EEOC and the DOJ Issue Guidance for Employers Using AI Tools to Assess Job Applicants and Employees

Employers are more frequently relying on the use of Artificial Intelligence (“AI”) tools to automate employment decision-making, such as software that can review resumes and “chatbots” that interview and screen job applicants. We have previously blogged about the legal risks attendant to the use of such technologies, including here and here.

On May 12, 2022, the Equal Employment Opportunity Commission (“EEOC”) issued long-awaited guidance on the use of such AI tools (the “Guidance”), examining how employers can seek to prevent AI-related disability discrimination. More specifically, the Guidance identifies a number of ways in which employment-related use of AI can, even unintentionally, violate the Americans with Disabilities Act (“ADA”), including if:

  • (i) “[t]he employer does not provide a ‘reasonable accommodation’ that is necessary for a job applicant or employee to be rated fairly and accurately by” the AI;
  • (ii) “[t]he employer relies on an algorithmic decision-making tool that intentionally or unintentionally ‘screens out’ an individual with a disability, even though that individual is able to do the job with a reasonable accommodation”; or
  • (iii) “[t]he employer adopts an [AI] tool for use with its job applicants or employees that violates the ADA’s restrictions on disability-related inquiries and medical examinations.”

The Guidance further states that “[i]n many cases” employers are liable under the ADA for use of AI even if the tools are designed and administered by a separate vendor, noting that “employers may be held responsible for the actions of their agents . . . if the employer has given them authority to act on [its] behalf.”

The Guidance also identifies various best practices for employers, including:

  • Announcing generally that employees and applicants subject to an AI tool may request reasonable accommodations and providing instructions as to how to ask for accommodations.
  • Providing information about the AI tool, how it works, and what it is used for to the employees and applicants subjected to it. For example, an employer that uses keystroke-monitoring software may choose to disclose this software as part of new employees’ onboarding and explain that it is intended to measure employee productivity.
  • If the software was developed by a third party, asking the vendor whether: (i) the AI software was developed to accommodate people with disabilities, and if so, how; (ii) there are alternative formats available for disabled individuals; and (iii) the AI software asks questions likely to elicit medical or disability-related information.
  • If an employer is developing its own software, engaging experts to analyze the algorithm for potential biases at different steps of the development process, such as a psychologist if the tool is intended to test cognitive traits.
  • Only using AI tools that measure, directly, traits that are actually necessary for performing the job’s duties.
  • Additionally, it is always a best practice to train staff, especially supervisors and managers, how to recognize requests for reasonable accommodations and to respond promptly and effectively to those requests. If the AI tool is used by a third party on the employer’s behalf, that third party’s staff should also be trained to recognize requests for reasonable accommodation and forward them promptly to the employer.

Finally, also on May 12th, the U.S. Department of Justice (“DOJ”) released its own guidance on AI tools’ potential for inadvertent disability discrimination in the employment context. The DOJ guidance is largely in accord with the EEOC Guidance.

Employers utilizing AI tools should carefully audit them to ensure that this technology is not creating discriminatory outcomes.  Likewise, employers must remain closely apprised of any new developments from the EEOC and local, state, and federal legislatures and agencies as the trend toward regulation continues.

© 2022 Proskauer Rose LLP.

May 2022 Legal Industry News: Law Firm Additions, Industry Awards and Recognition, and Pro Bono Efforts

Happy May! As the weather gets warmer, we hope you are remaining safe, relaxed, and healthy. Please read on to find the latest news in law firm hiring and expansion, legal industry recognition, and pro bono and legal aid efforts.

Law Firm Hiring and Expansion

Sidley Austin LLP has expanded its Emerging Companies practice with the addition of Cynthia Bai and Nicholas Frey, both of whom are located in the firm’s Palo Alto office. Ms. Bai, who also joins Sidley’s Global Finance group, focuses her practice on debt financing transactions across a variety of sectors, including healthcare, life science, and technology. Mr. Frey, who also joins the firm’s Employee Benefits and Executive Compensation group, focuses his practice on capital markets transaction support, equity plan and award design, mergers and acquisitions, and more.

Martin Wellington, leader of Sidley’s Emerging Companies and Venture Capital practice and a member of the firm’s Executive Committee, said:

“With over a dozen new partners nationally in the emerging growth practice over the past several years, our strategic investment in this sector is only gaining momentum. Cynthia and Nic bring the Silicon Valley-native expertise that entrepreneurial technology and life sciences companies expect in credit and executive compensation matters, as they are intimately familiar with the bespoke practices and market norms that have grown up in this sector.”

Kennedys Law LLP has promoted 22 new attorneys to partner, a record-high number for the firm. With these additions, the firm’s total worldwide partner count stands at 293. The following attorneys have been selected for promotion:

“I am delighted to recognise and reward a record number of new partners this year and to see that success shared so widely across our global offices,” said senior partner Nick Thomas. “We are incredibly fortunate to have such a dedicated and diverse workforce, which not only enables us to be where our clients need us most but has allowed us to continue growing even during a challenging couple of years.”

Akin Gump Strauss Hauer & Feld LLP has added Uri Itkin as a partner in the Investment Funds Litigation practice group. Mr. Itkin, a nationally recognized litigator and trial attorney, represents investment funds in all types of securities and commercial matters, such as real estate transactions, distressed corporate debt, and structured finance.

“Uri’s arrival is another outstanding addition to our litigation practice,” said Akin Gump chairperson Kim Koopersmith. “Uri is at the intersection of funds, litigation and regulatory, all market leading practices at our firm. He is perfectly situated to add tremendous value to our clients.”

“I am looking forward to continuing to grow my practice and building relationships with Akin Gump’s investment fund clients and my new colleagues at the firm,” said Mr. Itkin. “I am particularly excited about the firm’s wide range of knowledge and experience and its collaborative approach. They give clients valuable access to Akin Gump’s established team of knowledgeable attorneys who are experienced in a wide cross-section of investment fund practices.”

Industry Awards and Recognition

Sordum Ndam and Richard W.F. Swor, attorneys at Bradley Arant Boult Cummings LLP, have been recognized as Top 30 Under 30 professionals by the Cystic Fibrosis Foundation’s Tennessee Chapter. The honor is awarded to individuals who have shown dedication to their local communities and reached noteworthy achievements in their careers.

Ms. Ndam, an associate in the firm’s Economic Development and Environmental Law practice groups, is a member of the 2022 spring cohort of the Arts Board Matching for nonprofit board service experience in Nashville. Mr. Swor, an associate in the firm’s Litigation and Intellectual Property practice groups, serves on the board of the Belmont Wesley Fellowship and on the LGBT Law Executive Council of the Tennessee Bar Association.

“We are proud of Sordum and Richard for their professional and philanthropic efforts and for their recognition by such an important organization,” said Bradley Nashville Office Managing Partner Lauren B. Jacques.

Keith Hebeisen, a partner at Clifford Law Offices PC, is set to receive the Illinois Trial Lawyers Association (ITLA) Leonard M. Ring Lifetime Achievement Award. Each year, an ITLA committee selects one lawyer who has dedicated “a substantial part” of their work to the organization; Hebeisen has been an ITLA member since his induction as a lawyer in 1983. He also served as ITLA President in 2005-06, and has been a member of the ITLA Executive Committee for decades.

Mr. Hebeisen, a longtime medical malpractice attorney in Chicago, has represented clients in a wide array of industries, including but not limited to transportation, product liability and toxic torts. He is a Fellow in the International Academy of Trial Lawyers, and he additionally serves on the Board of Governors of the American Association of Justice.

Wilson Elser Moskowitz Edelman & Dicker LLP has been nominated for the Cyber Law Firm of the Year 2022 award by Advisen, a leading provider of data, media and technology solutions for the commercial property.

Every year, the award is presented to law firms and legal professionals who are deemed most influential in the cyber risk and cybersecurity industry. The winner will be announced on June 16th, 2022 at Gotham Hall in New York City.

