Inside Axiom

Best Practices for Product Counsel

May 2024
By Wendy Thurm

Over the last 20 years, corporate law departments have increasingly employed attorneys as product counsel. These in-house attorneys serve as the primary law department contact for business teams that develop new and updated products and services. You might find product counsel more frequently at technology companies, but the role isn’t limited to legal advice about new tech products and services.

This article will discuss the history and evolution of the product counsel role and best practices for attorneys who carry out those functions.

Where the idea for product counsel originated.

Alex Paul, an experienced product counsel for several tech companies, recently conducted a CLE webinar sponsored by Axiom on the role of product counsel. Paul explained that the concept of product counsel originated with Alexander Macgillivary, a deputy general counsel at Google from 2003 to 2009. According to Paul, Macgillivary explained that Google added in-house lawyers to product teams in order to obtain a “deep understanding” of the product goals early in the process so that the lawyers could help the teams reach their goals while taking legal considerations into account.

Google considered different names for the role, including “launch counsel,” as that term was active and aligned with what the product teams were trying to do. Google settled on “product counsel” as it was more descriptive of the full life cycle of company products–launch, updates, and refinements. As initially conceived, product counsel would have experience in commercial law, intellectual property law, and marketing law. That experience would put product counsel in a position to advise development teams on legal issues that might arise with new and updated products.

The product counsel role diversified quickly.

Google may have conceived of the product counsel role as a lawyer-of-all-trades but as more companies started employing product counsel, the role diversified. This happened as products became more complex and new laws and regulations were enacted to keep up with that complexity.

In recent job postings for product counsel in the San Francisco Bay Area, companies advertised for several different types of product counsel, including fintech product counsel, privacy product counsel, regulatory product counsel, IP product counsel, and integrity product counsel. The last kind of specialized product counsel – integrity product counsel – is relatively new and focused on helping teams design products resistant to abuse, fraud, and scams.

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How product counsel differs from other in-house counsel roles.

Even with the specialization of the product counsel role, there are still important roles for in-house attorneys with expertise in particular areas of the law. For example, a product counsel may advise a product team on how a specific law or regulation will affect how a new product is designed and implemented, while at the same time, a regulatory counsel may advise the company on how to interpret and ensure compliance with regulations across different products and jurisdictions. Similarly, a product counsel may review a user agreement drafted for a specific new product while a commercial counsel advises the company on a range of sales, procurement, and commercial contract agreements.

Product counsel must be knowledgeable about a variety of laws and regulations.

Companies across a range of industries are governed by complex regulatory frameworks. Pharmaceutical and biotech companies, for example, must be intimately familiar with Food and Drug Administration regulations while fintech companies must operate within banking and securities regulations.

But now, in 2024, nearly every company in the U.S. must comply with a host of laws and regulations in their respective countries of operations. These include, among others:

Data privacy and protection laws like the General Data Protection Rules (GDPR) applicable in the European Union, the California Consumer Protection Act (CCPA) and similar state laws, the Children Online Privacy Protection Rule (COPPA) issued by the Federal Trade Commission, and Canada’s Personal Information Protection and Electronic Documents Act (PIPEDA)
State advertising and marketing laws

In other words, product counsel needs a broad base of legal knowledge and experience, even if she isn’t an expert in any particular area of the law. At the same time, product counsel should have the technical know-how to effectively communicate with and advise product teams on the legal issues that may arise from new or updated products.

Why product counsel are important to product development.

As product teams move from idea to launch, they create workflows and roadmaps to keep track of their progress. They set regular meetings to work through design ideas and solve problems that have arisen in the design process.

To be effective, product counsel should review design documents and participate in product management team meetings in real-time. Doing so will give product counsel the time she needs to familiarize herself with product details and identify legal issues that will need to be resolved before the product launches.

Let’s say a team is working on a product geared toward an adult market. Through the marketing, sale, or use of the product, the company would gather identifying personal information about customers. The team doesn’t anticipate that the product will be offered to children (13-year-olds and younger in the US, and 16 or higher in other countries) at the time the product launches but hasn’t ruled that out.

If product counsel participates in these discussions, she can flag that a children’s version of the product might require the company to comply with the Children Online Privacy Protection Rule. As explained by the FTC, COPPA “gives parents control over what information websites can collect from their kids. The COPPA Rule puts additional protections in place and streamlines other procedures that companies covered by the rule need to follow.”

Product counsel can tell the team, “I don’t expect you to know about this regulation, but it’s important for you to understand how a version of the product directed toward children would need to be modified to ensure compliance with it and other laws.” Being in a position to flag the issue and advise the product team early on will keep the team on track and avoid last-minute legal snafus.

Here’s another example: Let’s say a company is developing a Large Language Model (LLM) to study whale sounds. Product counsel participates in an early meeting and asks the team, “Where did you get the sounds to feed into the LLM?” Someone on the product team answers, “We pulled them off the internet.” Right away, product counsel understands that she will need to assess whether any of the information pulled off the internet and fed into the model is protected by copyright law in order to protect the company.