Community Perspectives: Have you ever had to be the messenger of a legal opinion, regarding an existing risk, you knew would be poorly received by the business?

In-house counsel weigh in on the delicate relationship between the business and legal teams.

(Author) Counsel

Have you ever had to be the messenger of a legal opinion, regarding an existing risk, you knew would be poorly received by the business? How did you remedy the issue without becoming collateral damage? Warning of the risk and providing options to avoid. They view it as blocking.

General Counsel Responses:

In the best cases, I had a good relationship with the business managers, and we found practical ways to work around the risk. In the worst cases, I had to emphasize that the desired path was unworkable and keep my manager up-to-date so they would support me from becoming collateral damage. I always made sure my manager had my back before I met with the business. It’s a tricky line sometimes.
Every day.
I learned this from my Agc. Sounds obvious but when the risk is small you sound a small alarm ie slack message to the business manager. When the risk is big you sound a bigger alarm. Keep your manager in the loop if it is something that is high risk. If something is high risk, you should definitely work with your manager and the gc to determine who should be making the appropriate business decision. You don’t want a 2nd year business analyst making a risk decision that likely jeopardizes the company. In order to build relationships you should use a smoother way of saying that the business manager is assuming the risk without actually saying it in an email. No one likes working with someone who always covers their ass. A good example of this is sending a confirmation email or slack message after the meeting just “making sure” you understood how to revise the document.
All the time. I try to clearly state the risks and worse-case scenario and offer alternative ideas.

Counsel Responses:

I tell thé GC what is going on and he always backs me. Then I provide an opinion on the risk to the business person and always try to provide an alternative. I tell them “I provide legal advice to the organization, you make business decisions and are responsible for the legal risk outcome.” If I get the sense that they are moving forward - or find out they moved forward, I let the GC know. Sometimes he calls them - or reports it to the Board of Directors (this rarely happens). Other times he just tells me to write a short memo to him about the conversation and then we wait to see if it blows up. You have to recognize most times you are just giving advice - if they don’t take it, they own the risk. If it is a person engaging in true illegal activity, you have an obligation to report it to higher ups and not participate it in.
I'm new to being in house, so can you please explain what being collateral damage in these situations looks like?
I tell them some xyz entity is up to nonsense again, so please just do what they say until we’ve got a better workaround. (We usually find a workaround).
Are you just warning them of the risk or blocking something they want to do?
Then make it clear to them before providing alternatives that they can accept the risk and do the stupid thing they want to do, and you are only doing this bc your boss has asked them to document the legal departments position. With some teams you have to let them screw up periodically to remind them why they should listen to you
Usually try to have alternative solutions available. Sometimes, that’s not possible. I’ve found that for my team when we know something is going to be a dumpster fire we let people higher up the chain know and they’ll typically back us up. We have a culture that is very compliance/risk aversion first though.