Pro Bono and Legal Aid Efforts

Gilbert LLP, a complex dispute resolution-focused law firm in Washington D.C., has announced a new pro bono project, focused on assisting victims of this winter’s deadly tornadoes in Kentucky. The firm has partnered with Disaster Relief at Work and the town of Mayfield, Kentucky to rebuild the local park, which was heavily damaged by the weather. Gilbert will also make a significant financial contribution to ensure that the park is restored to its former condition.

“Mayfield Mayor Kathy Stewart O’Nan realized that rebuilding the park would help revitalize their town and give residents a spirit of hope going forward,” said Craig LitherlandGilbert’s Managing Partner and Chief Operating Officer.  “Our attorneys decided that we wanted to be a part of Mayfield’s rebuilding efforts, and we are pleased to have been able to help in multiple ways.”

Partnering with Lawyers for Good Government (L4GG), law firm Katten Muchin Rosenman LLP is providing pro bono legal aid for Ukrainian citizens seeking Temporary Protected Status in the United States. Participating through L4GG’s TPS Pro Bono Project for Ukraine, the firm will offer free legal assistance from volunteer attorneys, who will assist in applying for TPS and answer any legal questions necessary.

Presently, Katten is also working with ongoing pro bono partner Airlink, providing monetary assistance through donation-matching efforts. Airlink developed a response plan to assist refugees of Ukraine through the delivery of aid and the transportation of emergency response teams into neighboring countries.

The Legal Aid Service of Broward County and the Coast to Coast Legal Aid of South Florida recently honored several legal professionals for their commitment to seeking justice for the most vulnerable members in their communities. The Annual Recognition Awards, held May 2-6, 2022, aim to promote a better understanding of the law and its role in society.

2022 Award Recipients are as follows:

Copyright ©2022 National Law Forum, LLC

Top Legal Industry News for Spring 2022: Law Firm Hiring, Industry Recognition, Women in Law

We’re back with another edition of our legal industry news roundup. Read more below for the latest updates in law firm hiring and expansion, legal industry awards, and recognition of leading women in the field today.

Law Firm Hiring and Expansion

Keller and Heckman added Counsel Daniel P. McGee to the firm’s Tobacco and E-Vapor practice. Mr. McGee’s experience includes counseling companies on a broad range of complex tobacco industry and U.S. Food and Drug Administration (FDA) regulatory matters and developing strategies to help companies bring new products to market.

“Daniel’s expertise and industry perspective will be invaluable to Keller and Heckman clients who are carefully navigating the challenges and pitfalls of a highly regulated and rapidly evolving legal landscape,” said Azim Chowdhury, a Partner in the firm’s Tobacco and E-Vapor and Food and Drug practices. “In addition to expanding our tobacco and e-vapor capabilities, we are especially looking forward to utilizing Daniel’s expertise in state law compliance, particularly for clients expanding into the hemp and CBD categories.”

Richard Mann, Chair of Keller and Heckman’s Management Committee, expressed excitement over Mr. McGee’s joining the firm, saying. “The addition of Daniel to our practice demonstrates Keller and Heckman’s commitment to helping our clients understand and comply with continuously evolving regulations in this growing field.”

Mr. McGee said he’s looking forward to collaborating with the Tobacco and E-Vapor team at Keller and Heckman.

“After spending the bulk of my legal career as in-house counsel to the tobacco industry, I made a strategic decision to focus on the industry as a whole and join a law firm that is a leader in tobacco regulatory compliance and public policy initiatives.”

Norris McLaughlin, P.A. welcomed Michael J. Willner as a Member in the firm’s New York office. Mr. Willner joined the firm’s Real Estate, Finance, and Land Use Practice Group.

Mr. Willner works with individuals and entities involved with managing real estate assets, as well as condominiums and co-ops. He specializes in condominium and cooperative law, commercial and residential real estate transactions and related litigation.

Holtzman Vogel Baran Torchinksy & Josefiak PLLC opened a new office in Phoenix, Arizona. The firm held its ribbon cutting ceremony on April 26 for the office at the Esplenade with the Arizona Chamber of Commerce.

The office is led by resident Partner Christine Fort and Dallin M. Holt, Of Counsel.

“After over 20 years representing high-profile clients in all aspects of political and regulatory law, we are grateful to now open our fourth office to help support our growing roster of clients in the West,” said Managing Partner Jill Holtzman Vogel, former Chief Counsel for the RNC and a sitting member of the Virginia General Assembly. “We could have chosen anywhere to expand our reach, but Arizona and the Phoenix metro area is dynamic and fast-growing – just like our team. This is absolutely the right place for Holtzman Vogel to put down roots, and we are thrilled to open the doors and get started.”

Goldberg Segalla added Ian G. Zolty to the firm’s Workers’ Compensation group in Princeton, N.J.

Mr. Zolty has experience counseling and defending employers, insurance carriers, and third-party administrators in workers’ compensation matters throughout New Jersey, including hospitals, insurance companies and school boards, among others.

Legal Industry Recognition

City & State New York named three shareholders at Greenberg Traurig, LLP to its 2022 Energy & Environment Power 100 listSteven C. RussoDoreen U. Saia, and Zackary D. Knaub. The recognition spotlights significant legal professionals in the New York area that are “reshaping the energy industry – and rescuing our environment.”

Mr. Russo is the co-chair of the firm’s Environmental Practice, focusing his practice on environmental law, the National Environmental Policy Act, the State Environmental Quality Review Act, and more. Ms. Saia is the chair of the Albany Office’s Energy & Natural Resources Practice, where she focuses her efforts on supporting national and international electricity corporations and aiding in related financial transactions. Mr. Knaub is a shareholder in both the Environmental and the Government Law & Policy groups, practicing specifically in energy and environmental legal and government affairs matters, including litigation, dispute resolution, government procurement, and regulatory matters.

Tammie Alexander, chair of the Business Department at Steptoe & Johnson PLLC, is a 2022 Bar Foundation Fellow, appointed by the West Virginia Bar Foundation Board of Directors.  Recognizing lawyers and judges in West Virginia with noteworthy dedication to the practice of law, the Bar Foundation has nominated only 450 out of 6,000 eligible individuals since 1999. Since the program’s inception, 22 Steptoe & Johnson attorneys have been selected as fellows.

Ms. Alexander, located in the firm’s Morgantown office, focuses her practice on an array of topics, including banking, real estate, commercial transactions, title insurance, and construction matters. She primarily assists with large scale projects that involve multiple property owners, governmental agencies, and financial investors.

The South Carolina School of Law provided the Platinum Compleat Lawyer Award, the school’s highest alumni honor, to Erna Womble, retired litigation partner at Womble Bond Dickinson (US) LLP. Established in 1992, the Compleat Lawyer Awards are meant to recognize alumni for notable professional, civil, and legal accomplishments. Recipients are members of the field who exemplify professional competence, ethics, and integrity.

Erna Womble, who graduated from the University of South Carolina School of Law in 1986, joined Womble Bond Dickinson in 1987. Today, she serves as the Co-President of Clearly Bespoke Strategies, Inc., a strategic advising company. Ms. Womble said of the award: “I am profoundly honored by the award from the law school which began my career as a lawyer-in-training. One of my excellent professors often admonished that when lawyers cease to learn, they cease to be good lawyers. More than three decades later, I’m still a lawyer-in-training. I am forever grateful to my beloved firm which afforded me the singular privilege of raising children whilst working with scions of industry and holders of the public trust in serving some of the firm’s best clients.”

Women in the Legal Industry

The Los Angeles Business Journal announced their “Women of Influence: Attorneys,” list which included Stubbs, Alderton & Markiles’ Heather Antoine. The list highlighted lawyers working for large businesses in legal areas such as data protection and intellectual property law.

Heather Antoine focuses her law firm practice on corporate property and data protection as Chair of the firm’s Trademark & Brand Protection practice, and Co-Chair of the Privacy & Data Security practice group. Some of her credits include features in the Los Angeles Times and CNBC.

