Category: Legal Marketing

EDPB on Dark Patterns: Lessons for Marketing Teams

“Dark patterns” are becoming the target of EU data protection authorities, and the new guidelines of the European Data Protection Board (EDPB) on “dark patterns in social media platform interfaces” confirm their focus on such practices. While they are built around examples from social media platforms (real or fictitious), these guidelines contain lessons for all websites and applications. The bad news for marketers: the EDPB doesn’t like it when dry legal texts and interfaces are made catchier or more enticing.

To illustrate, in a section of the guidelines regarding the selection of an account profile photo, the EDPB considers the example of a “help/information” prompt saying “No need to go to the hairdresser’s first. Just pick a photo that says ‘this is me.’” According to the EDPB, such a practice “can impact the final decision made by users who initially decided not to share a picture for their account” and thus makes consent invalid under the General Data Protection Regulation (GDPR). Similarly, the EDPB criticises an extreme example of a cookie banner with a humourous link to a bakery cookies recipe that incidentally says, “we also use cookies”, stating that “users might think they just dismiss a funny message about cookies as a baked snack and not consider the technical meaning of the term “cookies.”” The EDPB even suggests that the data minimisation principle, and not security concerns, should ultimately guide an organisation’s choice of which two-factor authentication method to use.

Do these new guidelines reflect privacy paranoia or common sense? The answer should lie somewhere in between, but the whole document (64 pages long) in our view suggests an overly strict approach, one that we hope will move closer to commonsense as a result of a newly started public consultation process.

Let us take a closer look at what useful lessons – or warnings – can be drawn from these new guidelines.

What are “dark patterns” and when are they unlawful?

According to the EDPB, dark patterns are “interfaces and user experiences […] that lead users into making unintended, unwilling and potentially harmful decisions regarding the processing of their personal data” (p. 2). They “aim to influence users’ behaviour and can hinder their ability to effectively protect their personal data and make conscious choices.” The risk associated with dark patterns is higher for websites or applications meant for children, as “dark patterns raise additional concerns regarding potential impact on children” (p. 8).

While the EDPB takes a strongly negative view of dark patterns in general, it recognises that dark patterns do not automatically lead to an infringement of the GDPR. The EDPB acknowledges that “[d]ata protection authorities are responsible for sanctioning the use of dark patterns if these breach GDPR requirements” (emphasis ours; p. 2). Nevertheless, the EDPB guidance strongly links the concept of dark patterns with the data protection by design and by default principles of Art. 25 GDPR, suggesting that disregard for those principles could lead to a presumption that the language or a practice in fact creates a “dark pattern” (p. 11).

The EDPB refers here to its Guidelines 4/2019 on Article 25 Data Protection by Design and by Default and in particular to the following key principles:

  • “Autonomy – Data subjects should be granted the highest degree of autonomy possible to determine the use made of their personal data, as well as autonomy over the scope and conditions of that use or processing.
  • Interaction – Data subjects must be able to communicate and exercise their rights in respect of the personal data processed by the controller.
  • Expectation – Processing should correspond with data subjects’ reasonable expectations.
  • Consumer choice – The controllers should not “lock in” their users in an unfair manner. Whenever a service processing personal data is proprietary, it may create a lock-in to the service, which may not be fair, if it impairs the data subjects’ possibility to exercise their right of data portability in accordance with Article 20 GDPR.
  • Power balance – Power balance should be a key objective of the controller-data subject relationship. Power imbalances should be avoided. When this is not possible, they should be recognised and accounted for with suitable countermeasures.
  • No deception – Data processing information and options should be provided in an objective and neutral way, avoiding any deceptive or manipulative language or design.
  • Truthful – the controllers must make available information about how they process personal data, should act as they declare they will and not mislead data subjects.”

Is data minimisation compatible with the use of SMS two-factor authentication?

One of the EDPB’s positions, while grounded in the principle of data minimisation, undercuts a security practice that has grown significantly over the past few years. In effect, the EDPB seems to question the validity under the GDPR of requests for phone numbers for two-factor authentication where e-mail tokens would theoretically be possible:

“30. To observe the principle of data minimisation, [organisations] are required not to ask for additional data such as the phone number, when the data users already provided during the sign- up process are sufficient. For example, to ensure account security, enhanced authentication is possible without the phone number by simply sending a code to users’ email accounts or by several other means.
31. Social network providers should therefore rely on means for security that are easier for users to re[1]initiate. For example, the [organisation] can send users an authentication number via an additional communication channel, such as a security app, which users previously installed on their mobile phone, but without requiring the users’ mobile phone number. User authentication via email addresses is also less intrusive than via phone number because users could simply create a new email address specifically for the sign-up process and utilise that email address mainly in connection with the Social Network. A phone number, however, is not that easily interchangeable, given that it is highly unlikely that users would buy a new SIM card or conclude a new phone contract only for the reason of authentication.” (emphasis ours; p. 15)

The EDPB also appears to be highly critical of phone-based verification in the context of registration “because the email address constitutes the regular contact point with users during the registration process” (p. 15).

This position is unfortunate, as it suggests that data minimisation may preclude controllers from even assessing which method of two-factor authentication – in this case, e-mail versus SMS one-time passwords – better suits its requirements, taking into consideration the different security benefits and drawbacks of the two methods. The EDPB’s reasoning could even be used to exclude any form of stronger two-factor authentication, as additional forms inevitably require separate processing (e.g., phone number or third-party account linking for some app-based authentication methods).

For these reasons, organisations should view this aspect of the new EDPB guidelines with a healthy dose of skepticism. It likewise will be important for interested stakeholders to participate in the consultation to explain the security benefits of using phone numbers to keep the “two” in two-factor authentication.

Consent withdrawal: same number of clicks?

Recent decisions by EU regulators (notably two decisions by the French authority, the CNIL have led to speculation about whether EU rules effectively require website operators to make it possible for data subjects to withdraw consent to all cookies with one single click, just as most websites make it possible to give consent through a single click. The authorities themselves have not stated that this is unequivocally required, although privacy activists notably filed complaints against hundreds of websites, many of them for not including a “reject all” button on their cookie banner.

The EDPB now appears to side with the privacy activists in this respect, stating that “consent cannot be considered valid under the GDPR when consent is obtained through only one mouse-click, swipe or keystroke, but the withdrawal takes more steps, is more difficult to achieve or takes more time” (p. 14).

Operationally, however, it seems impossible to comply with a “one-click withdrawal” standard in absolute terms. Just pulling up settings after registration or after the first visit to a website will always require an extra click, purely to open those settings. We expect this issue to be examined by the courts eventually.

Is creative wording indicative of a “dark pattern”?

The EDPB’s guidelines contain several examples of wording that is intended to convince the user to take a specific action.

The photo example mentioned in the introduction above is an illustration, but other (likely fictitious) examples include the following:

  • For sharing geolocation data: “Hey, a lone wolf, are you? But sharing and connecting with others help make the world a better place! Share your geolocation! Let the places and people around you inspire you!” (p.17)
  • To prompt a user to provide a self-description: “Tell us about your amazing self! We can’t wait, so come on right now and let us know!” (p. 17)

The EDPB criticises the language used, stating that it is “emotional steering”:

“[S]uch techniques do not cultivate users’ free will to provide their data, since the prescriptive language used can make users feel obliged to provide a self-description because they have already put time into the registration and wish to complete it. When users are in the process of registering to an account, they are less likely to take time to consider the description they give or even if they would like to give one at all. This is particularly the case when the language used delivers a sense of urgency or sounds like an imperative. If users feel this obligation, even when in reality providing the data is not mandatory, this can have an impact on their “free will”” (pp. 17-18).

Similarly, in a section about account deletion and deactivation, the EDPB criticises interfaces that highlight “only the negative, discouraging consequences of deleting their accounts,” e.g., “you’ll lose everything forever,” or “you won’t be able to reactivate your account” (p. 55). The EDPB even criticises interfaces that preselect deactivation or pause options over delete options, considering that “[t]he default selection of the pause option is likely to nudge users to select it instead of deleting their account as initially intended. Therefore, the practice described in this example can be considered as a breach of Article 12 (2) GDPR since it does not, in this case, facilitate the exercise of the right to erasure, and even tries to nudge users away from exercising it” (p. 56). This, combined with the EDPB’s aversion to confirmation requests (see section 5 below), suggests that the EDPB is ignoring the risk that a data subject might opt for deletion without fully recognizing the consequences, i.e., loss of access to the deleted data.

The EDPB’s approach suggests that any effort to woo users into giving more data or leaving data with the organisation will be viewed as harmful by data protection authorities. Yet data protection rules are there to prevent abuse and protect data subjects, not to render all marketing techniques illegal.

In this context, the guidelines should in our opinion be viewed as an invitation to re-examine marketing techniques to ensure that they are not too pushy – in the sense that users would in effect truly be pushed into a decision regarding personal data that they would not otherwise have made. Marketing techniques are not per se unlawful under the GDPR but may run afoul of GDPR requirements in situations where data subjects are misled or robbed of their choice.

