How’s this for a nightmare scenario: You get a call from the company’s Chief Operating Officer informing you that Ms. Smith is leaving the company to go to work for a competitor. You’re told she has knowledge and copies of many confidential projects and strategies, including key marketing strategy presentations. The COO wants to know what can be done to protect the company. You tell him not to worry because Ms. Smith signed a confidentiality agreement when she joined the company and therefore everything will be fine. A few days later you need to go back to the COO and tell him everything might not be fine regarding Ms. Smith and, in fact, according to outside counsel, the company has likely failed to do a number of things necessary to protect some of its trade secrets, meaning there may be little that can be done to stop Ms. Smith from divulging those items to her new employer – your competitor.
As in-house counsel you can sum up your priorities in two categories: “Maximize Value Creation” (e.g., M&A) and “Minimize Value Destruction” (e.g., defending “bet the company” litigation). Pretty much all legal work you or the department do will fall under the above. A “crisis” situation falls under potential value destruction and can come in many forms, including major litigation, data breach, government investigation or criminal indictment, environmental catastrophe, social media “meltdown”, product recalls, death of the CEO, campus intrusion, FCPA claims, just to name a few. How you and the company respond to a crisis will go a long way to preventing or limiting damage to the company, including its reputation and brand. In-house counsel should play a key role in the strategy and plans to manage these risks should they arise. Ask yourself this question: “If [pick a crisis] happened today, do I know the exact steps the company and I would take in the next 24 hours?” If the answer is “no”, then it’s time to get cracking.