Robinson & Cole LLP voted partner Britt-Marie K. Cole-Johnson to join the firm’s Managing Committee, allowing her to participate in the firm’s policy and practice strategic development. This comes after a series of noteworthy recognitions in the legal field: Cole-Johnson was recently presented with the Distinguished Leader Award by the Connecticut Law Tribune’s Connecticut Legal Awards, and she was additionally selected as an honoree for The 100 Women of Color Gala & Awards.

“[Ms. Cole-Johnson] is well-known for her talents as a legal advisor but also for her deep commitment to community organizations. She joined the firm thirteen years ago after law school and has been a true and constant champion for equitable and inclusive business practices within the firm, with her clients, and within the community. I look forward to her bringing that leadership and perspective to our Managing Committee,” said Robinson & Cole colleague Rhonda J. Tobin.

The accolades followed a recent appointment by Connecticut Governor Ned Lamont for the Connecticut Paid Leave Authority board.

Romer Debbas, LLP formed an all-female, diverse Agency Lending & Affordable Housing Department, focusing on representation in the property market. Partner Carmen I. Pagan, and Associates Catherine M. Azevedo and Pamela U. Norbert lead the new team with years of legal knowledge in real estate financing, commercial property law and lending service providers.

The new department expanded the firm’s practice areas in bankruptcy, corporate and business law, immigration, litigation, taxation and trusts and estate law.

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

Copyright ©2022 National Law Forum, LLC

Banking Regulators Publish Proposed Rule to Update Community Reinvestment Act Regulations

On May 5, 2022, the Office of the Comptroller of the Currency, the Board of Governors of the Federal Reserve System, and the Federal Deposit Insurance Corporation (collectively the agencies) issued a joint notice of proposed rulemaking (the Proposed CRA Rule) that proposes changes to the way the agencies evaluate a bank’s performance under the Community Reinvestment Act (CRA). The team at Bradley is conducting an in-depth review of the Proposed CRA Rule and expects to release a detailed blog post on the significant number of proposed changes to the CRA regulations in the coming days. Below are highlights of a few of the changes the agencies seek to make through the Proposed CRA Rule.

If implemented as written, the Proposed CRA Rule would:

  • Update the CRA evaluation framework, with performance standards tailored to a bank’s size and business model
  • Create four new performance tests to evaluate large bank CRA performance: the Retail Lending Test, Retail Services and Products Test, Community Development Financing Test, and Community Development Services Test
  • Establish specific performance tests for small and intermediate-sized banks
  • Update the requirements for the delineation of assessment areas
  • Create updated record-keeping, data collection, reporting, and disclosure requirements for large banks

These highlights are only a partial selection of the changes proposed by the agencies. Stay tuned for a more expansive description of the details of the Proposed CRA Rule.

The agencies are accepting comments on the Proposed CRA Rule through August 5, 2022. If your organization is considering submitting a public comment on the proposed changes to the CRA regulations, we suggest that you begin reviewing the Proposed CRA Rule soon.

© 2022 Bradley Arant Boult Cummings LLP
For more articles about banking regulations, visit the NLR Financial, Securities & Banking section.

Episode 2: The Importance of Data in Legal Business and Legal Marketing with Laura Leopard of Leopard Solutions [PODCAST]

Rachel and Jessica speak with Laura Leopard, the Founder and CEO of Leopard Solutions: a service that provides law firms with data to improve hiring and marketing for the business of law.

Be sure to take the Women Leaving Law Survey HERE and sign-up for the Women Leaving Law webinar on June 2, 2022 to hear the results of their survey.

We’ve included a transcript of our conversation below, transcribed by artificial intelligence. The transcript has been lightly edited for style, clarity, and readability.

INTRO  00:00

Well, hello, and welcome to Legal News Reach the official podcast for the National Law Review. Stay tuned for a discussion on the latest trends, illegal marketing, SEO, law firm best practices, and more.

Rachel  00:15

My name is Rachel,

Jessica  00:16

And my name is Jessica.

Rachel  00:18

And we’re the co-hosts for the podcast. Today we’re speaking with Laura Leopard Founder and CEO of Leopard Solutions. Laura, would you like to tell our listeners a little bit about yourself and your organization?

Laura Leopard  00:28

Of course, of course, we are a legal intelligence company that monitors law firms and attorneys. And we have been doing it for nearly 20 years. And we have grown from a simple attorney list to a detailed current and historical account of attorneys and their movements. And of course, we now offer competitive and business intelligence for law firms and the market in general. And I have been at the helm for nearly 20 years.

Rachel  01:02

We’re excited to get your insight into some of those more data-driven trends here in the industry. So the first thing that we want to focus on is the importance of data and legal marketing and legal business. One of the things that I hear pretty often is that law firms are data-rich and information poor. So can you explain a little bit about why that is and how law firms can solve for that problem?

Laura Leopard  01:26

Well, I think that was more generally true in the past. But today, many law firms are correcting that issue, because they’re hiring intelligence professionals to come in and help them mind and understand their own data. The other side of the coin is gathering external data on their competitors so that they can benchmark their own shortcomings and successes properly. And that’s where we come in. We measure law firms across the board, and we deliver those benchmarks that they need. Well, several years ago now, we had prepared a detailed report on a law firm and the top 200, about their ROI on lateral hiring and entry-level hiring. And we showed it to you know, prospective law firm. And we offered to write one for their firm, and then also a list of their competitors, you know, of their choice. And their response was, “this is very interesting, but I’m not sure what we could do with it.” And it just proved to me at that time that firms and leopard both needed to do a better job of explaining the value of the data, and how it could be used. So we developed firm scape, which is our competitive intelligence platform. And it’s filled with great data. And people were very excited to see it. But then again, only people who could readily understand what it offered, really benefited from it in really meaningful ways. So when we wrote our Business Intelligence platform, we wanted to just carefully lay out what everything meant, in clear, concise terms, so that meaningful measurement would be readily understood. You know, everyone gets very excited about data. You know, “big data, big data, data-data-data.” But not everybody understands the application of that data, what that data could mean. And that’s where we have hoped to sort of democratize data in a sense of laying it out in a way that anybody can understand it, not just data people.

Rachel  03:36

Yeah, I think just being empowered to look at it is also really great. Because I think some people can get a little intimidated by data like, “Oh, it’s just a lot of numbers,” like what the numbers mean. So one of the trends that we’ve seen, and that we’ve talked about recently is women leaving the legal industry and what that means for the profession. We published a Q&A that you did with Stefanie Marrone, about this topic. We’ve had her on the podcast before; I was curious if you could dive into this trend and talk about why this is happening and how law firms can respond to it?

Laura Leopard  04:07

So we did a survey, and it’s still in progress. We’ve had about 170 responses so far. And I have to tell you, it was incredibly depressing to read the comments and the answers that they had about why they left their top 200 law firm. And a lot of it was much of what you might suspect, you know, lack of opportunity, lack of mentorship, a feeling of not being included, you know, in the group and just really lack of opportunity stood out, you know, a great deal. So we decided, well, we can’t just we can’t just, you know, do a report. We’re gonna do a presentation in May about this at the Art conference. We really wanted to dig in deeper. So we’ve been doing interviews with women who have succeeded in the top 200 Who are partners at their firm, and they’re leading women’s initiatives, and they’re doing some really great things. And we’re learning a lot in the whole process, I didn’t want to just say, here’s a big problem, you should fix it. It’s like, Here are ideas about how you can fix it. And here are examples of where those ideas are actually succeeding in top 200 law firms. But I think the really important thing that we took away after reading a lot of this was these same problems exist for attorneys who are also underrepresented, and from who are ethnically diverse. And there are also, you know, white men at the firms that have issues because they have a family members who is ill, and they have to step away. And there’s lots of there’s, there’s lots of problems here. But there are ways to fix them. And that’s what we’re working on. Right now. We are doing some great interviews, we’re coming away with some really positive ideas. And we have some firms that are really doing some great work. And we want to share that with everyone. This is not a problem that cannot be fixed. This is a problem that can be fixed, if one wishes to fix it, and everyone is determined to see it through. And for us, it’s really important to talk about this topic, we are a woman-owned business. I’m a woman entrepreneur, we have all experienced, you know, sexism, we have all experienced some lack of opportunity in our lives. And this is really important for us to start this conversation again, or remind people this conversation needs to be ongoing and continuing. So after our presentation, we’re going to we’re going to do a webinar at leopard, we’re going to invite some great folks to speak at that webinar, we’re also going to do a full white paper. But this is one of one of something that’s really, really important to us. And I really hope it can open a lot of eyes and help move the needle to helping women succeed in those top 200 firms and in law in general.

