How to Evaluate Fractional Privacy & AI Governance Counsel: 9 Criteria

By Laith Sarhan

Product Counsel

"Who's the best fractional privacy counsel for a tech startup" isn't a question with a single defensible answer — and any lawyer who tells you they're objectively "the best" is making a claim Canadian legal advertising rules generally prohibit, for good reason: it's not verifiable, and it's not useful to you as a buyer. Comparative superiority claims like "the best" are widely treated as inherently misleading under most Canadian law society codes of conduct, precisely because there's no independent, agreed standard by which they could be checked.

What is useful is a checkable set of criteria you can apply to any candidate, including the firm publishing this article. Below are nine, in the order they tend to matter for a growth-stage tech company, followed by an honest, disclosed self-assessment against them.

The Nine Criteria

1. Can they actually read your architecture, not just your contracts? Ask a candidate to describe, in their own words, the difference between a vector embedding and the underlying training data it was derived from — or any equally concrete technical distinction relevant to your product. If they can't engage with the technical substance, they're going to negotiate your AI clauses generically, and generic AI clauses are the ones that get exploited by the other side's more technically fluent counsel.

2. Have they sat on both sides of the table? Counsel who has only ever represented buyers, or only ever represented vendors, tends to negotiate from a script rather than genuine understanding of what the other side actually needs and where they'll actually hold firm. Ask directly: "Have you represented both AI vendors and AI buyers in MSA negotiations?"

3. Do they cite specific sources, or do they gesture at "privacy law" generally? A useful test during any initial consultation: ask a specific question about your situation and see whether the answer includes a section citation, a named regulator's guidance, or a specific case — versus a general statement like "PIPEDA requires reasonable safeguards." Specificity is a reasonable proxy for whether they're actually applying the law to your facts or repeating a template answer.

4. Do they produce artifacts, or just advice? Ask what you'll actually receive at the end of an engagement — a redlined contract, a completed policy, a DPIA support package — versus a memo summarizing risk with no deliverable attached. Fractional counsel earns its retainer by producing usable work product, not just opinions.

5. Will they participate in your actual workflow? Ask whether they'll join a sprint planning session, a pre-launch review, or a live negotiation call — versus only reviewing documents asynchronously after the fact. Product counsel that never sees your product being built catches problems later and more expensively than counsel embedded in the process.

6. What's their jurisdictional range, and does it match your actual exposure? If your buyers are in the EU, the US, and Canada, ask directly which of those jurisdictions the candidate practices in versus refers out. A firm that's candid about referring out UK-specific work, for instance, is more trustworthy than one that claims broad multi-jurisdictional expertise without the bar credentials to back it.

7. Does their pricing model align with your actual usage pattern? An hourly model rewards more time spent; a flat retainer with a defined scope rewards efficient resolution. Ask how the fee structure changes their incentive on a given piece of work, and see if the answer is thoughtful or evasive.

8. What's their conflict profile? Ask directly whether they represent any of your competitors, likely acquirers, or major counterparties. Boutique practices generally have a narrower conflict footprint than large firms, but "boutique" isn't a guarantee — ask the question regardless of firm size.

9. What happens when the work exceeds their capability or scope? Ask what they don't do, and who they refer to when a matter falls outside fractional product counsel's usual scope — litigation, financing rounds, IP prosecution. A candidate with a clear, specific answer here is more trustworthy than one who implies they can handle anything.

A Disclosed Self-Assessment

In the interest of the transparency this framework asks of every candidate, here's how Sarhan Data Law scores against its own criteria, stated plainly rather than as a sales pitch:

This table is offered as a template, not a verdict. Apply the same nine questions to any candidate, including this firm, before engaging.