Other key lessons for marketers and user interface designers

  • Avoid continuous prompting: One of the issues regularly highlighted by the EDPB is “continuous prompting”, i.e., prompts that appear again and again during a user’s experience on a platform. The EDPB suggests that this creates fatigue, leading the user to “give in,” i.e., by “accepting to provide more data or to consent to another processing, as they are wearied from having to express a choice each time they use the platform” (p. 14). Examples given by the EDPB include the SMS two-factor authentication popup mentioned above, as well as “import your contacts” functionality. Outside of social media platforms, the main example for most organisations is their cookie policy (so this position by the EDPB reinforces the need to manage cookie banners properly). In addition, newsletter popups and popups about “how to get our new report for free by filling out this form” are frequent on many digital properties. While popups can be effective ways to get more subscribers or more data, the EDPB guidance suggests that regulators will consider such practices questionable from a data protection perspective.
  • Ensure consistency or a justification for confirmation steps: The EDPB highlights the “longer than necessary” dark pattern at several places in its guidelines (in particular pp. 18, 52, & 57), with illustrations of confirmation pop-ups that appear before a user is allowed to select a more privacy-friendly option (and while no such confirmation is requested for more privacy-intrusive options). Such practices are unlawful according to the EDPB. This does not mean that confirmation pop-ups are always unlawful – just that you need to have a good justification for using them where you do.
  • Have a good reason for preselecting less privacy-friendly options: Because the GDPR requires not only data protection by design but also data protection by default, make sure that you are able to justify an interface in which a more privacy-intrusive option is selected by default – or better yet, don’t make any preselection. The EDPB calls preselection of privacy-intrusive options “deceptive snugness” (“Because of the default effect which nudges individuals to keep a pre-selected option, users are unlikely to change these even if given the possibility” p. 19).
  • Make all privacy settings available in all platforms: If a user is asked to make a choice during registration or upon his/her first visit (e.g., for cookies, newsletters, sharing preferences, etc.), ensure that those settings can all be found easily later on, from a central privacy settings page if possible, and alongside all data protection tools (such as tools for exercising a data subject’s right to access his/her data, to modify data, to delete an account, etc.). Also make sure that all such functionality is available not only on a desktop interface but also for mobile devices and across all applications. The EDPB illustrates this point by criticising the case where an organisation has a messaging app that does not include the same privacy statement and data subject request tools as the main app (p. 27).
  • Be clearer in using general language such as “Your data might be used to improve our services”: It is common in most privacy statements to include a statement that personal data (e.g., customer feedback) “can” or “may be used” to improve an organisation’s products and services. According to the EDPB, the word “services” is likely to be “too general” to be viewed as “clear,” and it is “unclear how data will be processed for the improvement of services.” The use of the conditional tense in the example (“might”) also “leaves users unsure whether their data will be used for the processing or not” (p. 25). Given that the EDPB’s stance in this respect is a confirmation of a position taken by EU regulators in previous guidance on transparency, and serves as a reminder to tell data subjects how data will be used.
  • Ensure linguistic consistency: If your website or app is available in more than one language, ensure that all data protection notices and tools are available in those languages as well and that the language choice made on the main interface is automatically taken into account on the data-related pages (pp. 25-26).

Best practices according to the EDPB

Finally, the EDPB highlights some other “best practices” throughout its guidelines. We have combined them below for easier review:

  • Structure and ease of access:
    • Shortcuts: Links to information, actions, or settings that can be of practical help to users to manage their data and data protection settings should be available wherever they relate to information or experience (e.g., links redirecting to the relevant parts of the privacy policy; in the case of a data breach communication to users, to provide users with a link to reset their password).
    • Data protection directory: For easy navigation through the different section of the menu, provide users with an easily accessible page from where all data protection-related actions and information are accessible. This page could be found in the organisation’s main navigation menu, the user account, through the privacy policy, etc.
    • Privacy Policy Overview: At the start/top of the privacy policy, include a collapsible table of contents with headings and sub-headings that shows the different passages the privacy notice contains. Clearly identified sections allow users to quickly identify and jump to the section they are looking for.
    • Sticky navigation: While consulting a page related to data protection, the table of contents could be constantly displayed on the screen allowing users to quickly navigate to relevant content thanks to anchor links.
  • Transparency:
    • Organisation contact information: The organisation’s contact address for addressing data protection requests should be clearly stated in the privacy policy. It should be present in a section where users can expect to find it, such as a section on the identity of the data controller, a rights related section, or a contact section.
    • Reaching the supervisory authority: Stating the specific identity of the EU supervisory authority and including a link to its website or the specific website page for lodging a complaint is another EDPB recommendation. This information should be present in a section where users can expect to find it, such as a rights-related section.
    • Change spotting and comparison: When changes are made to the privacy notice, make previous versions accessible with the date of release and highlight any changes.
  • Terminology & explanations:
    • Coherent wording: Across the website, the same wording and definition is used for the same data protection concepts. The wording used in the privacy policy should match that used on the rest of the platform.
    • Providing definitions: When using unfamiliar or technical words or jargon, providing a definition in plain language will help users understand the information provided to them. The definition can be given directly in the text when users hover over the word and/or be made available in a glossary.
    • Explaining consequences: When users want to activate or deactivate a data protection control, or give or withdraw their consent, inform them in a neutral way of the consequences of such action.
    • Use of examples: In addition to providing mandatory information that clearly and precisely states the purpose of processing, offering specific data processing examples can make the processing more tangible for users
  • Contrasting Data Protection Elements: Making data protection-related elements or actions visually striking in an interface that is not directly dedicated to the matter helps readability. For example, when posting a public message on the platform, controls for geolocation should be directly available and clearly visible.
  • Data Protection Onboarding: Just after the creation of an account, include data protection points within the onboarding experience for users to discover and set their preferences seamlessly. This can be done by, for example, inviting them to set their data protection preferences after adding their first friend or sharing their first post.
  • Notifications (including data breach notifications): Notifications can be used to raise awareness of users of aspects, changes, or risks related to personal data processing (e.g., when a data breach occurs). These notifications can be implemented in several ways, such as through inbox messages, pop-in windows, fixed banners at the top of the webpage, etc.

Next steps and international perspectives

These guidelines (available online) are subject to public consultation until 2 May 2022, so it is possible they will be modified as a result of the consultation and, we hope, improved to reflect a more pragmatic view of data protection that balances data subjects’ rights, security, and operational business needs. If you wish to contribute to the public consultation, note that the EDPB publishes feedback it receives (as a result, we have occasionally submitted feedback on behalf of clients wishing to remain anonymous).

Irrespective of the outcome of the public consultation, the guidelines are guaranteed to have an influence on the approach of EU data protection authorities in their investigations. From this perspective, it is better to be forewarned – and to have legal arguments at your disposal if you wish to adopt an approach that deviates from the EDPB’s position.

Moreover, these guidelines come at a time when the United States Federal Trade Commission (FTC) is also concerned with dark patterns. The FTC recently published an enforcement policy statement on the matter in October 2021. Dark patterns are also being discussed at the Organisation for Economic Cooperation and Development (OECD). International dialogue can be helpful if conversations about desired policy also consider practical solutions that can be implemented by businesses and reflect a desirable user experience for data subjects.

Organisations should consider evaluating their own techniques to encourage users to go one way or another and document the justification for their approach.

Article By Peter Craddock, Sheila A. Millar, and Tracy P. Marshall of Keller and Heckman LLP

For more cybersecurity legal news, click here to visit the National Law Review.

© 2022 Keller and Heckman LLP

Google to Launch Google Analytics 4 in an Attempt to Address EU Privacy Concerns

On March 16, 2022, Google announced the launch of its new analytics solution, “Google Analytics 4.” Google Analytics 4 aims, among other things, to address recent developments in the EU regarding the use of analytics cookies and data transfers resulting from such use.

Background

On August 17, 2020, the non-governmental organization None of Your Business (“NOYB”) filed 101 identical complaints with 30 European Economic Area data protection authorities (“DPAs”) regarding the use of Google Analytics by various companies. The complaints focused on whether the transfer of EU personal data to Google in the U.S. through the use of cookies is permitted under the EU General Data Protection Regulation (“GDPR”), following the Schrems II judgment of the Court of Justice of the European Union. Following these complaints, the French and Austrian DPAs ruled that the transfer of EU personal data from the EU to the U.S. through the use of the Google Analytics cookie is unlawful.

Google’s New Solution

According to Google’s press release, Google Analytics 4 “is designed with privacy at its core to provide a better experience for both our customers and their users. It helps businesses meet evolving needs and user expectations, with more comprehensive and granular controls for data collection and usage.”

The most impactful change from an EU privacy standpoint is that Google Analytics 4 will no longer store IP address, thereby limiting the data transfers resulting from the use of Google Analytics that were under scrutiny in the EU following the Schrems II ruling. It remains to be seen whether this change will ease EU DPAs’ concerns about Google Analytics’ compliance with the GDPR.

Google’s previous analytics solution, Universal Analytics, will no longer be available beginning July 2023. In the meantime, companies are encouraged to transition to Google Analytics 4.

Read Google’s press release.

