By Ramona Morgan, Sr. Associate
Introduction
Recently, within days of each other, I observed two distinct approaches by mission-driven organizations and their legal counsel. The two scenarios highlight a critical idea: aligning policies with the spirit of relevant regulations, even in the absence of legal requirements, stands out as a distinct best practice. One organization conscientiously recognized and embraced this perspective, integrating it into its legal strategy, while the other became mired in unilateral decision-making instead of collaborative efforts and made a critical misstep.
These companies’ distinct initial engagements with their external counsel shed light on a key measure relevant to all organizations: the integration of legal counsel into your organizational culture and strategy. This might take the form of an annual wellness check or broad introductory sessions at the beginning of a new engagement. These conversations go beyond mere formalities to genuinely acquaint your attorney with your organization’s mission, values, and ethos.
This foundational meeting is not just a procedural step; it’s an opportunity to ensure your legal advisor is fully attuned to your organization’s objectives and nuances. By doing so, you empower them to provide guidance that is not only legally robust but also strategically aligned with your organization’s vision, fostering a more integrated and effective partnership.
Case Study #1: Engaging Early — Building a Mission-Driven Legal Foundation
In a recent conversation with the COO of a nonprofit organization that helps students from diverse backgrounds attain prestigious internships, she described her approach to creating institutional policies and frameworks. She noted that while the organization does not receive federal education funding and is not explicitly bound by Family Educational Rights and Privacy Act (FERPA) rules that cover data privacy at educational institutions, she nonetheless consults with experts in this area so that the organization is aligned with the spirit of regulations intended to provide guidelines, direct privacy practices, and address how information is stored, shared, and protected.
It’s worth noting that while the COO is not in a formal general counsel role, she is a lawyer and so she was very aware of regulatory frameworks and the ways these frameworks can intersect, as well as how policies can set the tone for an organization and achieve some degree of risk mitigation.
In addition to engaging with very specialized lawyers, the COO took the time in each of these engagements to convey the organization’s mission and values (i.e., core principals) and the need to safeguard its well-being far into the future because the opportunities it provides are so critical for young people. She therefore explicitly incorporated these values into the legal strategy. This early and intentional alignment provided a strong, value-driven foundation that permeated the organization’s operations and decision-making processes.
Case Study #2: A Missed Connection — The Risks of Overlooked Alignment
Conversely, the second organization’s experience underscores the risks associated with insufficient early legal engagement regarding organizational values as they relate to new school policies. This entity, an independent school that is also not explicitly bound by education regulations regarding privacy and data handling, encountered significant hurdles when it became evident that its legal policies, formulated without a thorough grounding in the organization’s mission, were misaligned with its core values.
In this particular instance, the issue arose when a questionnaire was sent to pupils’ parents that contained what some parents considered to be invasive questions regarding medical and personal information that was not relevant to in-school performance. Not only did the notice fail to recite procedures to safeguard this information as the school would have been required to provide under FERPA, but the notice also indicated that the school was free to share students’ information with third parties at its own discretion and, further, it explicitly stated that once furnished to the school, this information would no longer be considered privileged.
As a result, some parents expressed concern that the school, whose core values revolve around the well-being and protection of its students, was not doing enough to safeguard pupils’ personal and private information. This produced the odd result that the school had essentially stripped away the layers of legal protections students would have had at a public school without any understanding of the implications for school culture and the increased litigation risk exposure The resulting need for policy reevaluation and realignment on the school’s part highlighted the impact of neglecting initial value-centric legal discussions.
The Imperative of Initial Value Alignment Discussions
The experiences of these organizations emphasize the critical need for in-depth discussions with legal counsel about aligning not just with the letter of the law but with the spirit of best practices in regulatory compliance. Below are some steps your organization can take to further this strategic legal alignment:
- Embedding Mission Values in Legal Frameworks: Starting with a dialogue that integrates the organization’s mission and values into its legal strategy ensures every decision reflects these core principles, fostering an authentic and aligned organizational identity.
- Collaborative and Inclusive Policy Development: Encouraging a culture where policy development is a shared process reinforces that legal strategies are consistently aligned with the organization’s values and regulatory best practices, enhancing organizational cohesion and integrity.
- Adopting a Best Practices Approach: Organizations should strive to transcend basic compliance, adopting a best practices approach that clearly articulates their operational standards. This proactive stance not only elevates the organization’s standing but also ensures it is seen as a leader in adhering to and exceeding regulatory expectations, setting a benchmark for excellence in its sector.
Conclusion
The divergent paths taken by these two mission-driven organizations highlight the essential role of strategic legal dialogue in establishing a foundation for organizational success. By ensuring that initial legal discussions encompass a commitment to exceeding mere compliance and embracing best practices, your organization can secure a strategic advantage that aligns its operations with its core values and the highest industry standards. Such an approach can solidify both your legal and ethical footing.
