some common illegal concepts involve the following:

  • False claims (“This shampoo cures acne.”)
  • Trademark infringement (“Try our Juaper at El Burger Kingdom today.”)
  • Illegal contests (“Buy more to increase your odds of winning.”)

But, often, the legal person at the agency just gets a little too involved with the creative. I once had to deal with a lawyer at my Sun Microsystems client; she perceived herself a copywriter. A very simple online game we were putting together in the early days of Java became a copy nightmare when the lawyer started mixing her legal advice on our copy with her own style changes. Unfortunately, her sensibilities were quite different from our target market’s: geeky Java programmers.

I had the uncomfortable task of having to ask regarding each change, “What legal issue might we be raising if we kept the original copy here?” It wasn’t a fun process, especially because this type of friction causes a deterioration of the lawyer-marketer relationship, which sometimes needs to be quite strong.

It comes down to a very human quality: Lawyers, like all of us, don’t want to feel left out. Imagine if your job were to approve every piece of paper that came across your desk. Your level of scrutiny would likely naturally grow to the point at which you actually got to reject a few of those papers. Otherwise, you’d be completely superfluous.

Likewise, the agency that sends perfectly legal copy to its lawyers every time is just begging for interference.

That’s why I like to keep my lawyers on their toes with the occasional legal doozy. About once a quarter I’ll try to get one of my account supervisors to insert something ludicrous into a campaign that gets sent for legal approval.

When idea No. 3 is that “10 percent of your purchase price will go to the Medical Marijuana Foundation,” the lawyers are eager to let the first two concepts breeze by. Of course, you have to make sure the lawyer is paying attention that day. These planted ideas aren’t very popular among clients. Best that they not know (that’s another story.)

Incidentally, for the journalists out there, this works great with editors as well. You can keep them happy by letting them excise swears and metaphors in poor taste while they let go all those interesting words and phrasings you are trying to insert.

Some steps to make sure you get good legal advice, and only legal advice, include the following:

  • When sending copy to lawyers, don’t just send the words. Write up a short memo that indicates which legal issues might be of concern. This will frame the issue as a legal matter rather than as a matter of creative style.
  • Be open with the lawyers. Let them know that the account and media people have a very limited role in the creative execution and that their own role as lawyers is a similar one.
  • Give them enough time to get through the materials before they’re needed back, but don’t give them too much time. Idle lawyers are the devil’s helpmates.
  • Make sure they know that their legal advice is taken very seriously and is fed back to the creative folks. I like to have a conference call with the lawyer and the relevant creative person, just to allow the lawyer to listen in. I’ll have the account person explain the legal problem to the creative person, and the lawyer can elaborate, if necessary. This makes everyone feel a part of the team.
  • Call them on their mistakes. If a lawyer changes something for a stylistic reason — even if it’s an insignificant change — be sure to make a big deal out of it. You want to set precedents that such changes constitute improper interference. Once they start getting away with it, no matter how innocuous the incident, it will be hard to go back.

The lawyers I’ve dealt with in ad agencies are some of the nicest lawyers I know. They tend to be pretty easy to get along with, especially if they remain clear about the limits of their role. It’s our responsibility to help define that role — and properly contain the lawyers.

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