Rachel  07:13

We talked on the show before about how COVID has sort of given people the opportunity to make change that their law firm their ongoing, I think, you know, we did speak in the past year about how COVID did push women out of the workplace. But like, I think moving forward past that and not using that as like an excuse to go back to the way things were and to make long-lasting change, I think is really important. So I was curious if you could share maybe some of the solutions that you know, law firms could implement to help remedy this problem, or if that’s something that will come later with with your white paper and after your presentation?

Laura Leopard  07:48

You know, having a strong mentorship program is really important. And you can have assigned mentors, but you also have those sort of like those volunteer mentors on the side. And not just not just women mentoring women, but men also being mentors to women. The same problem exists for those who are ethnically diverse, if you have a program in place, or everyone is assigned a mentor, then you’re you’re going to help them overcome that hurdle, flex time paternity and maternity leave and not just saying we offer maternity leave, but by saying we encourage you to take maternity leave, right? If as many men took maternity leave, as women take maternity leave, it sort of removes that stigma from a woman having to take that time off, there are some really concrete things that can be done that can make a huge difference. And, you know, the women did not just leave these firms due to COVID. They left because it became untenable to stay for many different reasons. And a lot of it had to do with flexibility on the job, right? Yes, they were. Some of them were home with children. But a lot of people that answered this survey didn’t have children at home. But this entire pandemic caused people to think differently about their lives and their situations. Women are not alone in feeling this way. Right. So there are lots of young people now that are coming, you know, coming into law firms that are saying, I don’t I don’t want to work 80 hours a week. I like being home. I like having time to myself, that’s important to me. And the pandemic showed a lot of people how important that other part of your life is, right? It’s it’s a big bargain to make when you say I’m gonna work this hard for this long and I’m gonna make partner but some of the people that responded to our survey says, here’s here’s a here’s a newsflash when you make partner, that doesn’t get any better. If anything, it gets worse. worse, there are more responsibilities on top of you, you have to continue to work those crazy hours. And you have to do business development and you have administrative duties. And and and so if you are questioning, you know if this is the lifestyle for you. And I actually did have someone say that. So if you really care about having a lifestyle with your family and friends that may be this, this choice isn’t for you, I’m gonna flip it back on its head and say, Do you really want well rounded, happy, well adjusted people working for you, somebody that’s working 80 hours a week is not going to fit that bill, right? Because that’s all they do. That’s their single focus. And they’re going to burn out, and they’re going to leave you just when you need them. So taking a more holistic view, and saying, you know, and this was this was a quote, I had a partner say, I was told when I, you know asked for flex time, my partner said, I would rather have you at 50% of your normal time than many of the people that work for me at 100%. Because you do the job that I need you to do. It’s it’s time that law firms start thinking about the future, things never stay exactly the same, right? The whole hierarchy of law firms that we know now was created, what 100 years ago, when men were the only people that were lawyers, and they had wives and housekeepers and stuff at all. Right? That’s not the world we live in anymore. And we’re also beginning to question, you know, all the young people coming up are questioning everything. They’re questioning authority, they’re questioning why they have to do this and why they have to do that. And when they say, this isn’t a life, that’s for me, I don’t want to be partner. What does it do to that old model? You know, you’re there, there’s going to have to be an inflection point where they start to think about what is going to happen at their firm five years from now 10 years from now, when this generational divide, you know, really takes place. And here’s another newsflash. According to our data for the last three years ago, I think entry level hiring coming out of law school was about 5050 men and women, then the women edged out the minute, then the women rose again, there are far more women in college and far more women in law school than there are men, and they are outnumbering men being hired on that entry level position. But if those women don’t stay, and if those women leave, because you are asking, you’re creating an untenable situation for them, what’s going to happen to your partner track, then what is going to happen to that wealth of knowledge that that person brought to your firm, and she’s gonna walk away with, there’s, there’s going to be a reckoning in the industry, because times have changed, and people have changed. And it’s going to be interesting to see how it plays out. But we can see by looking in the data that they’re, they’re going to be, there’s going to be some shockwaves. And as we start, at the Women’s seminar, we’re going to be, you know, measuring all kinds of exit data and comparing it, you know, one against the other. But it’s time that firms really start to have more of a forward view about what kind of law firm they’re going to be 10 years from now, because that’s really going to impact one thing they care about most. And that’s their bottom line.

Rachel  13:46

What has been the impact that you’ve seen, like this, this lack of information?

Laura Leopard  13:54

I think we all can say, you know, pretty clearly, if you are not using data to make decisions, you’re gonna pay a price for it. You know, data improves decision making, and it can help you predict, you know, competition stresses, and then by tracking industry trends, you can begin to predict future moves a little more successfully. Of course, you have to be, you have to have really, really good data, right? If you’re using bad or incomplete data to make decisions, you might as well not use it at all. So, data quality has been very central to our business. Our data is checked and rechecked and continually updated in order to offer the best possible dataset. But I think data itself should be demystified you know, to a certain extent, by making it clear why a particular dataset matters, right? firms should care about employee turnover because it costs their bottom line and I’m not just talking about a few dollars here and there. I’m talking about Millions of dollars. And firms should care about where their competitors are opening new offices because it shows possible opportunity that they didn’t see, firms should care about who their competitors hire, to see where their next focus will be. And perhaps they should look there as well. Are, is there a competitor building up a practice that competes directly with them in their city? Are they looking at your people to possibly, you know, recruit out of them? Lack of data and insight just leaves a firm operating blindly, just by their instincts and granted, instincts are great, but they can go horribly wrong. If you look in our growth decline report now, which kind of shows that winners and losers by you know, headcount, you will see firms in the bottom of that tear that you never would have guessed would be there just a few years ago, those other firms saw an opportunity that the others didn’t, and they seized it. So data can really make or break, you know, your company, relying on your gut and anecdotal data that people bring you. It’s just not effective. I, you know, law firms love to call around and ask a recruiter. So what’s hot right now? Or what’s what’s going on right now, this was one of my favorite stories. They they talked to a recruiter, the recruiter said, Oh, the Chicago market is so hot right now. It is so hot. It’s just on fire. And I look back and I looked at our data and and like, it’s, no, it’s not, there isn’t more movement, there isn’t more job openings, that one recruiter happened to be a lot busier in Chicago than anybody else. So all of that anecdotal data like that is meaningless when you can compare that against really hard, true facts. And that’s what they really need to start doing.

Jessica  17:00

Without giving away the “secret sauce” if you will, the metrics that these firms are using for hiring specifically is that, you know, the number of job openings, like you said. I mean, what are what would you say are maybe 1-2-3 of the big numbers they’re paying attention to with hiring specifically?

Laura Leopard  17:16

Well, you know, on our platform, one of one of everyone’s favorite, you know, reports is, is that growth decline report so they can see who is who is growing quickly, and adding a lot of people to their firm. You also can see firms who who are in churn, right, they lost 100 people, they hired 100, people, and firms will use that report to find firms that it might be easier to pry people away from, right. So if you have a firm, that’s negative 15, in headcount, and people are exiting that firm like crazy, well, you have an opportunity to go pick up those people there. You also can look at our lateral reports. And you can see where the hot markets are, you can slice and dice it by practice area by specialty, you know, by far by all different kinds of metrics. You even can look at, you know, gender movement, and those who are ethnically diverse, there’s lots of different ways to look at it, but it gives you a good market view. And of course, we do have, we have a job program where we are looking at over 1000 law firms every day in real time. And I’ll tell you, you know, when the pandemic happened, we normally had like six to 7000 jobs and our job program. During the pandemic, I think in like July of 2020, that number went down to about 3000. And most of them, I don’t think were really real openings. Anyway, there were openings, they just sort of left on their website. And now we have over 12,000, approaching 13,000 openings in a program. So that will just tell you the velocity, they also can. And our job program is great for CIA too, because you can go in and see how what your competitors are looking for how they’re framing that position, like right now, we know everyone’s looking for corporate m&a people, right? How are they framing that job? How can you make yours look more attractive? What can you do to you know, sort of get an edge in that market. And there’s lots of other reports that we have that can help them gain advantage. But those are probably, you know, the top the top three, just seeing what’s going on in the market.

