Biz Lunch (#07-08 July-August 2017)

Advocating for Change

On 2 June the challenges of being an in-house counsel were examined by Dana Wagner, US lawyer and former head of the antitrust practice at Google and general counsel of Square, who was in Kiev to hold a master class arranged by EVERLEGAL law firm. We met up with the expert and asked him to share his vision of the GCs role in the ever-changing technological environment.

You may have coordinated external legal counsels at Google. How does it usually choose outside legal counsels across jurisdictions? What assignments do they receive: routine (straightforward) work or just very challenging, high-profile projects?

Dana Wagner: I havent worked at Google for almost 6 years now. So I dont know what Google is doing at present. I can tell you what I look for when selecting a legal counsel. First, you want people who are excited about your company and willing to take the time to understand your business in detail, because its hard to advise a company if you dont know where its coming from and what is important to it in a variety of ways. So, I look for external advisers whom I think will be real partners and not just people who give me surface-level advice. I also look for a diversity of opinions and backgrounds in my advisors. Intelligence, good expertise, and good integrity are of course critical, and there are also a lot of intangibles, lots of things which are hard to describe, such as just having good chemistry so you are confident your advisors will work well with your team. In terms of the work that I assign, if something is relatively routine, I will be more likely to hire people internally to handle that. Because if something is recurring and routine then its usually more efficient to have someone within your own internal team who can do this regularly as opposed to paying an outside firm to do it. There are some exceptions to that. For instance, some type of work can be done more efficiently at scale by an external counsel, like some kinds of discovery work or patent filings are more sensibly handled externally. But for matters that do not recur often enough to hire someone internally or for specialized expertise that I cannot bring on to my team on short notice, I usually turn to outside firms. For types of cases that are rare and only happen once in a while, you almost always use an external counsel.

How many lawyers did you have?

D. W.: At Google I had a team of about dozen people by the time I left. I didnt run the entire team at Google, just the antitrust and competition team. At Square I was the General Counsel, and I had more than hundred people reporting to me when I left the company. Some of them were lawyers, some of them were policy advocates, compliance experts, or security specialists. When I started, however, there was just one lawyer there, and that was me. The team grew tremendously in the five years I worked there.

What are the most challenging legal tasks that you solved as head of legal at Google, and at other technology companies where you worked after?

D. W.: The most recent company I worked at was Square. It was challenging because we were doing a lot of innovative things in highly-regulated areas. Square was doing new things with financial services, new things related to lending and payments transactions, and there are lots of rules and regulations that apply in these areas, but those rules and regulations had not been written with a business like Square in mind. So its a very intellectually rich environment in which to practice law because you are doing something new, and you have to anticipate how the law and regulators will respond to it even if they has never encountered it before. Google have a lot of similar issues. Google was also building products that hadnt previously existed within established regulatory structures. So you always had to think about how older statutes and previous cases will apply to your very new situation. That is a challenging thing to do, but it is also an exciting thing to be a part of.

In this age of technological advance, you most likely face new technologies on a regular basis, which are not regulated by law. For example, artificial intelligence. How can a technology company cover the legal aspects of its own R&D? Do they usually try to lobby adoption of certain laws as soon as implementation of technology is not yet subject to regulatory approaches? Do you observe any GR strategies? How does this work in the USA?

D. W.: I think its a bit of a misconception to say that new technologies are not regulated by legislation. Its not always immediately clear in what way existing laws will apply to them, but there are almost always laws that do apply. In the United States for instance, which is the jurisdiction I am most familiar with, there are many general laws that apply to competition, privacy, and business behavior, among other things, and if you create a new form of artificial intelligence or a new type of financial product, or any kind of new technology, there are always laws that apply to it. The central question is often how do the laws apply to it? And do we need new laws, or are the old laws flexible enough that we can apply them to new technologies in a good way? There is no universal answer to that. But if you are a lawyer in an innovation company, you have to think by analogy. As a technology attorney, even if there is no direct precedent or example I can point to, I may know how a certain type of law usually works, how courts will interpret it in a new situation, and how regulators will approach the issues. So because of this, I will not be completely in the dark with respect to how the law will respond to something new.