Article By Privacy and Cybersecurity Practice Group at Hunton Andrews Kurth

For more cybersecurity legal news, click here to visit the National Law Review. 

Copyright © 2022, Hunton Andrews Kurth LLP. All Rights Reserved.

13 Types of Law Firm Content Marketing That Really Work

If you are unsure about where to focus your law firm’s content marketing efforts, realize that there is more to this marketing strategy than just writing articles. Great content talks to the people that will consume your legal services and also to the search engines to support SEO.  But content has many shapes and sizes so lawyers often wonder what options are appropriate for them.  This article covers 13 types of content that any lawyer or law firm regardless of their practice area can add to their law firm’s marketing strategy.

Law Firm Blog Posts

Blog posts are one of the easiest ways to start creating content and getting your law firm’s name out there. You truly just need to sit down, write about what you know and what you are passionate about, and publish it. Of course, you want to make sure your content is attractive to your target audience, so use your market research to craft posts that are easily understood by and interesting to your audience. Marketing savvy law firm owners develop a theme to their blogs so after one year of producing content, they can stitch the material together in e-book or white paper format.

Infographics

Infographics are a powerful tool for lawyers and law firms to reach their target audience. Research indicates that people remember 65% of the information they see in a visual format, compared to just 10% of what they hear. Some attorneys shy away from creating infographics, but there are many online design tools to make it quick and easy to produce this type of original content for your law firm. Infographics can live on your website and even be repurposed in your firm’s social media presence or collateral materials. They are a great way of explaining steps in the legal process or even the interpretation of complicated laws.

Podcasts

This type of content requires lots of planning and time, but it can pay off in spades. Creating your own podcast that answers legal questions or explains complex legal concepts in fun, easy-to-digest ways allow you to reach a massive audience of potential clients with interest in your area of practice. Podcasts are a great idea for attorneys that have clients with similar issues. For a family law attorney this might include child custody issues or post-decree matters.  A business attorney might have clients facing issues related to corporate formation or the hiring of vendors. Having a practice area-centered podcast with episodes that focus on issues that potential clients commonly struggle with will help you attract a greater audience of listeners.

Video Marketing

Videos showcase your personality, highlight what unique traits you bring to the table, and create a connection with potential clients. Integrate search terms into your video headline and description to bring in even more traffic to your website. YouTube is the “second largest search engine behind Google,” making it a great platform for uploading and sharing your law firm’s videos. These videos can be focused on the same frequently asked questions that you would answer in written format on your website. They can also be a case study or even a client testimonial.

Guest Posts

Publishing your content on other websites expands your network, strengthens your own website’s search engine optimization, and helps build your law firm’s brand—you have a lot to gain from just one post. You can publish on other legal blogs, magazines, and local publications. Guest posting is an easy way to credential your practice through bylines and repurposable written content.

Newsletters

Whether you publish monthly or quarterly, do not give up on your law firm’s newsletter. While some people have eschewed their newsletters for more modern forms of content, you leave out a significant part of your client base when you do so. For maximum effect, stick to a strict publication schedule that allows you to share valuable, relevant information—do not just send out a newsletter for the sake of it. Depending on your needs, you could do an e-mail newsletter, a print newsletter, or both. The biggest challenge for law firms and newsletters is staying on schedule and determining in advance what to say. Marketing savvy law firms develop an editorial calendar for their newsletters one year in advance, so they are never scrambling to publish the newsletter.

White Papers

Driven by data and statistics, white papers look at a specific issue within your practice area and dig deep into the information surrounding it. The information provided in a white paper also provides a path forward for solving the proposed issue. Law firms can successfully produce their own white paper content and keep it on their website to connect with potential clients. But be sure to use the help of a graphic designer if you intend to create a white paper for your law firm. Their creative eye will help make your content stand out to readers.

Curated Content

Sharing resources with website visitors and clients shows that you genuinely care about their wellbeing, not just getting them to become paying clients. You might create listicles that link out to useful resources and guides. These work great for consumer-facing practices that serve populations that might need guidance outside of their legal matter. For instance, a plaintiff personal injury attorney could publish ideas on mental health and wellbeing after being treated for a serious car accident. Your goal in using curated content is to be a central hub for the information your audience could need to know about your practice area and how it affects their lives.

Testimonials

Satisfied clients are often the best form of advertising. If potential clients see that you have successfully solved the problem they now face, they have substantial motivation to reach out to you. Testimonials and reviews can be collected and curated to be their own page on your law firm website. However, ensure that you are working within the laws and ethics that regulate law firm and lawyer advertising as this can be a sticky area of law firm marketing.

E-Books

Compared to print books, e-books require almost no financial output and are incredibly easy to share. Some attorneys use electronic books as a vehicle to provide in-depth guides for clients interested in their legal services, while others repurpose blog content into an e-book for easy reading. You can also write an e-book and use it as a lead magnet—for example, a construction defect attorney might give a copy of “7 Things You Need to Know Before Buying a Newly Built Home” to those who sign up for their e-mail list.

LinkedIn Articles

One type of content that is often underutilized is LinkedIn content. When you write an info-rich LinkedIn article and share it with your network, they can share it with their network. Your reach can multiply quickly with just one piece of well-written content. This is an excellent strategy for expanding your professional network, increasing the likelihood of client referrals and brand recognition.

Tutorials

Guides and tutorials offer detailed step-by-step instructions on specific tasks, which is content that consumers can use right away. The topics you cover depend on your audience and area of practice, so you could start by finding out what struggles your target market has and what legal issues you can immediately alleviate. For example, a family law attorney might write a how-to guide on gathering financial documents and other paperwork for easy analysis of assets during a divorce. A business law attorney could do a screencast of how to register a business in their state and set up tax filing.

Lectures and Speaking Engagements

When you establish yourself as a leader among your peers, you are in an excellent position to gain acceptance as an expert among potential clients. You can host CLE events and dig deep into a topic relevant to your area of practice, serve as a speaker at legal conferences, and share your expertise at other industry events. Be sure to share any video content of your speaking engagements on your website. If your speech is later transcribed, it becomes another content source that could bring in clients and contacts.

For modern law firms, content is a key component in their marketing and business development strategy. Everything on this list of content types will funnel traffic back to your law firm’s website. By integrating different types of content into your marketing plans and on your website, you can reach clients from all walks of life while establishing your position within your practice area.

© 2022 Denver Legal Marketing LLC
For more articles about law firm management, visit the NLR Business of Law section.

February 2022 Legal News Roundup: Women in Law, Promotions & More

Happy belated Valentine’s Day from the National Law Review team. Please read on for new legal industry hires, promotions and awards.

Firm Recognition & Awards

Much is included on the 2022 Top Workplaces USA list, which recognizes organizations with a people-centered culture.

“At Much, our culture centers on people: our employees, our clients, and our community partners,” said Managing Partner Mitchell Roth. “We work each day to support a collaborative, kind, and service-oriented environment, so to be recognized for our culture on a national level is a tremendous honor.”

The rankings are based on employee feedback from a survey administered by Energage, an employee engagement technology partner. The survey gauged various aspects of workplace culture, including  alignment, execution, connection, and more.

Womble Bond Dickinson is one of the Best Places to Work for lesbian, gay, bisexual, transgender and queer (LGBTQ+) workplace equality, earning a perfect score of 100 percent on the 2022 Corporate Equality Index (CEI).

The survey is administered by the Human Rights Campaign, and acts as a benchmarking tool to track how businesses are adopting equitable workplace policies, practices and benefits for LGBTQ+ employees. Womble Bond Dickinson earned perfect scores every year since 2015.

“We are honored to be named one of the HRC’s Best Places to Work for LGBTQ+ Employees once again,” said Betty Temple, Chair & CEO of Womble Bond Dickinson (US) LLP. “We at Womble Bond Dickinson have worked hard to promote diversity and inclusion. These efforts include earning Mansfield Rule 4.0 Certification. The goal of the Mansfield Rule is to boost the representation of historically underrepresented lawyers—including LGBTQ+ attorneys—in law firm leadership, partner promotions and lateral hires by broadening the pool of candidates considered for these opportunities. We have much more work to do, but we are proud to be recognized for the progress we have made.”

Lawdragon recognized Foley & Lardner partners Daniel Kaplan, John (Jack) Lord, Jr., and Rachel Powitzky Steely on its 2022 edition of 500 Leading U.S. Corporate Employment Lawyers, an annual recognition of the nation’s top advisors on workforce issues. Lawdragon selected the honorees based on submissions, editorial vetting and journalistic research.

Lawdragon said that this year’s honorees “specialize in defending corporations in everything from wage and overtime claims to trade secret disputes, while helping companies maintain global workforces throughout a pandemic.”

Law firm Hiring & Additions

Varnum LLP expanded its intellectual property practice with the addition of Timothy D. Kroninger. Joining the firm’s Detroit office as an associate, Mr. Kroninger focuses his practice on copyright law, trade secret law, patent and trademark prosecution and more. He also has experience in drafting design patent applications, as well as participating in United States Patent and Trademark Office (USPTO) trademark opposition proceedings.

