How in-house counsel should talk to their companies about regulation

Even though they may not like the concept of regulation, CEOs and the companies they run — especially those in the start-up space — tend to appreciate it once they need it. And in the atmosphere since the collapse of Silicon Valley Bank, that appreciation for the type of regulation and regulatory intervention that could keep such a contagion from raging out of control is palpable.

Still, this overall attitude among company executives raises a good question — As an in-house counsel or compliance specialist, how do you talk about regulation to your management and executive teams?

One way that has proven effective is to approach the issue of regulations and compliance as an issue of brand risk. Look at any corporation or financial firm from Main Street to Wall Street, and you’ll see that failure to properly comply with regulatory requirements can cause significant damage to an organization’s reputation and severely impact the goodwill of its brand in the eyes of consumers and the market.

Worse yet, any damage to the company’s brand may be long-lasting and is incredibly hard to undo and shake off.

That’s why it’s so crucial that in-house counsel should position compliance as a brand issue — that if the company isn’t in compliance with regulation or the law, it could damage the brand. And simply put, being the type of company that doesn’t adhere to compliance rules won’t give the company the kind of reputation it wants — and certainly doesn’t align with the brand the company wants to display to its customers and the overall market.

“A company’s reputation and brand image in the market is crucial to its success, especially in a retail or consumer setting,” says Sangeetha Raghunathan, a Partner in Corporate & FinTech at the law firm Gunderson Dettmer. “Any damage caused by improper compliance with regulatory requirements can be very harmful to the company going forward so you can get the ear of the CEO and the business about compliance by positioning it as a brand issue.”

Increasing in-house influence

Before an in-house legal or compliance team can make the case for stronger regulatory compliance to the company’s management and executive teams, they would be wise to first assess how much influence the legal and compliance functions have on business strategy and day-to-day decision-making.

Clearly, it’s much more difficult to make strong cases for adherence to compliance regimes that management might view as overly onerous if your insights and opinions don’t carry much weight, especially around the executive table or the corporate boardroom, and if you don’t fully understand the business.

However, there are ways in-house legal and compliance professionals can leverage their influence across the company and earn the ear of those critical decision-makers. For example, in-house legal and compliance teams can make sure they reach across functions and build relationships across functions, such areas as product, engineering, finance, and even IT and HR. This relationship and collaboration will give legal and compliance teams a line of sight across the whole of company operations, allowing them to better manage, understand, and assess the risk on a business-wide basis. It will also allow them to have partners in the business who know you’re on their side when you raise a compliance concern.

In fact, it’s even a smarter move to think outside the box of these relationship channels and try to learn about the business in other, less traditional ways. For example, access various Slack channels or other online forums to find out what is going on, albeit taking what you learn with a grain of salt and verifying everything before you act.

“In this way, it’s actually an important attribute to be curious and connected — simply because you need to know what is going on in the business,” says Raghunathan.

This outreach also should be expanded beyond the company itself, especially in situations in which you are dealing with compliance or regulatory issues that may impact the entire industry and not just your company.

Staying in touch with trade associations, for example, can provide a keen source of market information and also be good allies if your company gets into trouble, such as being targeted with litigation or a regulatory agency investigation or enforcement action. Trade associations can file amicus briefs in support of the company, particularly on antitrust issues, and can even aid in locating resources to help lobby the agencies or Congress on the company’s behalf.

And despite a string of losses in court for regulatory agencies like the Federal Trade Commission and the U.S. Department of Justice, many regulatory and enforcement agencies are not changing their stances. In fact, there seems to be a lot of activism among government agencies right now, so it’s critical that the legal and compliance functions within companies foster allies both inside and outside of the company.

What about AI regulations?

One of the most head-scratching questions in corporate and regulatory circles today is how the regulatory framework around artificial intelligence (AI) will look especially around AI.

OpenAI, the creator of the publicly available ChatGPT generative AI product, is running around saying it wants regulation, while governments — both in the U.S. and the rest of the world — are running around trying to figure out whether and how to regulate this latest innovation.

This makes it critical for the legal and compliance functions of any company that is in this space — and even those just adjacent to it — to keep a watchful eye on any regulatory proceedings involving generative AI. And while OpenAI and other AI companies may be pursuing a smart regulatory and lobbying strategy, they should remember that going to the government and simply saying you need regulation, does not give you full leeway to continue to move fast and break things.

It will be extremely interesting to observe whether and how those companies and start-ups deep in the AI space develop their own responsible framework towards AI until the government’s own regime of regulation comes down.