Jessica  19:31

With all the changes in the legal industry, I think there’s a huge focus right now, not only in just data and the services you guys offer, but also diversity in the workplace. So I would love to know–I know you mentioned a little bit of it, but being able to see you said gender maybe changes are hiring, how to make it attractive to certain diverse populations of people so that you know, the law firms represent their communities, if you will. Could you explain a little bit more of that? I would love to definitely learn more.

Laura Leopard  20:00

For years, we had been asked to have diversity information in our database. But we just thought it would be incredibly hard, we weren’t sure how we wanted to do it, it was it’s it, you know, having that kind of information in the database is a little risky. To a certain extent, you have to be really careful and really think things through. Then the summer of George Floyd happened, we were in the middle of a pandemic, things were kind of crazy. But when that happened, we all you know, on our, our, you know, our little community of folks at leopard said, we have to do something, we have to do something. So we put all of our heads together. And we said, well, here’s how we might do it. And we knew about the Mansfield rule and, you know, diversity lab who are great folks. And we knew how they handled their data. And they really, were asking for data, they really wanted law firms to be able to go in and find people that were diverse in order to bring them into the hiring game. So we took a page out of their playbook, and we said, Okay, if we put diversity in our database, we’re only going to show it to people who we think are going to use it correctly. So if a law firm is a member of the Mansfield rule, they get the diversity data, we don’t charge an extra penny for any of this, we spent months doing research on every single person in the US in our database, to see if they might be ethnically diverse. And what we did was we, we went on a probability score. So if we look at where they’re from languages, they speak committees that they belong to, like we sort of look at all of their data points, then we can come back and say, Okay, we think there was a high probability, this person could be ethnically diverse. If you are a member of the Mansfield rule, you can access and you can view those attorneys. If you’re not, then you can sign the leper diversity pledge. And with that, you are promising to use that data in the correct way, which is to include not exclude, and to really look at these people, you know, in order to bring them in front of the hiring committee of a law firm, in order to move that needle. We also put safeguards in the database in place, so that those people could never be excluded from a search, they could only be included, you can only see them when you want to find them. And we did the same thing for gender. So we moved because there were other gender issues that we wanted to recognize and acknowledge. So you have a high probability of being gender diverse or low probability of being gender diverse. So now, because because we took those steps, we are also able to report on diversity, and every single law firm in our system. And that means if you are a diverse candidate, you’re going to you’re going to be able to know, you know, or a recruiter can show you or the law firm can show you what their diversity score is, in comparison to the other law firms that they may be considering. Everyone. Everyone gets a score, everyone sees you know, how well they’re doing or how poor they’re doing. And law firms can use this in their conversations with people that they want to bring in. And let them know that they are growing diversity within their firm, you can see it in the growth decline report, you can see who’s growing in ethnic diversity numbers, who’s growing in women numbers, it’s all right there for the world to see. And we use the same scoring across the board for every firm. So it’s so it’s all equal. But that was an incredibly important thing for us to do. We spent months with, you know, all hands on deck, getting this data in, and it’s something that we continue to work on all the time. You know, there are people that we have as, as we consider sort of, we don’t have enough information to go either way. Well, we continually go back to see if there’s more information that’s available about that attorney, so we can label them properly, high or low. But being able to do that also led us fold in diversity into our leopard law firm index. So we decided that the normal way that firms are assigned, you know, a grade of excellence, where those scores coming from a once a year list, you know, are really not helpful in today’s fast paced world. We have always seen firms go out of business in the top 200 of emerging they, you know, they go away, they go under, and we wanted something that was real time that would go up as the firm was improving and if the firm Um, you know, hit a bad patch than their score would also show that we have firms in the leopard top 250 that are not in the top 200. We have, we also have firms that are in the top 200 that are not in the leopard top 250 Because our scoring scoring methods are very different. And they’re really database and one of those data points is a diversity number, how well are they doing with diversity. So it is become a part of everything that we do in almost every single report. And in our last leopard law firm index, how well a firm is doing on ethnic diversity is incredibly important. And we wanted to show that by using it as many as many different ways as possible.

Jessica  25:49

I think it’s great to have so many different options of metrics, because I think casting that wide net, as far as what you’re able to keep track of for your firm, allows you to pick up any alarm bells of things that maybe aren’t going as well, like you said of, you know, growth, maybe it’s going down in this area or what have you. So I’m curious to know what some of those alarm bells would be or like red flags in the data that maybe law firms should pay attention to or could affect their business model and moving forward for their growth?

Laura Leopard  26:22

Well, I think all those items that are in that, you know, law firm index, and the score that we give because of it. So we look at metrics that really don’t change over time in the in the sense that we do look at only one little tiny piece of the financial puzzle, which is the revenue per lawyer, but it’s scored over a five year period, because that is really there just to show Oh, it’s going up, oh, it’s going down. So that is available there, and part of that index, but we also use items, the growth decline and attorney headcount, we use the average attorney tenure increases or decreases in that RPL, as I just mentioned, and the ROI, the success and lateral recruitment, and the success and entry-level recruitment. And for the index, we only look at it in the prior 12 months. Because if you are having problems retaining people, the first year they join that firm, we see that we think that is a red flag of something going on at the firm, which is why it’s in the index, we also look at promotions to partner and we look at ethnic diversity within the firm. And one reason that we do that is that companies have said over and over again, they care about ethnic diversity, and they want to work with firms that have a good ethnic diversity number, if that’s true, and if they hold their feet to the fire, then that really must be in the index. And there are other items that we’re looking to fold into that index. But those are the ones that help give that score. There are so many other things, that ROI that I talked about, like in the index, we look at the past 12 months, but you can go back and look, look three years ago, how well did you do in your hiring three years ago? How well did you do that the year before that, because we’re talking about millions of dollars that these firms are losing because they only have a 70% retention of people that they just hired two years ago. And and that is a huge red flag that they really must pay attention to. So then the question is, you know, where’s my problem? Right? So we wrote a report in the in the BI Suite, that really helps you break it down? Is it a practice area issue? Is it a particular office that has an issue, and you can benchmark your firm against your competing firms? I think sometimes when people say, Oh, we have a 80 80% retention rate, that’s pretty good. Well, it’s good until you compare it against some of your competitors who have a much higher number. And it’s also good until you realize exactly how much that attrition is costing your firm, millions and millions of dollars. You know, I’ve also I once had a recruiter and a law firm say, they really didn’t mind the attrition because it was sort of job security for them. Because they kept busy. But really, job security for them is not just it’s making sure you have a successful hire. It’s making sure that those people are happy and they’re getting what they need, is looking to see, you know who might be on the cusp of leaving. We have something in our attorney database called the probability The move, right? So we’re looking at people that have moved in the past and similar circumstances and JD, your range, practice area and all that good stuff. So you can run it on your own firm. And you can see who has a very high probability at your firm that allows you to play defense with those people and help to see if they’re getting what they need, are they happy? Do they need to look at some new kind of schedule? Are they unhappy in their practice area, and they’re not getting an opportunity to change it, there’s a lot, a lot of things that firms can do, if they start to use that data to help see where they might have a problem. And we’ve written many reports that could help them do that, again, again, even with the law firm index, it’s not about calling out oh, this is the big winner, this is the big loser, it’s like, you might have a problem. And we’re gonna help you find where your problem is, because this report will show you where you are, you know, far beneath your competitors, this is an area that you have to look at. And that’s what it’s there for is to really help them do better. And we can show them the metrics that say, this is where you should begin looking.