Beyond his practice at Varnum, Mr. Kroninger works as a supervising attorney in the Trademark and Entrepreneur Clinic at University of Detroit Mercy College of Law. There, he instructs law students on copyright registration, drafting corporate documents, and protection of trademarks.

Beveridge & Diamond PC elected four new principals: Eric Christensen, located in Seattle; Allyn Stern, located in Seattle; Michael Vitris, located in Austin; and Gus Winkes, located in Seattle. Mr. Christensen practices in energy law, assisting companies and consumers in navigating the legal and regulatory landscape. Ms. Stern, former U.S. EPA regional counsel, helps clients develop environmental compliance strategies. Mr. Winkles practices in a variety of fields, providing solutions-oriented legal representation in the areas of enforcement defense, regulatory compliance, and contaminated site cleanup. Mr. Vitris, former litigation attorney with the Texas Commission on Environmental Quality, defends companies in class actions and environmental mass torts.

“Each of these Principals’ talents, skills, and expertise deepen and enhance B&D’s dynamic regulatory compliance and litigation practice as environmental and energy law continue to evolve,” said firmwide managing principal Kathy Szmuszkovicz. “They’ve proven their ability to deliver top-notch service to clients and to serve as thought-leaders at a particularly exciting time in our practice. We look forward to their continued success and contributions in their new roles.”

Barnes & Thornburg LLP added five new attorneys and legal professionals across various offices. Associate William Choi  joined the firm’s Los Angeles office, and associate Albert D. Farr joined the New York office. Mr. Choi focuses his practice on product liability and complex civil litigation, and he is well-versed in all aspects of pretrial case management. Likewise, Mr. Farr practices in transactional tax law, counseling multinational strategic and private equity clients on transaction tax structuring, tax diligence and more.

Furthermore, legal professionals Amit Datta, Al Maloof, and Soyoung Yang joined Barnes & Thornburg’s Chicago, Indianapolis, and Washington D.C. offices, respectively. Dr. Datta, a business transaction advisor, provides targeted legal advice and strategic insight for European clients conducting business in the U.S. Mr. Maloof, a client relationship specialist, provides strategic consultation among the firm’s government services, compliance and regulatory attorneys. Ms. Yang, a legal fellow, aids attorneys and clients on matters related to international trade, customs and the supply chain.

William L. Nimick  joined the Construction Litigation and Counsel practice group at Goldberg Segalla LLP. An experienced litigator, Mr. Nimick is located in the firm’s Raleigh office, where he counsels insurers, contractors, subcontractors and corporate entities in liability claims including but not limited to property damage, personal injury and construction defects.

Previously, Mr. Nimick worked as a civil litigator across North Carolina, representing clients in areas such as wrongful death, workers’ compensation, and subrogation. Specifically he  handled subrogation claims such as motor vehicle accidents, product liability lawsuits and large fire losses.

Women in the Legal Industry

Angela Bowlin of Frilot LLC law firm has accepted a position serving on the International Association of Defense Council (IADC), an organization for attorneys who represent corporate and insurance matters. Ms. Bowlin focuses her practice on mass torts and class actions, with experience in asbestos and other toxic tort cases.

“I am honored to have been selected as a member of IADC and look forward to working on the many important committees related to the law and its many facets,” said Ms. Bowlin.

Nicole Archibald joined Foley Hoag LLP as their Director of Legal Recruiting. Ms. Archibald will work alongside the Foley Hoag team to attract and promote a diverse group of attorneys to help the firm achieve its diversity and inclusion goals.

“We’re very pleased to welcome Nicole to Foley Hoag, and are confident that she will be a great asset to the firm and its culture. Her considerable prior experience as a director of recruiting, legal search consultant and practicing litigator will prove a valuable asset as we look to 2022 and beyond. Our executive committee, practice leaders, hiring committee and I are excited to begin working with Nicole to attract new talent and strengthen our market-leading practices,” said Foley Hoag Co-Managing Partner Kenneth Leonetti.

“I look forward to collaborating with Foley Hoag’s management, department chairs and practice leaders, and hiring committee to develop, implement and execute proactive recruiting initiatives to further the firm’s hiring goals and strategic growth plan,” said Ms. Archibald.

Norton Rose Fulbright appointed New York partner Robin Adelstein as the Co-Head of Commercial Litigation, joining Houston partner Andrew Price. Ms. Adelstein brings extensive experience in litigating complex commercial disputes and advises companies with respect to antitrust issues regarding mergers, joint ventures and more.

“Robin has long been respected as a leader within the firm as our Global and US Head of Antitrust and Competition, and she is a highly-recognized practitioner in her field. I look forward to seeing the great work that our commercial litigation group will do under Robin’s and Andrew’s leadership,” said Jeff Cody, Norton Rose Fulbright’s US Managing Partner.

“Our firm has a longstanding reputation for advising clients on their most complex and significant matters. It is an honor to head Norton Rose Fulbright’s commercial litigation group along with Andrew; I am proud to be leading such a talented group of lawyers,” said Ms. Adelstein.

Article By Rachel Popa, Hanna Taylor, and Chandler Ford of The National Law Review / The National Law Forum LLC

For more on the business of law and legal news, click here to visit the National Law Review.

Copyright ©2022 National Law Forum, LLC

January 2022 Legal News Roundup: Law Firm Moves, Hiring & Recognition

Happy 2022 to all of our readers! We hope you all had a safe and healthy New Year. Read on for more legal industry updates.

Recent Law Firm Moves and Hiring

Van Ness Feldman law firm elected three new partners in their Seattle office:

“Clara, Steven, and Chris have distinguished themselves not only through their professional accomplishments, but by their relationships with clients and colleagues. They reinforce the firm’s collaborative culture,” said Van Ness Feldman Seattle Managing Partner Tadas Kisielius.

Stubbs, Alderton & Markiles (SA&M)  have expanded their firm with the additions of Apparel and Fashion lawyer Mark Brutzkus and litigator Nick Rozansky to their office in Southern California.

Mr. Brutzkus represents consumer product companies in various e-commerce and sourcing issues, and has advised apparel, textile and consumer product clients during various stages of the corporate process.

“SA&M is an excellent platform for me to expand my consumer product practice, particularly because the Firm has unparalleled experience working with venture-backed emerging growth, middle-market public, large technology, and entertainment and digital media companies, as well as investors, venture capital funds, investment bankers, and underwriters. More and more of my clients are asking for ancillary practice areas and specialized attorneys who can help with long term, holistic goals,” said Mr. Brutzkus.

Mr. Rozansky advises corporate clients on various issues including litigation matters, risk avoidance, IP protection, and more. When necessary, Mr. Rozansky handles more high-stakes cases such as infringement issues, contract cases and shareholder disputes.

“This move provides my clients with much needed corporate and M&A expertise, and greatly expands my litigation capacity by joining three renowned litigation partners and several extremely capable litigation associates,” said Mr. Rozansky.

“Mark and Nick share the values that make up our unique and coveted culture at Stubbs Alderton, and we look forward to Mark and Nick making immediate and lasting contributions to our Firm,” said Scott Alderton, SA&M’s Managing Partner.

Gilbert LLP elected Heather Frazier to the firm’s partnership, effective January 1, 2022. Ms. Frazier focuses on insurance recovery in mass-tort proceedings, complex alternative dispute resolution, and other matters. Ms. Frazier has been with Gilbert since 2015.

“I am thrilled to join the partnership at Gilbert alongside the most innovative and dynamic lawyers I have had the fortune to know. I look forward to continuing to contribute to the firm’s growth and unique culture in this new role and assisting our clients in resolving the unresolvable,” said Ms. Frazier.

“In her time with us, Heather has established herself not only as an excellent lawyer, but also as an outstanding Gilbert citizen. She has been a true asset to all of us, serving our clients and our community with talent, dedication and tenacity.  We look forward to a long, exciting and mutually satisfying relationship with our newest partner,” said firm founder Scott Gilbert.

Bernstein Shur law firm announced the election of four attorneys to shareholder:

“This is an outstanding group of lawyers. They’ve each shown impressive dedication not only to their clients but also to our local communities and the legal profession. I’m confident they will continue to use their deep knowledge and skills to deliver high-quality legal counsel to help our clients meet their business goals,” said Bernstein Shur CEO Joan Fortin.

Legal Industry Recognition and Awards

Polsinelli’s intellectual property department recently ranked in three of Patexia Inc.’s reports: ANDA Litigation Intelligence Report, IPR Intelligence Report and CAFC Intelligence Report.

The firm received multiple awards, including ranking among the Best Performing and Most Active Law Firms in several categories in Patexia Inc.’s 2021 ANDA Litigation Intelligence Report. Polsinelli also ranked among the Best Performing and Most Active Law Firms, which evaluated 243 law firms and 1,471 attorneys on activity and performance within the Hatch-Waxman/ANDA space.

“Our team continues to work hard and provide excellent client service, which is on display as we continue to rank highly in Patexia’s various reports,” said our Intellectual Property Department Chair Pat Woolley. “As one of the nation’s largest IP practices, our commitment to focusing on our clients’ businesses and service needs has again enabled us to earn recognition as one of the best performing firms.”

