Product Counsel: Origin Story

This post is co-authored by Nicole Wong and I.

One of the best jobs either of us have ever had, didn’t exist before we had it.

We both started as lawyers in Silicon Valley firms. Alexander joined Google in May of 2003 as an IP Counsel. Less than a year later, Nicole joined as Senior Compliance Counsel. For both of us, the pitch was some combination of a bunch of our favorite areas of law, including privacy, content, consumer protection, copyright, open source, and jurisdictional issues as the company’s product ambitions and international footprint grew. As in many start ups, our actual jobs were to do whatever needed to get done.

Gmail launched in April 2004 (on April Fools Day -- don’t do that) and that marked the beginning of Google’s explosion in terms of number of products, including Book Search, Maps, Chat, and the acquisitions of DoubleClick and YouTube. Google grew not only in terms of its product offerings, but in number of users, revenue, the number of countries it was in, and its impact in the world. The stakes got MUCH higher while product, operational and, of course, legal complexity exploded.

We both set to work trying to figure out how to help Googlers launch successful products that were legal (at least in the countries where we operated). We each had some experience with this as outside counsel, and we were both pretty unsatisfied with the typical model of legal review for products.

That model was taken from big companies which historically treated legal review like part of an assembly line (towards the end). The product teams would develop products and then check in with a line of legal subject matter experts for sign-off before launch. For example, a product that matched people to their perfect pet might get designed, written, tested, and be ready to launch when it was then taken for review by a commercial lawyer for the terms of service, an intellectual property lawyer for trademark and copyright clearance, a patent lawyer in case anything new had been invented, a regulatory attorney for regulatory compliance (sometimes including privacy), and maybe an export control lawyer and a similar set of experts in the countries where the product was launching. Law firms are typically departmentalized in similar ways, aligning along legal subject matter specialization, and consequently smaller companies who don’t have in-house counsel often need to hire multiple specialized lawyers.

There are four major problems with this process:
  1. legal approval in each area is binary and too late: by the time the product is built, there is a large amount of pressure to launch with little ability to make more than cosmetic changes to the product;
  2. legal approval is too fragmented: a product might need several different legal approvals (or rounds of consultation and then approval) from in-house and/or outside counsel. That would take too long and be very inefficient for a product team, which would have to explain the product to each new counsel. On top of that, no counsel would be able to weigh risks across domains to come up with more holistic tradeoffs.
  3. legal would understand the law but not necessarily the product: dividing up legal counsel by area of legal specialization means that each lawyer has a depth in law and a breadth in products.
  4. legal becomes “them” versus the product team’s “us”: last minute binary review by people who don’t know the product or the product team unnecessarily forces misalignment between the team trying to get something done for the users and the business, and the lawyers. That misalignment can result in all sorts of bad, from simple misunderstandings to adversarial behavior.
Taking our lead from Google’s first lawyer Kulpreet Rana and the way many commercial legal teams already functioned, we started working at the beginning of the product process rather than the end. We joined product teams and tried to get deep understanding of the product goals early, so that we could help them meet those goals with the right legal considerations. That meant going to a lot of meetings where product teams struggled to define and execute on new product and feature designs, raising legal issues, and working through alternatives. We tried to help our teams remove obstacles to their launches and refine launch processes so that the teams could deliver more easily and understand legal constraints that would result in us later blocking launch. We consolidated legal review so that the team could get answers from fewer lawyers and feel that those lawyers could properly balance risks and benefits in a holistic way. That meant that each of us would be responsible for a set of products on the core legal issues those products would face at launch.

This approach is not without downsides. Perhaps the biggest is that product depth can come at the expense of legal depth, which meant that we sometimes incurred costs working with outside counsel and experts in legal areas and countries outside of our expertise or missed legal issues. However, we remain convinced that the vast majority of significant mistakes in-house departments make in our industry are the result of not understanding the product rather than not understanding the law. Another downside is that while being part of the “us” of a team is satisfying, can result in a much better understanding of a product, and better teamwork in identifying and fixing problems, it can also mean you are in the team “groupthink” as opposed to removed from it. Careful attention must be paid to all of the ways to reduce groupthink and it is imperative that you actively seek input from folks outside the bubble if you are going to effectively understand the various impacts your product decisions are likely to have in the world. We found it really helpful to discuss product features with advocacy organizations and they frequently improved the products. But, there were also definitely times we screwed up.

The actual role of “product counsel” grew out of the fact that our previous job descriptions didn’t make much sense given how we were doing our jobs. So we started thinking through names. Originally, we liked “launch counsel” because it was active, aligned with what our teams were trying to do, and could describe a bunch of different areas of law. Eventually we settled on “product counsel” because it was even more descriptive of the alignment we hoped for, and was tied to the whole lifecycle of a product from idea generation through maintenance and refinement, not just launch.

Our first job posting was in February 2004. It read:

Google is looking for experienced and entrepreneurial attorneys to develop and implement legal policies and approaches for new and existing products. The Product Counsel will be responsible for a portfolio of Google products across many legal subject areas including privacy, security, content regulation, consumer protection and intellectual property. Indeed, the only product legal matters with which this position will not be deeply involved are those that are strictly patent or transactional in nature, which are handled by other existing Google lawyers.

Passion for and deep understanding of internet.
Very strong academic credentials.
Solid understanding of Internet architecture and operation.
Ability to respond to questions/issues spontaneously.
Demonstrated ability to manage multiple matters in a time-sensitive environment.
Strong interpersonal and team skills.
Excellent interpersonal skills, dynamic and highly team-oriented.
Flexibility and willingness to work on a broad variety of legal matters.
Superior English language writing and oral communication skills.
Sense of humor and commitment to professionalism and collegiality are required.
California Bar

Note the many mistakes in that posting. For example, the Internet is referred to with both lower-case and upper-case capitalization (back then I was incorrectly not capitalizing it). Ug.

Even so, we were very fortunate to recruit an amazing set of folks at Google to become the first Product Counsel. Some of the originals who defined the role were: Glenn Brown, Trevor Callaghan, Halimah DeLaine, Brian Downing, Gitanjli Duggal, William Farris, Mia Garlick, Milana Homsi, Susan Infantino, Daphne Keller, Lance Kavanaugh, Courtney Power, Nikhil Shanbhag, Tu Tsao, and Mike Yang (in alphabetical order). The team was eventually about forty-strong by the time we left and worked across many countries. The idea of it spread relatively quickly in the industry and now LinkedIN lists thousands of product counsel.

Product Counsel, particularly when we were still doing it and not just managing people doing it, was one of the best jobs we have ever had.

1 comment:

WT said...

Awesome -- I've always wanted a full understanding of what "product counsel" really means. It does sound fun!