Then the question is, assuming you have a good instinct of how the legal system will respond to your new technology, are you happy with that expected response? If you feel like it may be appropriate to change laws or policies because the existing ones do not make sense with respect to your new technology, thats where having a Government Relations team comes in. When I was at Square, one of my jobs was to run the Government Relations team, and sometimes you need a team like that to advocate for change. Sometimes the existing laws are perfectly adequate, and if they are interpreted properly they serve the public interest by allowing good things to happen with new technology and, at the same time, preventing bad things from happening. But sometimes it is important to revise laws and update laws. Then you need to engage with the regulators, you discuss the issues with legislators or rule-makers, and you advocate for change. Thats part of the job.

Which new technologies do you anticipate will be introduced by Google and/or other major technological players in the near future? Which new practices could be developed?

D. W.: If I knew the answer to that question, I could go out to the stock market and become a very rich man. I dont know any more than anyone else as to what will come next and what will be successful. My opinion on this is affected by my recent experience, but I think that the world of financial technology is one where there continues to be a great deal of potential for innovation. The things Square and other financial technology companies have done so far are only the beginning of whats possible. Too many people still do not have good access to the financial system. But these same people are walking around with supercomputers in their pockets that can do amazing technological things, and we can do even more with technology to build a better functioning, more inclusive, more efficient financial system. I am very excited about it. I think also about Googles focus on information technology, and how much more companies like it can do to connect people and information. All of this is very exciting.

There is a widespread notion that lawyers will soon be replaced by robots. I hear it in Ukraine from our lawyers. Since you are in the mainstream of technological developments and can pragmatically evaluate the prospects, what is your opinion on this?

D. W.: I think it is unlikely lawyers will be replaced by robots in the near future. Some of the most valuable things that a lawyer brings are expertise in subject matter, which is difficult to actually program when it comes to legal knowledge, as well as sound judgment and the ability to earn trust. If you do not trust the lawyer you are dealing with and think they are using good judgment in advising you, the lawyer will not be effective. The lawyer-client relationship is based very much on sound judgment and trust. I dont think those are areas in which robots are very strong at the moment.

As I indicated earlier, practicing law, especially in the technology realm, is not just looking at the rules and knowing what they mean, or looking at precedent and knowing what it means. A lawyer must be able to judge how a new situation is likely to be interpreted given what was happened before. Every situation is different, and you have to know which differences might be important and why. Its very difficult to think about programming a robot to do this. Perhaps artificial intelligence will someday surpass human intelligence, but I am sure that will not happen soon. Lawyers should be safe from been replaced by robots for a while still. There are certainly ways that robots can make the practice of law easier. Many people use artificial intelligence and algorithms to assist with tasks like producing and reviewing discovery in litigation. If you have to scan a lot of documents and look for certain words, or group them according to certain concepts, thats something artificial intelligence can help with. But much of what lawyers do today are skills that would be very difficult for a robot.

How did your economic background affect your legal thinking?

D. W.: I studied economics and I also studied literature before I started to study law. Both of them were important. One obvious way my economics studies were helpful was that one area of law I focused on was antitrust and competition law. If you are working on that type of law, it is helpful to know economic concepts. There is a lot of analysis of economic incentives, economic behavior, and economic injury in that field of law. And more generally, economics teaches you to think about human and organizational behavior in ways that are helpful when performing legal analysis. For instance, when legal scholars and practitioners think about the law of tort liability and how the law should assign responsibility in certain situations, they think about who has the best information, what the incentives are for the people involved, and how they can structure a system in light of this that best advances the public interest. That type of thinking is very familiar to people who have studied economics.

How do you like Ukraine and Ukrainian lawyers? What is the purpose of your visit to our country?

D. W.: This is my first time in Ukraine, and so far it has been a very positive experience. I actually had a great grandmother who emigrated to the United States from Ukraine in the 19th century, so I was always curious about the region. I came here in part because of that, and of course also because I was invited by the School of American Law to come and teach some classes. I thought it was a wonderful opportunity. I am always interested in how people in different parts of the world study and think about law, and in what role the law plays in their lives. The chance to come here and see Kiev and Lviv, to meet and talk with students and practitioners here, its just a great opportunity. I love learning from the people I meet here in Ukraine, sharing my own experiences with them, and building new connections.

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