Dinsmore earned a diversity award from Crain’s Cleveland Business in its issue recognizing seven “notable businesses championing diversity and inclusion.” Dinsmore recently earned Mansfield Rule 4.0 Certification Plus for the 2021 iteration of the diverse leadership hiring initiative.

The firm also launched a  Pre-Law Minority Program to help students of color at four Kentucky universities, as well as creating a fellowship with Procter & Gamble and the Ohio Innocence Project at Cincinnati Law for a recent diverse law school graduate to gain experience in civil rights litigation and policy.

Everyone has a customer in the business world, and the customer population is becoming more diverse,” partner Richik Sarkar told Crain’s. “Look around your company. If everyone seems the same, especially in leadership, you’ll have a problem serving your customer, and if you don’t take steps to understand your customers, you’ll face failure sooner rather than later.”

Six Wiggin and Dana attorneys are included on the Best Lawyers in America® 2022 Family Law Edition.

They include the following partners:

And one associate is included on the Best Lawyers 2022 “Ones to Watch” list:

Chief Justice Stuart Rabner and the Supreme Court of New Jersey appointed Stark & Stark Shareholder Bhaveen Jani to the Supreme Court of New Jersey to the Supreme Court Committee on the Unauthorized Practice of Law.

“I am honored to have just been appointed to an important Supreme Court Committee where I will be able to protect the people in New Jersey and the legal profession from the unauthorized practice of law,” said Bhaveen. “Great responsibility comes with being an attorney, especially for our clients and the community, and this committee will work to protect those we serve.”

Mr. Jani’s three year term began January 1, 2022, and will end on December 31, 2024. Mr. Jani is part of a number of professional organizations in New Jersey, which qualified him for the position. These organizations include the New Jersey State Bar Association, the South Asian Bar Association of New Jersey, the New Jersey Association for Justice, the American Association for Justice, the Hunterdon County Bar Association and the Mercer County Bar Association.

The committee performs three major functions, including supplying advisory opinions, inquiry into complaints and investigation of the unauthorized practice of law.

Shumaker attorney Melanie Griffin was appointed by Florida Governor Ron DeSantis as the Secretary of the Florida Department of Business and Professional Regulation (DBPR). Ms. Griffin has advised businesses in a variety of commercial law issues and also has substantial employment law and trust and estate experience as well. Ms. Griffin has been recognized by many organizations over the years for her outstanding leadership efforts.

“I’m so pleased for Melanie to have this opportunity to service the citizens of the state of Florida,” said Ron Christaldi, Shumaker’s Tampa Managing Partner and President of Shumaker Advisors Florida. “With her depth of experience and her understanding of the business community, she will be an excellent leader of this important state agency.”

Shelli Erffmeyer and Renee Stallions, employees at Varnum LLP, were recently named Unsung Legal Heroes by Michigan Lawyers Weekly. The publication’s award recognizes non-attorney legal professionals who frequently surpass expectations and go above and beyond in their roles. Ms. Erffmeyer, a legal assistant supporting Varnum’s Litigation practice group, has been noted for her outstanding initiative and dedication, especially through the ongoing COVID-19 pandemic. Ms. Stallions, a senior systems applications analyst in the firm’s Information Technology Department, has been noted for her considerable flexibility and work ethic, ensuring Varnum’s technology continues to operate efficiently across all offices.

“Both Shelli and Renee are very deserving of this recognition. Their exemplary service and commitment to the firm was especially appreciated this past year throughout the challenges of the pandemic,” said Scott Hill, Varnum Executive Partner. “As we congratulate Shelli and Renee, we are once again reminded of the vital role of our support staff. Their contributions are critical to the success of our firm.”

Much Shelist, P.C. has announced its new membership in the Law Firm Antiracism Alliance (LFAA). The LFAA, which seeks racial equality and systemic change in the law, helps to coordinate allied law firms in order to enact change that benefits underserved and oppressed communities. Previously, Much has assisted the LFAA in filing an amicus brief before the Supreme Court, which argues that the Court should consider the retroactive application of Ramos v. Louisiana (which holds that non-unanimous jury verdicts are unconstitutional).

“We’re proud to join the nearly 300 Alliance firms working together to address systemic racism in the law,” said Steve Blonder, chair of the firm’s social responsibility initiative, Much Community. “It’s our privilege and our responsibility to continue working for the rights of marginalized people.”

Copyright ©2022 National Law Forum, LLC

Article By Hanna Taylor,  Rachel Popa and Chandler Ford of The National Law Review / The National Law Forum LLC

For more articles on the legal industry, visit the NLR Law Office Management section.

How Does SEO Help Law Firms? 10 Benefits

How Does SEO Help Law Firms?

Search Engine Optimization (SEO) is one of the most effective marketing strategies for law firms. Think about it: What better way to reach potential clients than in Google?

After all, people use Google to search for lawyers and legal service providers in their area – more than any other platform. SEO empowers law firms to rank high in the search results and attract clients who are already looking for services like theirs.

But SEO doesn’t just help law firms attract new clients. There are many benefits to adopting a law firm SEO strategy.

1. Organic Traffic

SEO is first and foremost focused on improving a website’s Google rankings and driving organic traffic. Most often, the goal is to rank high, consistently, in Search and earn organic visitors for the long term.

Lawyers can optimize their website for the search terms (“keywords”) people are using to search for their services. For example, if you are a family lawyer in Denver, you can attempt to rank for “denver family lawyer,” “family lawyer in denver,” “family law attorney denver” and the like.

Organic (unpaid) marketing is great because it doesn’t require a hefty ad spend in order to yield results. You can adopt your own SEO strategies to rank your website or choose to hire an SEO professional to aid the process.

2. Improved User Experience

Believe it or not, SEO is not just about pleasing the Google gods. In actuality, your goal should be to provide the best website experience, content, and information to your prospective visitors. Google’s algorithm serves to rank content that best matches what users are searching for.

SEO necessarily improves user experience (UX) because UX is included in Google’s known ranking factors. The speed, interactivity, and accessibility of your website are all important in terms of pleasing visitors and letting Google know your website is optimized.

A great UX keeps users on your website for longer and encourages them to “opt in” (contact you) rather than going to your competitors.

3. Faster Website Speed

Google assesses a website’s Core Web Vitals in order to determine that a website is fast and that its content is easily rendered to users. In other words, it wants to ensure that when users land on your site, it doesn’t take decades for your content to load.

Slow website speed can be a huge deterrent to potential clients. If your website takes too long, they are likely to go elsewhere. Also, slow website speed often means you have “heavy” images and code on your site, which can essentially glitch out or fail to load when users interact with them.

An effective SEO strategy works to improve your website’s Core Web Vitals across the board so you’re sure to provide a fast, user-friendly website experience to your visitors.

4. Better Content Marketing

The success of your SEO is largely driven by content. The content on your web pages and on your blog posts work to attract the right kinds of users to your site, improve your site’s authority, and so much more.

When you care about SEO, you care about your content, and in turn, create better content for users and for search engines. Better content not only ranks higher in Search, but it is more readily shared by users. Plus, your written content is often what ultimately convinces people to hire you.

5. Earned Links and Authority

Backlinks (links from other websites) are essentially votes of confidence from outside sites that your website is informative, factual, and valuable to users. Every SEO strategy aims to earn these authority-boosting links to show Google your website is legit.

Earned authority can improve your website’s appearance in search. At the same time, links from other websites can drive additional traffic to your website. Blogging, content marketing, and outreach are just a few ways law firms can earn backlinks for SEO.

6. Referral Traffic

Referral traffic is traffic that comes in via outside links or from other websites. SEO can help drive referral traffic to your site, because other sites begin to notice your content and want to link to it.

At the same time, most law firms adopt a localized SEO strategy that involves submitting their business information to local directories. These directories can then send more visitors (and leads) to your website.

Also, publishing expert-level content can grab the attention of other blogs and publications, which may then choose to feature you. Then, you can get this referral traffic via interviews, podcasts, and guest posts.

7. More Phone Calls

Law firm SEO often requires a localized strategy in order to target users in a specific service area. To do this, law firms can produce geo-specific content on their websites, submit to local directories, and even create a Google My Business listing.

Local SEO helps law firms get noticed in local search. With local listings, law firms can share their business contact information to drive more phone calls and leads.

In short, visitors don’t even need to visit your website if they are able to find your phone number directly from Google!

8. Improved Client Intake

Website optimization makes it far easier to collect lead information and file it away for better client intake. By including contact forms and contact information on your website, you can generate more digital leads and save this information to your client management system.

If you are strictly relying on phone calls, you’re likely missing out on a ton of potential leads. Contact forms, chat bots, and opt-ins make it easier than ever to gather lead information in real-time. You can even automate text messaging or email follow-up to reach potential clients faster.

9. Local and Foot Traffic

Local SEO also makes it easier for potential clients to find your physical office. You’re able to post your address and other business information so people can visit you in person, without ever having to go to your website.

Localization also sends geo-specific “cues” to Google telling it where your business exists and the areas it serves. If you have this information, it makes it more likely you will appear in the right local search results for the right audience. This is especially true if you work in a competitive market, but your competitors have not implemented SEO.

