Stakeholder management series: Tips for working with attorneys
The legal profession is old. Out of 56 signatories of the U.S. Declaration of Independence, 24 are by lawyers. To be a practicing attorney, you need a Juris Doctorate, pass the bar exams, and obtain a good character assessment. Contrast with product management, a profession with no degree requirement, examination process, and limited certification, and it’s no wonder sometimes product managers and attorneys clash. But it doesn’t have to be if product managers learn some tips when working with attorneys.
Most of us form our first impressions of attorneys from TV. Entertaining, but not particularly practical to product managers who aren’t giving depositions or testifying.
What do attorneys do?
Two things: solving problems using legal theories and knowledge and offering legal advice. Let’s break it down.
solving problems using legal theories and knowledge
Law, like language, is composed of both codified and uncodified rules, practices, and norms. Some are clear and documented whereas others are ambiguous and formed from precedence. Attorneys use their legal education and experience to help individuals and businesses apply, navigate, or comply with laws and other obligations.
offering legal advice
Legal advice is a “formal opinion regarding the substance or procedure” to a particular situation or problem. Whether verbal or written, these opinions instruct people on what actions to take in a particular situation and possible ramifications from a failure to act.
Say you’re building an eCommerce site to sell toilet paper.
An attorney talks to you to learn what you’re trying to do (i.e., learn the situation or problem).
She or he then researches applicable laws, regulations and rules to the situation (e.g., contract, consumer protection, data storage, privacy, accessibility)
The attorney gives legal advice on the website (e.g., how the website should be designed, build, and maintained) and business operations (e.g., how to handle product imports, manufacturing, tax collection) as it relates to laws
The attorney writes legal documents such as contracts (e.g., Terms and Conditions Agreement, Privacy Policy, Product Warranty) in support of the eCommerce site and products sold through the site
Tips for Working with Attorneys in Five Areas.
Regardless of whether you’re working with the General Counsel at startup, a Staff Attorney, or an [fill in the blank legal specialty] Counsel, PMs frequently will work with attorneys in 5 legal areas: commercial contracts, intellectual property, regulatory compliance, employment, and litigation.
Commercial Contracts
Some examples.
Create a eCommerce website -> Terms and Conditions Agreement (contract between company and website visitors)
Bought services from a vendor (e.g., AWS) -> Customer Services Agreement or Master Services Agreement & Statement of Work (contracts between buyer and seller)
Attorneys will:
guide contract negotiations
give legal and business advice regarding obligations, rights, and contract terms
write contracts
monitor and enforce contracts
Specific Tips
Define the business terms. It’s frustrating for attorneys to draft a contract when PMs don’t know what they want. If you’re working with other business stakeholders, help everyone too by defining the business terms. Start a document and write in plain English what you hope the contract will do (e.g., what’s the service/product, how much, who does what, important dates). These key terms will help the attorney draft the contract and guide your negotiations.
Define the best alternative to a negotiated agreement. Document the conditions you will stop negotiations. First, this reference helps you know when to break off negotiations. Second, it prevents completing a bad contract. Third, it stops you and the attorney from wasting time on unnecessary negotiations. The busy attorney will thank you.
Read the draft contract language. Sounds obvious, but we all get lazy. However, you know the business better than the attorney. Read first to ensure the contract covers the business terms. Then, read with an eye towards what is unwritten to ask if it should be added (e.g., payment after acceptance, but what if product isn’t accepted?). Finally, read to evaluate any impacts on cross functional teams (e.g., finance, marketing, etc.) because a contract obligates the entire company.
Don’t rely upon the contract to build or manage ongoing relationships. If you’re reading the contract language and dissecting words to discuss what needs to occur, the business relationship is broken. The best written contract can’t save a bad relationship and neither can the attorney. Contracts protect rights and give you a tool to enforce obligations. But there is also a cost to exercising those rights (e.g., lawsuits, arbitration) that should be avoided by building personal relationships.