Rachel  31:15

We’d spoke a little bit about at the beginning of our conversation, how law firms are starting to really start to adopt this technology to integrate more data and things like that into their business. I was curious to get your thoughts on how the legal industry has changed over the course of your career in terms of how this technology has been adopted? Have you seen like a paradigm shift in the past couple of years? Or how has that been?

Laura Leopard  31:37

They certainly have changed, but it hasn’t been a change overnight, you know, law firms, both now. And then they use several different kinds of technology for several different purposes. And, you know, data was housed in silos, you know, with multiple programs used by multiple people. And today, you see firms hiring technology teams, to better integrate and manage that data. So that’s a step in the right direction. You know, I have seen firms that have very little data about their own firm, and about, you know, their own alumni. And they’re beginning to recognize that, that puts them at a disadvantage, right. So that recognition is a huge step, and getting the task of just getting all the data in a proper form, and then the right system, that’s a really big undertaking, and only the largest firms can really, you know, kind of take those steps and hiring that technology department, you know, lucky for others, we can kind of step in and provide that market data that CEI intelligence for them. And even for the firms that have, you know, their own CI department, they still need data on their competing firms to use to create that proper analysis and benchmarking. And that’s where we step in to fill that bill. But technology has been getting much, much better in in many law firms, but not all law firms, there will always be some that are sort of lagging behind.

Rachel  33:11

I wonder, you know, when is going to be the point where these people who are lagging behind will start to realize that, you know, if if you don’t change, then you die, essentially, you know, it’s because eventually just not going to be able to keep up with everyone else around you. So I think one of the technologies that in addition to data that we’ve been hearing about is the use of artificial intelligence in you know, recruiting and and other operations. I was wondering if you could speak a little bit about like your experience in using artificial intelligence and recruiting and things like that, and how it can improve those processes.

Laura Leopard  33:46

We have a product that uses AI, that sort of analyzes a possible merger, right, so it can produce possible candidates. And then when you select one, we use all of the data from all the past mergers that we’ve seen in our database, to really say, Well, this is how we think this merger would go based on attrition rates. And then we highlight all the risks points, you know, of that particular acquisition or merger. And that’s, that’s in the BI Suite. An AI for hiring is kind of tricky. So while it sounds like you know, oh, we’re going to use AI and it’s going to eliminate bias. The problem is there will be inherent bias baked in, depending upon the data set that AI is based on. And the legal industry has historically been predominantly white and male for decades. So an AI hiring system based on that data set is going to have bias unless you work to overcome it. If you’re parsing resumes and cover letters is going to need to be trained on you know, being neutral on titles and verbiage. And you know, was key words. Now we like to look at data patterns, which can prove to be, you know, maybe even more helpful than that kind of AI. You know, there’s different processes that firms do almost without thinking, you know, firms do a lot of institutional hiring. And we can show that in data and tell that story. And these are the types of data patterns that you know, I would like to see kind of shake up that hiring model, the one that, you know, may not be serving the firm as well as they thought. But an AI for hiring has always been tricky. And we’ve, we’ve explored some of this ourselves. And then at the same time, we said, Well, wait a minute, it could very well be that the best person at the firm, the one that succeeds the most is always going to be that white male partner that came on 30 years ago. So this is something that we’re working on. And we’re working to see how we could eliminate bias in that kind of report. But it’s, it’s a tricky thing. And it’s I know, a lot of companies outside of law firms have used it. And there have been a lot of issues with using AI in that process. So it’s something you have to watch very closely.

Rachel  36:17

Yeah, I think there’s this misconception that AI is just like, you know, it’s not a person. So how can it you know, make these questionable decisions. But the problem is that, like a person has to build the AI. And it has to be based off of, you know, it has to learn these things from something else. So I can see how that would be a slippery slope. So with that in mind, like do you see…Or I guess, like what technologies do you see changing these processes moving forward? What do you expect the role of technology will be like, in the future?

Laura Leopard  36:49

There are many, there are many hiring issues. And we are working now on a really cool piece of technology. To help with one of those, you know, I talked to I talked to a lot of law firm people who have to do a lot of work, before the hiring partner sits down with the candidate. Because so often that hire can be blown if that hiring partner doesn’t know what to say that I care. So much about lateral hiring is about convincing that person to join your firm. And competition right now is at an all-time high. So what sets your firm apart? You know, why would this top-notch corporate m&a attorney, choose your firm over the five others that he’s looking at, you really have to tell them and you can’t just say, Oh, we’re a great firm with great people and a great culture, you really have to say, how your firm has, you know, grown over your competitors. Let’s say you’re interviewing a woman who’s an IP associate and wants to make partner, well let her know how many women IP partners you have in your firm in relation to her current firm. And if that number isn’t as great, maybe the percentage of growth is great, right? Just convince them that your firm is the best choice by using data to confirm that back. There are always good stories that can be told with data. And we are trying to help firms uncover those and help that hiring partner convey those really positive things. And right now, you can do that. But you’d have to run several reports. And then you’d have to write the analysis and then hand it to the to the hiring partner. So we are developing a tool called the Coach’s Corner, that’s going to do just that. And it’s going to analyze the firm that seeking to hire against the firm with the attorney currently works. And it’s going to map out all the positives that we have in the data for your firm. And that is a really important part of the conversation. Right now the competition is so tight, and it’s so everything is moving so quickly, that they all need, you know, as as much help as they can to paint their firm in the right light if they’re gonna get that higher. So there’s a lot of power on the job seeker right now, especially in certain practice areas and in certain areas of the country. And they want to make sure that they’re making the right choice. All that there’s a lot of strange decisions going on out there. There’s, there’s a race for, you know, who’s getting paid the most. But if you’re all paying the most, how do you decide between one and the other, you have to look at all of that other data to say overall, our firm would be the better choice for you because of a B, C, D, and E. And that’s what we’re trying to do is give them the data for all of those points. So you may see people making decisions based on all of those metrics, and all of those things that that firm offers, as opposed to just monetary decisions, right? Am I going to be happy where I go? Am I going to be able to live the kind of life that I want to leave, all of that’s going to happen and that those firms that are doing that are going to change the dynamic of the rest. So it’s not all about starting salary, and it’s not all about the PPP. There’s a lot more in the mix now. And there may be a reshuffling of firms, as some firms begin to realize they need to change how they do business in order to have, you know, people that stay with them and people who want to join them.

Rachel  40:48

There will be an interesting thing to watch here in the coming years, especially as your company continues to roll out these new tools.

Laura Leopard  40:54

As a group as a women working in law firms, as men working in law firms, we have to look and demand and ask for that change to happen.

Rachel  41:04

Excellent. Well, that’s why we’re so excited to have you on as a guest today to get these ideas and these topics out there! So special. Thanks to you, Laura, for joining us today. We really appreciate it.

OUTRO  41:19

Thank you for listening to The National Law Review’s Legal News Reach podcast. Be sure to follow us on Apple podcasts, Spotify, wherever you get your podcasts for more episodes for the latest legal news. interested in publishing and advertising with us visit WWW dot NAT law review.com. We’ll be back soon with our next episode.

Copyright ©2022 National Law Forum, LLC
For more episodes of Legal News Reach, please visit the podcast page.

A Simple Guide to Exactech Hip, Knee and Ankle Replacement Lawsuits and Settlements

How Do I Know If I Have a Exactech Claim?

STEP 1: Obtain Medical Records

We have written extensively about the different types of defects in certain Exactech products, and the various causes of those defects, particularly to the polyethylene (plastic) liners of those products. Regardless of whether you are dealing with a hip, knee or ankle replacement, the first step in figuring out whether you have a potential claim is to confirm which type of Exactech product (and the components of that product) that you had implanted.

There is a simple way to do that. Whenever doctors use a medical implant or device, like a hip, knee or ankle implant, it comes in its own shiny new box (as you can imagine, a lot of marketing goes into the packaging of these extremely expensive products).