10. Reviews and Ratings

Reviews and SEO present a “chicken and the egg” situation; great reviews influence SEO, and SEO helps law firms earn reviews. There’s no way to go wrong!

Positive client reviews indicate to Google (and users) that your law firm is trustworthy, real (important!), and highly revered. SEO, in turn, encourages law firms to reach out and generate more positive reviews so they can improve their rankings.

Think those 5-star ratings don’t matter for Search? Think again! Not only do potential clients want to see those shining reviews, but Google values your business’s reputation as well. So don’t forget about reviews when it comes to your SEO.

SEO helps put your law firm on the map

SEO helps law firms beyond just traffic and lead generation; it provides a well-rounded marketing strategy that improves your business’s overall digital presence. And a better digital presence means more opportunities to attract new legal clients!

Every law firm should adopt SEO in order to improve user experience, website speed, content, and local visibility. This is one of the best ways to drive sustainable, organic traffic and put your website on the (Google) map.

Copyright 2022 © Hennessey Digital

Article By Jason Hennessey of Hennessey Digital

For more articles on SEO, visit the NLR Law Office Management section.

COVID-19: Cameras in The Courtroom: Public Access to Appellate Proceedings Post-COVID-19

INTRODUCTION

While federal and state appellate courts have historically been cautious about allowing cameras in the courtroom, the COVID-19 pandemic has pushed courts toward live audiovisual broadcasting to preserve public access to proceedings. Appellate courts’ new practices for virtual arguments and live audiovisual broadcasting1 present expanded opportunities for client engagement in the appellate process.

HISTORY OF PUBLIC ACCESS TO APPELLATE PROCEEDINGS

The founders did not countenance secret justice, believing that the operations of the courts were “matters of utmost public concern.”2

In the early years of the federal judiciary, Supreme Court justices lived this value when they rode circuit—traveling the country and hearing appeals in different courts. This allowed the public to view courtroom proceedings, showing the ways in which the new government, and its appellate judges, could serve their needs.3 Since circuit riding ended, however, both federal and state judiciaries have lagged in ensuring public access to court proceedings.

Only in 1980 did the Supreme Court first recognize a constitutional right to courtroom access. In Richmond Newspapers, Inc. v. Virginia,4  a criminal defendant on trial for murder asked that the courtroom doors be closed to the public, and the judge granted that request.5 A local newspaper sued, raising the issue of whether the public had a right to access the trial court’s proceedings.6 The Supreme Court said yes: The press and the public have a First Amendment right to access criminal trials.7 

The public may have the right to attend criminal trials, but the Fourth Circuit is the only federal court to hold that the public has a constitutional right to attend appellate court proceedings.8 The Ninth Circuit and Seventh Circuit, the only two other federal courts to address the issue, stopped short of finding a constitutional right, instead concluding that there is a presumption of public access to appellate proceedings.9 Among the states, about half have general and presumptive “open court” constitutional provisions or statutes.10 Only six states have specifically addressed the issue of public access to appellate proceedings — Connecticut, Maine, Missouri, New Mexico, and Rhode Island each have rules of appellate procedure that call for public access to appellate court proceedings.11 The Florida Supreme Court recognizes a “presumption of openness [that] continues through the appellate review process.”12 The Nevada Supreme Court has stated that it agrees with other courts’ recognition of a public policy towards public access to appellate proceedings.13

Even among appellate courts that recognize or practice public access, however, there has been disagreement as to whether that access should include live audiovisual broadcasting.

APPELLATE COURTS’ CONCERNS ABOUT CAMERAS

Until recently, many, if not most, litigators, judges, and scholars opposed allowing cameras in the courtroom.14 They worried that lawyers and judges would grandstand in the presence of cameras, becoming more dramatic, argumentative, or long-winded knowing that their image was being broadcast on television.15 Other lawyers and judges might feel self-conscious and limit their arguments or their questions.16 Justice Kennedy expressed concern that allowing audiovisual broadcasting in the Supreme Court would encourage lawyers and justices to engage in sound bites rather than make legal arguments.17

Another concern has been that cameras would create a “circus” atmosphere and undermine the seriousness of or politicize the matter before the court.18 The American Bar Association in 1937 drafted a model rule for state bar associations that admonishes judges:

Proceedings in court should be conducted with fitting dignity and decorum. The taking of photographs in the courtroom, during sessions of the court or recesses between sessions, and the broadcasting of court proceedings, degrade the court and create misconceptions with respect thereto in the mind of the public and should not be permitted.19

This rule—or, more accurately, ban—was adopted by all federal jurisdictions and all but three states.20

Incremental change began in the 1980s. After demonstrations urging the Supreme Court to permit cameras in the courtroom and a letter from C-SPAN offering to help make that a reality, Chief Justice Rehnquist formed an ad hoc committee in 1988 to study the issue.21 From 1990 to the mid-2010s, federal circuit and state supreme courts began to explore the idea of cameras in the courtroom. A pilot program began in 1991 in which the Second and Ninth Circuits televised appellate arguments.22 While the program did not result in the Judicial Conference mandating cameras in all courtrooms, the Ninth Circuit was permitted to continue using cameras.23 State supreme courts followed similar test-and-see approaches. The Pennsylvania Supreme Court, for example, spent six months testing audiovisual broadcasting before formally approving oral arguments to be broadcast live on the Pennsylvania Cable Network.24

Nonetheless, many courts remained cautious about allowing cameras in the courtroom. For example, the Alabama Canons of Judicial Ethics prohibit live audiovisual broadcasting of proceedings unless authorized by the presiding judge.25 Such authorization requires obtaining advance consent from the attorneys who would be recorded and establishing a plan to ensure that the live broadcasting will not detract from the “dignity of the court proceedings.”26 The Fourth Circuit, despite having expressly recognized the public’s right to access appellate proceedings, refused to permit cameras in its courtrooms, instead opting to broadcast only audio of oral arguments.27

Such hesitancy has largely evaporated during the COVID-19 pandemic.

THE RISE OF LIVE BROADCAST VIRTUAL ORAL ARGUMENTS DURING THE PANDEMIC

The COVID-19 pandemic pushed judicial proceedings, including appellate proceedings, onto virtual platforms. This encouraged appellate courts to consider their commitments to open access and adjust accordingly. Federal courts, including the Supreme Court, instituted live audio broadcasting.28State supreme courts took this opportunity to bring cameras into the courtroom.

Now, nearly two years into the COVID-19 pandemic, 38 out of the 50 state supreme courts are offering live audiovisual broadcasting of oral arguments:

Alaska

Arizona

Arkansas

California

Colorado

Connecticut

Delaware

Florida

Georgia

Hawaii

Idaho

Illinois

Indiana

Iowa

Kansas

Kentucky

Louisiana

Maryland

Massachusetts

Michigan

Minnesota

Mississippi

Nebraska

Nevada

New Hampshire

New Jersey

New Mexico

New York

North Carolina

North Dakota

Ohio

Oregon

Pennsylvania

South Carolina

Tennessee

Texas

Washington

West Virginia

Of the states that have adopted a live audiovisual broadcasting system in response to the COVID-19 pandemic’s impact on court access, public engagement has greatly increased. For example, hundreds of viewers logged on to the Hawaii Supreme Court’s first-ever live audiovisual broadcast oral argument regarding a water rights case.29 Will a return to in-person arguments prompt retrenchment, or is the genie now out of the bottle? We cannot know for sure, but fear of the unknown and dark predictions of grandstanding have lost much of their power in the debate over cameras in the appellate courtroom.

HOW PUBLICLY ACCESSIBLE, VIRTUAL ORAL ARGUMENTS HELP CLIENTS

Live audiovisual access to appellate proceedings promotes public access and transparency. No audience has a bigger stake in these proceedings than the clients that are a party to them. Here are just a few ways they benefit from audiovisual access:

  • Attorneys can share recordings of or links to live audiovisual broadcasts with clients that are new to appeals, so they can learn what to expect of the proceedings.
  • Clients no longer have to travel to watch oral argument, saving them significant money and time.
  • Clients can view the work of counsel they are interested in hiring, the approach of opposing counsel, and the ways in which appellate judges and justices engage with attorneys, all of which audio recordings and written transcripts only imperfectly reveal.

Clients should, therefore, welcome this development and encourage its continuation.

1 This client alert uses the term “live audiovisual broadcasting” to describe both live television broadcasts and livestreaming of video as well as audio content via the Internet.

2 Landmark Commc’ns, Inc. v. Virginia, 435 U.S. 829, 839, 98 S. Ct. 1535 (1978); see also JOHN ADAMS, A DISSERTATION ON THE CANON AND THE FEUDAL LAW, NO. 3 (1765), https://founders.archives.gov/documents/Adams/06-01-02-0052-0006 (last accessed Jan. 3, 2022) (“[L]iberty must at all hazards be supported. . . . And liberty cannot be preserved without a general knowledge among the people, who have a right from the frame of their nature, to knowledge . . . of the characters and conduct of their rulers. Rulers are no more than attorneys, agents and trustees for the people; and if the cause, the interest and trust is insidiously betray[ed], or wantonly trifled away, the people have a right to revoke the authority, that they themselves have deputed, and to constitute abler and better agents, attorneys and trustees. And the preservation of the means of knowledge, among the lowest ranks, is of more importance to the public, than all the property of all the rich men in the country.”).

