The opinions in this blog post should not be construed as advice, especially not legal advice. Whether you act on anything I suggest here is entirely up to you—I would strongly suggest you take a close look at your employment or contracting agreement and/or take legal advice from someone qualified before you take any action related to my article.
I’m often asked: “Don’t you have something similar to this? Haven’t you done this before?” Seems like an innocent question, doesn’t it? Much of my work involves writing or designing documents that capture complicated subject matter, try to explain something in simple, practical terms, or give advice to businesses about their IT roadmap. I’m good at this work and I enjoy producing these kinds of documents—so over the years, I’ve written thousands of pages, drawn thousands of diagrams, created thousands of PowerPoint slides.
With very few exceptions, every one of these artifacts is owned by somebody else. Most often, my employer, who—by virtue of my employment contract—owns the rights to everything I produce while employed there. Upstream, the work that I do is almost always for a customer of my employer, who is paying typical consulting fees to have me produce it. Their expectation is that anything specific and identifiable that I create for them is kept confidential between our organizations and will not be disclosed to any other party.
I have often wondered whether our customers also expect the work done for them to be unique and limited to them. If you were to ask them, many would say—probably without thinking about it too hard—that yes, since they’re paying quite a chunk of change for our services, they expect the work to be unique to their purposes. But I think that their stated expectations are actually contradictory to what consulting is: most of our customers hire us because we have a lot of experience providing services to other organizations just like them; because we have the proverbial ‘best practices’ that we’ve learned from past consulting engagements; because we’ve done this before.
I suppose we could now dissect what precisely ‘best practices’—knowledge and experience, really—mean in this context. To an extent, of course, it’s what I and my coworkers have in our heads. We’ve seen the pattern before, and we know how to apply it to the new context. I am able to make a useful and valuable contribution because I’ve been in similar situations before. And no customer or employer is offended in the least by my exploitation of my previous experiences, at least not as long as they’re part of the knowledge in my head. In fact, I get hired because of what I know.
But much of what we produce in consulting is too complex to ‘know’ with any degree of fidelity without paper or electronic documents. And while it’s probably safe to assume that I can build the document or diagram again if I’ve built it before, it would be horribly inefficient to actually do so. It would make consultants bored by their work (having to do the same thing over and over), consulting firms less profitable and customers disappointed by how long everything takes.
So here we have a case where the ‘official version’ of what we tell ourselves and the reality of how things are done are completely different. Regardless of all the onerous confidentiality and intellectual property clauses in our employment and master services agreements, it’s pretty much ‘controlled chaos’ out there in the real world. Note that I’m not saying I do this, or other consultants I’ve worked with over the years—at my current firm or past employers—but I think it’s pretty prevalent out there.
The answer, I imagine, is discovered by most consultants as they move up through the ranks. It’s the ‘consultant code of silence.’ Everyone who works at any level of seniority does certain things that could potentially be legally questionable, but nobody talks about them. The key, I expect, is to strike a balance between the practical reuse of certain knowledge assets and the rigorous protection of former clients’ identities and specific business conditions. What’s required is to set up a somewhat porous but essentially functional ethical wall in one’s own mind. If that sounds tricky, it’s because it is.
Here are some effective techniques I’ve seen consultants use:
- When talking about your learnings from other customers, keep it general. The risk of accidentally disclosing competitive information is of course pretty high, especially if you always consult to customers in the same (or similar) industry sectors. Always, always say, “At another customer with a similar set of circumstances, we saw…” instead of, “At our other customer X, we saw…” This should really go without saying, but it’s surprising how many consultants talk to one customer about another’s specific issues. A false sense of familiarity is an easy mode to fall into in consulting (it’s a people business, after all), but it’s best to find other, less problematic subject matter to help build your relationships.
- Harvest the good parts from documents (not the whole document). It makes sense to only keep the good parts of documents because they’re faster to find and easier to reuse in future.
- Genericize all document parts/building blocks before adding them to your library for reuse (minimizes possibility of error). The more identifiable specifics you keep—customer logos, ‘business background’ sections, etc.—the higher your risk that something accidentally gets out.
- Organize your library by subject matter, not customer. If your library is structured by technical or industry subject matter rather than by ‘customer job,’ it’s easier to argue that you’re working from generics than reusing customer-specific material indiscriminately.
- Change (re-write, re-draw) key portions of documents and diagrams before releasing them to a new customer. You know how students that plagiarize are routinely found out? Google. It’s mostly because they didn’t think they needed to re-write the quote/thought/Wikipedia article before trying to pass it off as their own work. It is, of course, a matter of degree: sometimes, making a document fragment more specific to the customer in question before putting it back in circulation is enough; sometimes, it’s better to take the basic idea but re-write/re-draw the thing to be on the safe side. Since you’re working from an existing idea, it should be quick work.
- Publish methodologies frequently. This is a fun—and little known—trick: if something has already been published on the Internet (for example, on your company’s blog or as a white paper), you’re free to liberally reuse it, at least in your own context (by which I mean that you can re-apply it to your documents if it was published by your firm in the first place). As for everyone else’s published methods and materials: copyright applies, so it may be problematic to copy it verbatim for your documents (both legally and ethically) but as with any publication (book, journal article, blog post, etc.) you’re free to incorporate the essence of the thoughts into your work with appropriate acknowledgements. This last point is also one of the few non-contentious, legally acceptable and completely legitimate ways individual consultants can take some of the work they’ve created with them when they change jobs. It is also, perhaps, the only reason you should consider blogging on your employer’s behalf. (And that’s another blog post I’m thinking about writing.)
In the end, I believe everything I’ve said above to be practiced in consulting today, but nobody really talks about it because everybody profits from turning a blind eye. Because of this widespread practice, consulting firms are better at delivering value to customers, and customers actually get better work from consultants, faster.
And while everyone on the business side is complicit, the lawyers keep drafting contracts with threatening clauses about confidentiality and intellectual property rights, and we all sign them. Every so often, someone doesn’t pay attention while playing the game and gets hurt in the process (usually as part of an acrimonious parting of ways between employer and employee). This mechanism serves to preserve the delicate balance of the consulting world, and does so very effectively. It’s similar to the law in general: you don’t get caught every time you do something dumb, but the fact that there are deterrents keep you from committing really egregious transgressions.