Understand what you’d do if there’s a breach or the contract ends. Many contracts have terms and obligations for when either party stops complying or decides to terminate. It can be as simple as everyone walks away or a complex set of rules, timelines, and rights. All relationships end and a contract is a relationship so know what will happen if it ends.
Intellectual Property (IP)
With IP, people immediately think of inventions and patents. But IP also covers trade secrets, copyright (including open source software), rights of publicity, and trademark. Just look at Apple’s extensive list of trademarks for “i[fill in the blank]”.
When it comes to IP, the attorneys will:
evaluate ideas or inventions to determine if they are patentable, and navigate the patent application and registration process
establish processes and create documents (e.g., Non-Disclosure Agreement, Inventions Assignment Agreement) to manage intellectual property and protect trade secrets and confidential information
file for copyright (content) with the US Copyright Office or trademark protection (names and logos) with the US Patent and Trademark Office
Specific Tips
Don’t start sharing everything just because you signed an NDA. PMs sometimes mistakenly believe that once a NDA is signed, they can and should share all information with the other party. Don’t do that. Most NDAs are tailored to specific business relationships and narrowly defined. Instead focus on sharing information that’s relevant to the purpose of the relationship.
Talk with the attorney about open source licensing. Your software or content may include open source software or content. There are different types of open source software and content licenses and they have different implications. This may not be something you think about day one, but as the product grows in usage, you may need to re-evaluate the type of open source licensing. Attorneys can help navigate such licenses or obtain releases.
Don’t rely upon IP defense if you’re at an early stage startup or small companies. While large companies have the people and money to use IP as a business strategy, your company probably doesn’t. If you do have the money and people, it’ll still be a distraction to growing your sales. Thus, talk to the IP attorney to understand what’s feasible, which will give you a better perspective on how to protect your product from competitors that doesn’t always involve filling patents.
Regulatory Compliance
Ensuring the company and it’s product, services, and business operations complies with all applicable laws is one of the core functions of most legal departments, even if there is a separate compliance department. It’s all celebrations and champagne until…
Attorneys will:
educate people on the regulations and rules; keeping up to date with changes
monitor compliance; not only regulations and rules issued by agencies, but also legal settlements between private parties (e.g., hiring practices)
build and maintain relationships with regulatory bodies such as local city attorneys and state attorneys generals
respond to regulatory requests, violations, and fines
review marketing material and user experience copy
While regulations and rules are industry specific (e.g., Airbnb -> Rental/dwelling regulation, Venmo -> foreign assets regulations) or consumer focus (e.g., consumer protection laws), I would be remiss if I didn’t mention one area of regulation that is increasingly applicable to every company and PM: Data, Privacy, & Security
If your product collects data, you’ll have to think how the data is used, disclosed, transmitted, and stored. Hence, you’re dealing with data, privacy and security and related laws such as E.U. GDRP 2016, The California Consumer Privacy Act of 2018, or HIPPA Privacy Rules. Furthermore, the protection of that data isn’t just a technology issue, but also covers legal issues such as security breach disclosures.
Specific Tips
Understand that compliance isn’t always black or white. “For growth stage startups trying to disrupt an industry, your product is likely to push against some regulations,” says Alexis Liu, Senior Legal Counsel @ Dataiku. Furthermore, laws are sometimes ambiguous or poorly written, which makes being compliant a judgement. Instead of seeking 100% compliance as the goal by asking a “Yes or No” question to determine if your product is compliant, frame the problem around risk to understand both the consequences of complying or not. For example, an attorney requests changes to a product to meet new regulations. Don’t start making changes. Instead, ask questions to understand how to demonstrate compliance. Then ask to determine the cost and probability of non-compliance. Explain to the attorney that software breaks and you’re asking to learn so that if you find your product out of compliance later, you understand the consequences.