3 David R. Stras, Why Supreme Court Justices Should Ride Circuit Again, 91 MINN. L. REV. 1710, 1716–17 (2007).

4 448 U.S. 555, 100 S. Ct. 2814 (1980).

5 Id. at 559–60.

6 Id. at 562–63.

7 Id. at 580.

8 United States v. Moussaoui, 65 F. App’x 881, 890 (4th Cir. 2003) (“[T]he First Amendment guarantees a right of access by the public to oral arguments in the appellate proceedings of this court. Such hearings have historically been open to the public, and the very considerations that counsel in favor of openness of criminal trial support a similar degree of openness in appellate proceedings.”).

9 United States v. Sedaghaty, 728 F.3d 885, 892 n.2 (9th Cir. 2013) (recognizing a “strong public policy in favor of public access to judicial proceedings” to explain why it heard nearly all of the issues on appeal in open court); In re Krynicki, 983 F.2d 74, 75–76 (7th Cir. 1992) (“Judges deliberate in private but issue public decisions after public arguments based on public records. . . . Any step that withdraws an element of the judicial process from public view makes the ensuing decision look more like fiat; this requires rigorous justification. . . . Public argument is the norm even, perhaps especially, when the case is about the right to suppress publication of information.”).

10 ALA. CONST. ART. I, § 13; COLO. CONST. ART. II, § 6; CONN. CONST. ART. I, § 10; DEL. CONST. ART. I, § 9; FLA. CONST. ART. I, § 21; IDAHO CONST. ART. I, § 18; IND. CONST. ART. I, § 12; KY. CONST. § 14; LA. CONST. ART. 1 § 22; MISS. CONST. ART. III, § 24; MONT. CONST. ART. II, § 16; NEB. CONST. ART. I, § 13; N.C. CONST. ART. I, § 18; N.D. CONST. ART. I, § 9; OHIO CONST. ART. I, § 16; OKLA. CONST. ART. II, § 6; OR. CONST. ART. I, § 10; PA. CONST. ART. I, § 11; S.D. CONST. ART. VI, § 20; TENN. CONST. ART. I, § 17; TEX. CONST. ART. I, § 13; UTAH CONST. ART. I, § 11; WA. CONST. ART. I, § 10; W.VA. CONST. ART. III, § 17; WYO. CONST. ART. I, § 8; IOWA CODE § 602.1601 (2018).

11Conn. R. App. P. § 70-9; M.R. App. P. 12B(e); Miss. Sup. Ct. Op. R. 20.02(c); N.M. R. App. P. 12-322; R.I. Sup. Ct. R. 22(b).

12Barron v. Fla. Freedom Newspapers, 531 So. 2d 113, 118 (Fla. 1988).

13Whitehead v. Comm’n on Jud. Discipline, 111 Nev. 70, 119–21 (Nev. 1995) (citing In re Krynicki, 983 F.2d at 75, and Barron, 531 So. 2d at 118,, in justifying its decision to refuse to seal its review of charges of judicial misconduct).

14 Nancy S. Marder, The Conundrum of Cameras in the Courtroom, 44 ARIZ. ST. L.J. 1489, 1514–17 (2012).

15 Id. at 1514.

16 Id. at 1515.

17 Id. at 1514–15.

18 Id. at 1517.

19 ABA CANONS OF PROFESSIONAL ETHICS, CANON 35 (1937); see also Richard B. Kielbowicz, The Story behind the Adoption of the Ban on Courtroom Cameras, 63 JUDICATURE 14, 14 (1979).

20 Kielbowicz, 63 JUDICATURE at 14.

21 Lysette Romero Córdova, Will SCOTUS Continue to Livestream Oral Arguments and are Cameras Next? Let’s Hope So., AM. BAR ASS’N (Aug. 24, 2021), https://www.americanbar.org/groups/judicial/publications/appellate_issue….

22 History of Cameras in Courts, U.S. Cts., https://www.uscourts.gov/about-federal-courts/judicial-administration/ca… (last accessed Jan. 3, 2022).

23 Id.

24 Amy Worden, Pennsylvania Supreme Court to Allow Cable TV Cameras, PHILA. INQUIRER (Aug. 15, 2011), https://www.inquirer.com/philly/news/breaking/20110815_Pa__Supreme_Court….

25 Ala. Canons Jud. Ethics 3.A(7); 3.A(7B), https://judicial.alabama.gov/docs/library/rules/can3.pdf (last accessed Jan. 3, 2022).

26 Id.

27 Electronic Device Policy, U.S. Ct. of Appeals for the Fourth Cir., https://www.ca4.uscourts.gov/oral-argument/visiting-the-court/electronic… (last accessed Jan. 3, 2022).

28 U.S. Sup. Ct. Audio Broad., https://www.supremecourt.gov/oral_arguments/live.aspx (last accessed Jan. 3, 2022); U.S. Ct. of Appeals for the First Cir. Audio Broad., https://www.youtube.com/channel/UCiq_Kg0zEPrjMFK_s-KP5_g (last accessed Jan. 3, 2022); U.S. Ct. of Appeals for the Second Cir. Audio Broad., https://ww2.ca2.uscourts.gov/court.html (last accessed Jan. 3, 2022); U.S. Ct. of Appeals for the Third Cir. Audio Broad., https://www.youtube.com/channel/UCLSXp4JMYiFc7BHD_ln3d-w (last accessed Jan. 3, 2022); U.S. Ct. of Appeals for the Fourth Cir. Audio Broad., https://www.ca4.uscourts.gov/oral-argument/listen-to-oral-arguments (last accessed Jan. 3, 2022); U.S. Ct. of Appeals for the Fifth Cir. Audio Broad., https://www.ca5.uscourts.gov/ (last accessed Jan. 3, 2022) (audio broadcast links posted weekly); U.S. Ct. of Appeals for the Sixth Cir. Audio Broad., https://www.ca6.uscourts.gov/live-arguments (last accessed Jan. 3, 2022); U.S. Ct. of Appeals for the Seventh Cir. Audio Broad., https://www.youtube.com/channel/UCWvXsHlWdsIJHy3R_znCUsA (last accessed Jan. 3, 2022); U.S. Ct. of Appeals for the Eighth Cir. Audio Broad., https://www.ca8.uscourts.gov/ (last accessed Jan. 3, 2022) (audio broadcast public access telephone numbers posted weekly); U.S. Ct. of Appeals for the Tenth Cir. Audio Broad., https://www.youtube.com/c/theuscourtofappealsforthe10thcircuit (last accessed Jan. 3, 2022); U.S. Ct. of Appeals for the Eleventh Cir. Audio Broad., https://www.ca11.uscourts.gov/live-streaming-oral-arguments (last accessed Jan. 3, 2022); U.S. Ct. of Appeals for the Dist. of Columbia Cir. Audio Broad., https://www.cadc.uscourts.gov/internet/home.nsf/Content/VL%20-%20Calenda… (last accessed Jan. 3, 2022); U.S. Ct. of Appeals for the Fed. Cir. Audio Broad., https://www.youtube.com/channel/UC78NfBf28AQe3x7-SbbMC2A (last accessed Jan. 3, 2022). The Ninth Circuit is the only federal appellate court to date to offer audiovisual broadcasting. U.S. Ct. of Appeals for the Ninth Cir. Audiovisual Broad., https://www.youtube.com/c/9thCircuit (last accessed Jan. 3, 2022).

29 Madison Adler & Allie Reed, All U.S. Appeals Courts Embrace Argument Streaming Due to Covid, BLOOMBERG (Aug. 4, 2020), https://news.bloomberglaw.com/pharma-and-life-sciences/all-u-s-appeals-c….

Copyright 2022 K & L Gates

Article By Robert B. Mitchell and Monica A. Romero of K&L Gates

For more articles on COVID-19 in the courtroom, visit the NLR Coronavirus News section.

2022 Legal Marketing Trends for Law Firm Success

Lawyers get into law to practice, not to focus on administrative tasks or marketing. However, running a law firm is much more than practicing law – it’s running a business. If law firms want to stay in business, they need to put effort into keeping abreast with legal marketing trends to attract new clients and keep the firm growing and profitable.

According to recent research, 57 percent of clients look for a lawyer on their own, and many use the internet to search for firms. In addition, 66 percent of solo lawyers do their own marketing, while 46 percent of law firms have a budget for marketing.

The global market size of the legal services industry is projected to grow over $900 billion by 2025, so it’s primed for innovation and evolution. Law firms need to stay current on legal trends and invest in marketing to be part of this massive industry growth.

Here are the top legal marketing trends for 2022:

  1. Setting SMART Goals

  2. Creating a Brand

  3. Running an SEO Campaign

  4. Embrace Content Marketing

  5. Explore Video Marketing

  6. Focus on the Right Social Media Platforms

  7. Post Reviews from Clients

  8. Showcase Case Studies

  9. Create an Email Marketing Campaign

  10. Use Automation to Track Legal Marketing Trends

  1. Setting SMART Goals

No strategy is worthwhile without goals. SMART goals are specific, measurable, achievable, relevant, and time-bound goals that ensure marketing results match their intent. Setting goals allows marketers to see what’s working and what isn’t to refine and reconsider the strategy.