The box has stickers on it that specifically identify everything about the product (manufacturer, model, lot number, etc.). The surgeon takes the sticker off of the box and attaches it to the Operative Report. Consisting of only a few pages, the Operative Report is a basic summary of your joint replacement operation. The stickers are usually attached to the last page of the Operative Report. You can go to your medical provider and ask for your Operative Report (this should only take a couple of days to receive), or you can retain an attorney to formally request your operative report (this will take a few weeks).

Helpful hint: medical providers are only responsible for keeping records for a certain amount of time. If your operation happened a relatively long time ago (longer than seven years), it will be much more difficult to get the records.

STEP 2: Identify the Exactech Implant

Now that you have a copy of your Operative Report with the identifying stickers, you need to compare your Exactech implant to a list of Exactech products that are recalled, alleged to be defective or are otherwise part of the pending nationwide litigations.

Again, some of the recalled product liners are subject to premature deterioration and failure because the packaging exposed them to oxygen, and some of the (hip) liners just did not last as long as they should have. As these products have been used in tens of thousands of procedures over many years, this obviously caused, and continues to cause, serious problems in patients – including osteolysis, or bone loss.

Exactech has a website that allows you to search your implant in its recalled products list. The website also contains the recall and warning letters that should have been sent to your doctors. Finally, the Exactech website encourages patients to submit claims for defective implants through a company hired by Exactech, named Broadspire.

STEP 3: Is Revision Necessary?

Now that you have identified your Exactech implant as one of the products that are alleged to be defective and are part of the pending nationwide litigations, you have to be able to show you suffered damages that require a revision of the implant. In this case, “revision” basically means that a doctor has found it necessary to go in and try to fix or replace part or all of your defective Exactech implant.

Unfortunately, every surgical procedure has a risk of complications. Just experiencing an injury, such as an infection at the surgical site, is not uncommon and does not always mean that your injuries are attributable to a defective Exactech product. So, you will also have to be able to show that the failure of your implant was caused by the premature breakdown and failure of the plastic liner of the implant.

STEP 4: Contact an Attorney

Now that you have determined that you have a defective Exactech implant that required (or will require) revision, you will want to get some legal advice. Two things to keep in mind: 1) make sure to talk to a law firm that specializes in Exactech hip, knee and ankle litigation; and 2) do not wait – there are different deadlines and statutes of limitations that apply to your claim. Do your homework and research the firm you will be working with – there is a good chance it will not be the same lawyer that handled your last speeding ticket, or one of the 800 numbers that flash across your television screen late at night. Put this on the top of your pile of things to do. Only bad things can happen if you wait too long to pursue a claim.

COPYRIGHT © 2022, STARK & STARK
For more about personal injury cases, visit the NLR Litigation section.

10 Law Firm Newsletter Ideas to Attract Clients

How to Start and Grow a Newsletter for a Law Firm

Email marketing often gets a bad rap. After all, we all know the annoyance of getting spam and promotional emails. Much of this content just ends up deep in our inbox. The same can happen to newsletters… especially boring ones.

Don’t let your law firm email newsletter fall to this fate. In this guide, I’ll talk about how to start a successful newsletter and use it to attract clients.

Plus, you’ll get 10 content ideas for creating an engaging newsletter.

Why start a newsletter?

A study conducted by Law Technology Today found that 86% of law firms fail to collect an email address when they acquire a new lead. Starting an email newsletter is one way to prioritize growing your email list and taking down information to nurture users into potential clients.

With this in mind, an email newsletter is about more than just sending a generic email every month; instead, it can be an effective tool for drumming up new business for your law firm. It also gives you a medium through which you can share firm news, build trust with your subscribers, and establish your law firm’s brand.

Benefits of starting a law firm newsletter

Email newsletter marketing offers many benefits to your law firm. Beyond simply sending updates to your email list, an email newsletter can bring the following perks:

  • Connection – A law firm newsletter builds connection with your new and potential clients by telling them more about your firm and offering a way for subscribers to respond directly to your email.
  • Traffic – An effective newsletter can work to drive more users to your website and social media pages.
  • Sales – Newsletters offer a convenient way for subscribers to reach out to your firm, increasing the likelihood that they will turn into new clients.
  • Community – Sending a consistent newsletter can help drive users to your social media accounts, therefore growing your community and visibility on social.
  • Reputation Management – Email provides an avenue for you to build rapport with your audience, get ahead of bad PR, and ultimately build trust in your firm.

How to write a law firm email newsletter

Before you sit down and start typing away at your newsletter, you’ll want to understand the fundamentals of what it takes to write and market a great newsletter. Here’s how to get started.

Define your target audience

Generalism is the killer of many marketing campaigns. If you don’t define your target audience – that is, the interests and persona of the people you are trying to reach – you risk offering the wrong type of content to the wrong audience. And disjointed messaging won’t bring the client-generating results that you want.

Instead, you’ll want to brainstorm a few factors to ensure you are writing for your ideal audience. These factors include:

  • What types of legal services your audience is interested in
  • What legal issues they are struggling with most
  • What questions they’re likely to have about the legal process
  • What their goals are when it comes to hiring a lawyer
  • What interests they have in understanding law, the legal system, etc.

If you’ve been in your field for a while, you’ll likely have an idea of how to answer these questions. If you’re more green, you can always ask your network, social media followers, and existing clients some of these questions to better understand their interests.

Grow your email list

Of course, before you can see results from an email newsletter you’ll need an audience to send it to! Now, building an email list organically takes time, but it’s worth it to build a list of subscribers who are actually interested in your content.

Never buy email subscribers, as these will likely be dead accounts or otherwise users who will never work with you. Instead, invest in blogging and website marketing in order to grow your community organically.

Here are some tips for growing your law firm email list:

  1. Embed a signup form on your website in order to capture users’ contact information (at the very least, their email address and name)
  2. Publish helpful blog content to drive organic search engine traffic and traffic from social media
  3. Offer downloadable content – like PDFs, infographics, guides, etc. – behind a sign-up wall to encourage users to subscribe
  4. Use email marketing software like Mailchimp to add email list signup forms to various pages or articles on your website
  5. Offer value with impactful content. If you’re able to demonstrate that you are an authority in your industry, people will be excited to subscribe for future updates

Plan your content

With your target audience in mind, you can begin to plan your newsletter content. I highly recommend choosing a “theme” and then building out a newsletter based on that theme.

For example, one month you may decide to talk about common mistakes people make in hiring a lawyer. So, you write four newsletters over the course of the month – each one addressing a different ‘mistake’ people make and how to avoid it.

You can use a notebook, Google Doc, or spreadsheet to plan your content and keep organized. Try to plan at least a month in advance so you are prepared with content ideas ahead of time. You can even write your content and schedule the delivery weeks or months out.

Write your newsletter

Whether you consider yourself a good writer or not, drafting a great email newsletter is relatively simple. There are just a few tips to keep in mind to help you produce engaging content every time:

  • Write an eye-catching subject line. Rather than simply say “newsletter”, you can include the actual subject of your email (e.g. ‘Don’t make this mistake…) to entice subscribers to click
  • Make it “scannable”. Instead of typing a long wall of text, break your email content into shorter paragraphs, sentences, or bulleted lists. This makes it easier for readers to ‘scan’ your content and find the content they are interested in.
  • ‘Close the loop’. This is a concept I got from an email copywriter. Open your email with a ‘hook’ – could be a tip, a question, or an intro to a story – and then resolve the hook at the end of your email. For example, you could open with “Many clients make a huge mistake in hiring a lawyer…” and then at the end of the email you say “Don’t want to make that mistake? Here’s how to avoid it…”. This keeps readers interested from start to finish.
  • Add a link. Include links to related blog posts, social media posts, videos, etc. to drive traffic to your other channels.
  • Include a call to action. Either encourage readers to respond to a question (e.g. “What do you think about…?”), contact you directly (e.g. “Respond now to schedule a consultation”), or visit your other platforms (e.g. “Visit our website to learn more about…”).

Use an email platform

Email marketing software like Mailchimp and ConvertKit makes it easy to write, format, schedule, and deliver your newsletter content. There’s no need to create a long CC chain to your subscribers and send your email manually. These tools allow you to send your newsletter to an entire list, schedule the delivery date, add media, and more.

