In December 2019, in partnership with Audience Audit Inc.,Toerek Law launched a survey to gain insight into the attitudes and motivations of marketing agency decision-makers with respect to legal services.

While we couldn’t have predicted what was to come in the months to follow, I am grateful that 224 of you answered the call when you did, and provided inside information on how you approach the not-so-glamourous aspects of running your agency.

The goal was to identify your most prevalent legal questions and worries, and discover how you felt about and approached your common legal needs. We also wanted to know about the tools, training and resources agencies were most likely to need to feel protected.

While we had planned to share these results earlier in the year, as things changed quickly for our clients, we also quickly pivoted to address the urgent needs for contract renegotiations, remote office concerns related to taking a business virtual and other critical responses for agencies.

While the world has changed since we closed the survey back in January, the results of the research were amazingly predictive about the challenges agencies are facing with legal issues. The events of this year only served to reinforce the findings.

Here’s a sneak preview of some key findings for you to consider as you assess your agency’s legal position.

Getting to Know You

We partnered with Audience Audit Inc. to design and field a custom survey (known as a “quantitative attitudinal segmentation study” – yes, I learned about research!) for owners or leaders of independent marketing, advertising or PR agencies.

The result was 224 agency leaders responded, with most of them owners of the agency, with the majority of agencies averaging between 10-25 employees range and some larger.

Based on the results, Audience Audit was able to frame agency leaders and owners into three “attitude” categories related to behavior surrounding legal matters, which were labeled:

• Proactive & Protected
• Exposed & Anxious
• Lawyer Avoiders

What did the categories mean? 

Exposed & Anxious segment members are concerned about their agency’s exposure and would love to have more access to legal services, tools, guidance and more.

Proactive & Protected agencies trust lawyers and consider them strategic partners in their business and agency operations, holding likely long-term relationships with their legal representation and contacts.

Lawyer Avoiders need no further explanation about how they feel about formal legal process, but they revealed interesting attitudes about accessing legal support more reactively or through non-traditional means (such as via online tools).

Key Legal Issues and Findings 

So, what did we learn about the agencies in these three categories? A lot!

First, the top legal issues that our respondents face include: 

1. Client Contracts: Developing the right master services agreements, nondisclosure agreements, etc. for management, enforcement, negotiations and more.

2. Freelancer Management: The legal aspects of working with freelancers, including contracts, work ownership, etc.

3. Copyright and Trademark Issues: Including helping clients protect trademarks, making sure they know how to properly use copy, graphics, and other assets, and own what they need to own.

4. Data and Privacy Regulations: Existing compliance and regulations as they continue to emerge.

Per the survey, 32% of respondents say their agency has been party to a lawsuit. This percentage does not vary significantly by segment.

The majority of respondents say their agency has had to address client contracts (64%) and freelancer contract or work issues (57%). Exposed & Anxious segment members are much more likely to have experienced either of these, as well as copyright, trademark, data privacy and social media compliance issues.

Next, we wanted to know about the tools and documents agencies routinely need.

The legal tools most commonly used by agencies responding to the survey are employee policy handbooks (used by 57% of respondents), contracts for independent contractors or freelancers (56%), and employee agreements (53%). Non-disclosure agreements and client master service agreements are also used often (48% and 45%, respectively).

Less common are website privacy policies (28%), intellectual property license agreements (17%), social media policies (17%), trademark searching tools (16%) and influencer marketing policies and agreements (13%).

On the topic of non-disclosure agreements specifically, 80% of Exposed & Anxious respondents say their agencies use these agreements, compared to 51% of Proactive & Protected and only 23% of Lawyer Avoiders (who are least likely to use any of these legal tools).

Ironically, the agencies most concerned about being protected may actually be more protected than their competitors; possibly because of their heightened concern and awareness of the risks of lacking legal protection.

Many agencies in the survey have clear gaps in policies and procedures for prevalent and high-risk activities such as privacy, influencer and social media marketing, and trademark infringement.

Also, only 26% of respondents say they understand the full range of their agency’s intellectual property “very well” and 40% say their understanding is “OK at best.” This equates to a wealth of untapped opportunities for agencies to discover right within their walls (virtual or concrete) and turn into additional revenue.

Summary and Analysis – The Opportunities for Agencies Now

There are two major opportunities for agencies that I observe based on the survey results.

On the topic of contracts, what we’ve always known is that these “little hinges” move such huge doors in terms of providing agencies better negotiating leverage, less time to get resolution, and savings of both time and money. The opportunity here is for agencies to get the right contract templates in place now to be ready to deal with their next deal, transaction or business situation.

What I observed during the pandemic is that some agencies that were underprepared in this area had less leverage to negotiate with clients, vendors or landlords who sought small or big changes in the relationship. Take the learning opportunity here by making this your agency’s catalyst for getting proactive processes and templates in place now.

In addition, there has never been a better time to examine your agency for new potential revenue streams by monetizing your intellectual property: online learning programs, experiential virtual events, teleconsulting, new agency work models, etc. Any of these opportunities that offer the chance to generate new revenue dollars are worth taking the pause to take proper steps to identify and protect your intellectual property before going to market.

Thank You to All Who Contributed 

If I’ve learned anything in the more than 15 years of Toerek Law and more than 80 podcast episodes of The Innovative Agency, is that stagnation simply won’t cut it in our modern environment.

I look forward to sharing more soon about how we’re advancing our Firm’s offerings to meet your changing needs, with the comfort of getting to know a lot of you – and what your agency needs –  much better through this survey.

And if you were one of our respondents, thank you very much for taking your time and for your part in advancing other independent agencies along with it. We’ve heard you, and we’re taking action to serve you based on what you’ve told us.

By the way!!! Check out my podcast with Drew McClellan on Agency Management Institute for more insight and commentary on the survey results, and what you should be doing now to prepare for the next challenge around the corner. https://agencymanagementinstitute.com/podcasts/agency-attorney/