Have an process for complaints or disputes. You can’t be 100% compliant all the time. It’s neither possible or feasible. Instead, focus most of your energy on making the product as great as possible for your customer, which will reduce complaints. Simultaneously, create a process for customers to voice complaints. For B2C, maybe that’s via your customer service. For B2B, may that’s via your sales operations teams. By giving an outlet, you’re reducing the likelihood of a small issue blowing up and show case to regulators, you’re taking proactive, corrective action.
Set up a recurring meeting with the regulatory attorney(s). Laws change as politics change and major events impact how people see the world they want to live in. With a recurring meeting, you’ll stay on top of these legal changes and reduce last minute surprises. Some changes in law may require product changes, others may not. For companies smaller than Series A, I recommend every other month. For Series B and beyond, I recommend monthly, 45 minutes. Whatever you decide, stick with it for 4 cycles and then adjust based on your working relationship with the attorney.
Allocate backlog time for changes to address new regulations. Just as you have to allocate time for cleaning up technical debt, you needs to allocate time for addressing product changes caused by new regulations. Block off a certain amount of capacity and obtain consensus from other business stakeholders and the regulatory attorney. How much time may depend on the industry, company risk tolerance, and amount of regulatory debt your product is facing.
Use the emergency change request process for handling last minute regulatory issues. There will be last minute laws passed or surprise requests from regulators. Rather than creating a separate process to handle these, use your existing emergency change request process for handling P0 or P1 production issues. By using the same process, you’ll bring the regulatory issue’s attention to other business stakeholders, elevating awareness. You’ll also keep your software engineers happy by reusing an existing process.
Know what countries, states, and territories your product operate / does not operate in. Laws vary by jurisdiction and by the audience you are attempting to reach. If you’re not operating in Europe, GDPR doesn’t apply. Not only does defining operating country help reduce the work for you, it also reduces work for the attorney. Vice versa, if you are expanding geographically, tell the attorney because new laws may be applicable.
Learn the basic regulations for your industry. You don’t need to quote legal code, but you do need to understand the basic concepts. Understanding will take time and touch many different legal areas so ask the attorney to help teach you. It will give you a new perspective and terminology that will help your future conversations. The attorney will appreciate the interest.
Employment
Even for PMs who don’t have direct reports, you might come across corporate fraud or workplace harassment.
Attorneys will help with:
hiring & termination such as:
educating and monitoring hiring practices
creating/reviewing employment contracts or non-compete agreements
obtaining employee authorization or visa sponsorship (e.g., H1-B, F-1 Occupational Practical Training)
negotiating and writing termination / separation agreements for cause and without cause
investigating inappropriate or illegal workplace activity such as:
maintaining and monitoring internal reporting hotline
investigating reported inappropriate behavior (e.g., violation of company or employment, misuse of corporate computers for personal gain or improper purchases on corporate credit card) or illegal activities (e.g., fraud, bribery, embezzlement, harassments)
Specific Tips
Learn the basics: (federal) and your state law. Like regulations, spend the time to understand the basics. Employment laws vary by state (e.g., NY Labor Law Section 194-a, which prohibits employers from asking about salary). Ask an attorney to teach you.
Write an email to yourself for documentation. As PMs, there may come a time when you’re asked to do something you disagree because you think it’s inappropriate or unethical. But as a PM and employee, you also have an obligation to the company. If you’ve exhausted your normal channels for sharing your dissenting opinion (e.g., listened, written emails, had conversations), but you haven’t decided to resign, you should write yourself an email documenting what has transpired. Be factual, list people, dates, times, and conversations, what you’ve advised, and what you’ve been instructed to do. Make sure this email is sent from your personal email to yourself for safe record keeping. In such stressful moments, the document is helpful to keep you oriented and useful in a potential dispute.