For example, a goal to “generate new clients” doesn’t fit the SMART goals framework. Instead, the goal should be to increase the number of client leads generated per month from 15 to 30 as a result of the newsletter. This should be achieved in six months.

Each goal should be aligned with a purpose, or what the law firm is hoping to achieve. Here are some examples of general marketing goals:

  • Brand awareness

  • Lead generation

  • Client acquisition

  • Increased customer value

  1. Creating a Brand

Branding isn’t limited to retail corporations – law firms need a brand, too. A brand helps a law firm attract the right type of client and grow.

Creating a brand is a long process, but it starts with thinking about the mission and vision of the firm, the core values of the firm, and the unique value proposition (what separates the law firm from its competitors?).

  1. Running an SEO Campaign

Search engine optimization (SEO) is vital to any marketing plan in 2022. Competition is fiercer than ever, so law firms need to stand out and gain a ranking on the first page of the search engine results to drive traffic to the firm website.

Law firms should use tactics like content marketing, strong keyword research, optimized images, intuitive website structure, and a fast and secure web hosting platform to improve SEO.

  1. Embrace Content Marketing

Content marketing is essential for a law firm from both an SEO and a general marketing perspective. Valuable content turns a law firm into a thought leader in the industry or practice area, bringing clients back when they need a solution to a problem.

It’s important for firms to create in-depth, original content that addresses common questions for the target audience. A good place for firms to start is with a legal blog that addresses topics such as frequently asked questions from clients.

  1. Explore Video Marketing

Video marketing is sweeping the marketing world, and it has plenty of value for law firms. Consumers are more likely to listen to a message in video format than written format since people like to skim. Using a video gets the message across and serves to humanize the law firm’s brand.

Videos come in many shapes and forms, including animated explainer videos that break down complex legalese, spokesperson videos with a partner answering frequently asked questions, and client testimonials to showcase how the firm helps people. These videos can be used on the firm’s website, emails, or social media accounts like YouTube and Facebook.

  1. Focus on the Right Social Media Platforms

Plenty of law firms use social media platforms, but not all are created equal. It can be challenging to maintain accounts on every social media platform, so it’s best for law firms to select the platforms that have the most prospective clientele.

Once law firms focus on the ideal social media platforms, they can observe how clients and other law firms interact and increase engagement with followers. Over time, the presence on social media will grow.

  1. Post Reviews from Clients

Client reviews go a long way in helping law firms attract new clients and earn a higher search engine ranking. If a law firm doesn’t have a lot of reviews, it’s important to prompt clients to leave a review on social media, Google, or the website.

If getting reviews is a challenge, law firms can create incentives for staff to ask for reviews and how it can impact the firm. The firm can also offer incentives to clients. Keep in mind that video reviews or testimonials can go a long way in increasing credibility for a firm.

  1. Showcase Case Studies

Case studies are in-depth and demonstrate expertise and success for clients. Law firms should have a page with current, comprehensive case studies that highlight successful case outcomes. If it’s well organized, clients can find case studies that are similar to their case and gain more confidence in selecting a firm.

  1. Create an Email Marketing Campaign

Despite social media and other communications, email marketing is an incredible outbound marketing technique that’s still important in 2022. Nearly 60 percent of marketers say that email delivers the highest ROI, no matter the industry.

Sending out targeted, value-packed emails can help a law firm build credibility, convert new leads, and attract new and repeat customers. Once the email list is built, law firms can segment the list according to the stage of the customer journey, location, practice area, and more to create highly targeted email messaging.

  1. Use Automation to Manage Legal Marketing Trends

The legal industry is traditional, but legal practice management software is the way modern firms get ahead. Legal management software, like PracticePanther, helps law firms in a variety of lucrative business operations including streamlining billing and invoicing managing client communications and tracking time. With the burden of marketing tasks, having legal practice management software allows law firms to automate many day-to-day tasks, freeing time to focus on marketing efforts. It also offers automation for some marketing efforts, such as custom tags to track lead sources or assigning marketing tasks through workflows to ensure you’re never missing a lead.

© Copyright 2022 PracticePanther

Article By PracticePanther

For more articles on legal marketing, visit the NLR Law Office Management.

In-House Counsel’s Role in Bridging the Generation ‘We’ Gap

A new generation of tech savvy, social justice-focused and environmentally aware employee stakeholders are creating recruitment, retention and other employment challenges. Unlike their predecessors, the “Generation We” cohort of employees (which loosely encompasses Gens Y and Z and even the new “Alphas”) tend to view employment as experimental rather than a long-term commitment. Managing employees with a transactional approach to work and who demand purpose-driven employment creates significant human capital risk. Corporate counsel can play a key role in managing and mitigating that risk, not only in response to the growing ESG disclosure and regulation trends, but as part of the need to design future-proof legal frameworks for the workplace.

The Framework for Generation-Conscious Policies

Good compliance practice begins with a forward-looking framework for employment policies. The pandemic has razed traditional office life and if the prediction that 37% of office desks will remain empty in 2022 comes true, the technology supporting remote work and the policies governing it are mission critical. Generation We embraces technology as a life tool, not just a work tool.  The primacy of technology requires a second look at policies that regulate it. Examples of leading-edge policies include those addressing AI infrastructure in the workplace (as applied to, for example, applicant tracking systems) and policies addressing anti-bias in technology. Social media and communication policies also demand a generationally-aware review.  These policies, which are needed for brand protection and communication consistency, may need modernization in light of the platforms Generation We inhabit. One of legal’s (many) jobs is to construct that compliance framework. This may mean more than an annual review of human resources policies which is tough enough in this frenetic environment. But that policy review should include second look at all employment policies to ensure they are generationally adept, consistent with technology changes, and meet what the new workforce demands.

Who Participates and How

The Zoom room may have been new at the pandemic’s inception, but is mundane now. In-person teams have been displaced by fully remote or hybrid collaboration and a host of legal issues the virtual world creates. Some employment policies may not account for virtual world inclusiveness or rules of engagement. Microaggressions could be amplified in the virtual environment as employees who feel left out may lack the typical platforms to make those feeling known – resulting in the public broadcast of employment disputes or job abandonment. It is hard to pick up on social cues from an inch square web-box. It may even be harder to identify when someone feels sidelined because of gender, race or other underrepresented status. Legal should play a role in championing people on the sidelines. This means empowering managers to shut down grandstanders who grab the virtual floor. It also means taking note of those who don’t virtually raise their hands, and ensuring that all employees are heard. Rules of engagement regarding the use of video (all on? all off?) and the discouragement of side-chats and other digital unpleasantness not only express inclusiveness but role models best practices. Generation We demands inclusiveness in their work and personal lives; they are unforgiving of employers who lack sensitivity to these issues and are quick to publicize their contrary views.

Learning, not Training

Mandatory training may not speak to socially aware employees who reject stereotypical gender roles and labels and embrace racial justice. Employers cannot legally abandon statutorily-mandated training, but they can modernize it. Structured meetings with a core educational focus is meaningful because it imparts information and drives behavior. Counsel should consider helping their human resource partners to update traditional training to reflect learning about unconscious bias. Similarly, new subjects like mindfulness, wellness, mental health issues and how the workplace impacts people might also be included in learning tools.  Are the corporation’s core messages embedded in the training or is it is an off-the-shelf program lacking relevance to the business? Training is an important part of counsel’s compliance obligations but incorporating the corporation’s core mission into that programming in a customized way is an effective learning tool. Corporate counsel plays a key role in driving change in these learning systems and these changes could positively mitigate human capital and business risk.

Performance with Purpose

Corporate counsel’s role is becoming less transactional (get the deal done) and more transformational (recruiting and retaining the workforce and implementing the ceaseless legal developments that have altered how we work). Performance in this context may be more than returning value to shareholders or a fulfilling a non-profit’s philanthropic aim. Performance may instead encompass achieving a group aim.  The Great Resignation anecdotally informs us that Generation We is in search of meaning and personal growth, and not always money (though they are keenly interested in equitable compensation). Purpose-driven organizations can lead to a sense of community.  Because community is important to this generation, the identification and amplification of the corporate mission becomes even more important. A recently released Goldman Sachs Asset management report concludes that a growing percentage of youngers workers are already planning to retire earlier than their predecessors. If that movement is real, retaining the next generation of workers becomes even more important.

Generation We is driving the primacy of the employee stakeholder and underlies the addition of the “E” to ESG. This generation fearlessly exercises their workplace voice and are quick to abandon work when a business cannot articulate or veers off a cohesive a mission. Counsel can play a key role in bridging the intergenerational divide. That role and its impact begins with the compliance framework being built in a manner that adapts to the ever-growing expectations of the next generation of the workforce.

©1994-2022 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved.

Article By Jennifer B. Rubin of Mintz

For more articles on Generation We, visit the NLR labor section.