Litigation, Arbitration, or Potential Lawsuits
When people can’t resolve their differences, sometimes we resort to the courts. As a product manager, you’re likely to become a key player in the lawsuit because of what you know or have witnessed, even if you are not a named party. In addition, lawsuits or the threat of a lawsuit are tactics people use to:
create a distraction, forcing people to spend time discussing a hypothetical issue
increase expenses, forcing people to spend money hiring attorneys
bringing public attention to an issue
forcing negotiations, bringing people to talk who otherwise won’t
In any case, attorneys will:
advise on settlement negotiations and craft the settlement agreement
monitor and maintain document retention and support any pre-trial activities (e.g., document discovery process, depositions)
hire outside attorney who specialize in different phases of litigation (e.g., pre-trial, trial, appeal)
teach employees about the litigation process, but also providing emotional support (i.e., been there, done that)
Specific Tips
Work through the in-house attorney. Most companies don’t have attorneys that specialize in litigation. Thus, the in-house attorney will hire outside help. When working with two attorneys, know that in-house counsel always makes the final decision so don’t work around the in-house attorney.
You may need to hire your own, personal attorney. The company’s attorney is not your attorney. Attorneys hired by the company have an obligation to the company (i.e., client). While it’s rare, you may be in a situation where you need to seek independent legal advice (i.e., your own attorney). If unsure, you can seek referrals from your local bar association and an attorney is usually willing to give you a 30 minute free consultation.
Closing tips when working with any attorney
“We [PMs and Attorneys] have a lot more in common than people think,” says Alexis. “I care about scaling and user friendly design. When I’m drafting Terms and Conditions, I'm drafting that so it's understandable, for the user.” But the law is complicated and no single attorney knows everything. If you forget any of the above, follow these three tips:
Be direct and candid. Attorneys want the details because good legal advice is situation dependent. Small details may reframe the situation or problem. For example, I was working with an attorney on website accessibility. I shared that certain functions are only accessible after the user creates an account and logs in. The attorney responded that the accessibility law is applied differently to public facing versus after login. Hiding details because you’re afraid it may cause problems or extra work is a recipe for creating a bigger problem and more work.
Manage the project. “We [Attorneys] never want to do the actual product manager’s job”, says Yumi Lawlor, Associate General Counsel @ Instacart. “Attorneys want to rely on the product manager to follow up on deadlines, deliverables, and keep other functional teams informed, as there isn't enough time in the day to also fill the product manager's role.” Part of being a product manager is good project management. Staying organized and keeping others informed showcases your execution skills and build goodwill.
Determine if you’re receiving business advice or legal advice. Attorneys working in-house don’t operate in legal abstractions. They care about the company’s success and will have business opinions (e.g., product features, improvements ideas). PMs need to understand when receiving advice from attorneys, if the advice is business, legal, or a combination. It’s easy to mix the two (e.g., sending email for this type of communication violates Florida regulation ABC so the product needs to send regular mail to all states). PMs need to treat legal advice as factual (e.g., doing XYZ violates ABC), but consider business advice in context (e.g., operational, cost, implementation difficulty, etc.). If the attorney had experience working with PMs implementing the business advice, ask them to give you the details. Don’t ignore it out of hand because you’re the PM. Then, explore additional solutions (e.g., sending mail to only Florida users, replace email with a secure mail box that requires the user to login). Share those solutions with the attorney will allow you to co-create a solution. It’ll also allow you to share inputs from other stakeholders, showcasing to the attorney the considerations on your mind. Ultimately, as a PM, you have to weigh the various factors and make a decision.
People who helped me in writing this article:
Alexis Liu, Senior Legal Counsel @ Dataiku
Yumi Lawlor, Director & Associate General Counsel, Product & IP @ Instacart
Additional Reading:
Technology & Marketing Law Blog (Covers new developments in intellectual property, Internet law and advertising law)
Moonlighting: Not All General Counsels Are The Same (A Guide To Understanding In-House Legal Titles)
Confidentiality, Privilege or Both? (ABA member content only)