Preview and test your newsletter

It’s always a good idea to preview your newsletter to check if you made any mistakes. Further, send yourself a test email to make sure there are no delivery issues. You can then also see how your newsletter looks on different devices and decide if you need to change up your content.

Send it out

Once your email template is complete, give it a final once-over for any selling issues or mistakes. When you’ve double-checked your content, you’re ready to send it to your email list.

Track results

Most email marketing tools will also provide analytics regarding your email open rate, subscriber growth, or unsubscribe rate. These metrics will help you determine the success of your newsletter and make adjustments over time. For example, if you see that your open rate is low, that may mean you need more engaging subject lines. Or, if there have been a lot of unsubscribes, this may mean users aren’t enjoying your content.

Try these creative law firm newsletter ideas

Now, the funnest part of publishing an email newsletter is the amount of creativity there is in thinking up content ideas. I strongly encourage you to be adventurous with your newsletter and not be afraid of veering from the same old script.

Here are some creative law firm newsletter ideas for you to consider:

1. Topic series

Produce a series of newsletters that cover a primary topic. For example, you can commit the month of November to talk about “DUI FYIs”, in which you reveal helpful tips in addressing a DUI over a series of emails. This approach gets subscribers looking forward to your upcoming emails and makes it easier for you to plan your content.

2. Q&A

The legal process can be super confusing for clients and the general public. With this idea, you can address a single question and answer via email over the course of the campaign. Again, this can encourage users to look forward to your upcoming Q&A sessions.

3. Interviews

Know an industry expert who has a perspective to share? Highlight this individual and provide value to your audience by including an interview in your newsletter. You can do this several times in your email marketing strategy. And, it can get subscribers to ask questions to your email campaign, which is great for deliverability and engagement.

4. Email course

Some topics warrant a deeper explanation. For subscribers wanting to learn more about the legal process or a particular topic, you can offer a multi-step email course. They will have to open each email to get new nuggets of information and to complete the course.

5. Videos

It’s no secret that today’s users love video content. Including videos in your emails is a good way to improve open rates and direct users to your video (typically, your YouTube channel or website). Be sure to include “Video:” in your email subject line to encourage subscribers to one your email.

6. Templates

Many email marketing platforms offer professional-looking email templates you can use so you don’t have to design your newsletter from scratch. A great-looking email could encourage users to engage with your content. Typically, these templates include social media icons as well, which can direct more traffic to these platforms. You can update colors, fonts, logos, images, and more.

7. ‘Get to know me’

When new subscribers join your newsletter, they may not know much about you. A “Get to know me” email can help introduce them to you, your interests, and your approach to law. Keep it fun by sharing interesting facts about yourself, likes and dislikes, hobbies, or whatever you think will be exciting to your audience.

8. Meet the team

Similarly, you can run a “Meet the team” series to introduce your entire staff to your list. This is a great way to build trust and provide that added human connection. If you have a large staff, consider breaking this out into several emails for even more content.

9. Storytime

Email subscribers love a good story. Now, while you don’t want to share any confidential information about your cases, you could share lessons learned from the industry, funny office stories, or a personal life story. You can even slowly tell the story over a course of emails to keep readers interested.

10. In the news

We’ve all come across hot news stories where celebrities land themselves in legal trouble or a large company is going under. Turn trending topics into legal lessons, offer your own unique spin, and make the legal process more relatable to your readers. We are all talking about these pop culture stories anyway, might as well use it for great email content!

Email newsletters build connection with your audience

An email newsletter is one of the best ways to build trust and connection with potential and existing clients. Remember, subscribers care less about “marketing content” and more about the value your firm can provide, the stories you tell, and how you can help them navigate their legal woes.

So, keep things fun and interesting with creative email content. Try different media, switch up topics, and, above all, stay consistent so you nurture a strong, engaged audience.

Copyright 2022 © Hennessey Digital

Article By Jason Hennessey with Hennessey Digital.

For more articles about law firm management, please visit the NLR Business of Law section.

A Lawyer’s Guide to Integrated Marketing

Like many lawyers, I did not learn about marketing in law school. I knew nothing about communications or media relations before law school, either. When I graduated and began practicing at a boutique matrimonial law firm, there was no internal or external marketing resource, and no direct conversations or plans about public relations or branding. One founding partner talked about the importance of reputation for connecting with potential clients and how his connections in the legal community resulted in many referrals, but he never mentioned marketing.

Yet, as I tagged along to bar association meetings, drafted articles that the partner published in a legal journal, and received encouragement to network at Inns of Court sessions, I saw this side of legal practice come to light. We didn’t call it marketing, or PR, and it was well before social media, but I understood that the partner was intentionally marketing the practice and generating awareness of the firm’s experience — an effort that resulted in new client engagements.

When I decided to leave law after a few years, I enrolled in a New York University course about marketing for professional services. As luck would have it, the instructor was Deborah Brightman Farone, an extraordinary legal marketer then and now — she was inducted into the Legal Marketing Association’s Hall of Fame at the organization’s 2022 annual conference. Deborah introduced me to the field of law firm marketing, and since then, I have worked with hundreds of lawyers and professional marketers on business development and integrated marketing plans, and have helped them make marketing part of their daily practice.

Most lawyers need to understand what this marketing thing is all about. I see firsthand their appreciation for the importance of building client relationships, cross-selling expertise within the firm, and networking. However, I don’t see an understanding of the terms and tactics of legal marketing as often. I think that with so much to learn in law school, there just isn’t time to learn the business side of law. Once a lawyer is practicing law, there may be little direction about how to reach prospects and referral sources, stand apart from other lawyers doing similar work, and find time to “market oneself.”

I frequently read articles where lawyers describe their routes to becoming partner or managing a practice or office. The words “PR” or “marketing” may not appear in their answers, but as someone who has advised lawyers about practice growth for more than 20 years, I know that positioning themselves as knowledge leaders played a role in the success of their relationship-building and practice development. And that, of course, is marketing.

This article will take you through five steps I always examine with lawyers who are just getting started with marketing, or participating in a firmwide marketing program.

  1. Acknowledge the Need for Education

Earning a JD and passing the bar exam prepare a lawyer for the practice of law, but not the business of law. My colleague Vivian Hood recently wrote, “Law schools focus on teaching the art of law, and not so much on the art of connections.” Courses about marketing, public relations, or social media are not part of the law school curriculum. Rather, law school teaches students to read cases and apply precedent, analyze facts and frame arguments, and spot the real issues and see the red herrings. Likewise, legal writing courses, moot court competitions, internships, and other hands-on work prepare them for practicing law. Their understanding of marketing may extend to billboards they see on their way to work, law firm ads in legal journals, or networking events with bar associations.

Lawyers know how to practice law, but do not know what marketing is or how it supports business development and revenue. Education is the first step to heightening awareness. On many occasions, I have explained how PR works so lawyers understand the events that result in being quoted in a trade publication, or the behind-the-scenes steps that go into earning a speaking engagement at an industry event.

  1. Discuss Perceptions of Marketing

The only way to know how an attorney perceives marketing is to ask, and then provide guidance about worthwhile and suitable marketing efforts.

Lawyers often shy away from marketing because they associate it with sales. My colleague Glennie Green explains, “Most attorneys envision some sort of sales when the idea of marketing and business development comes up. They see car salespeople, or aggressive pitches for timeshares. But that is the wrong mindset. Business development is not sales. Business development is cultivating and nurturing relationships.”

Relationships can be built in many ways. A common misconception is that marketing success is based on the ability to be a natural rainmaker who can walk into any room and instantly make connections for the firm. That belief can create unrealistic expectations and undue stress, because rainmakers are few and far between. Relationships can be built and nurtured without that unique rainmaker quality. Everyone adapts to situations differently ­— some of us are introverts, others extroverts, or a combination of traits.

  1. Assess the Impact of Previous Experiences

Lawyers may base their perceptions of marketing on prior experiences. Lawyers have told me, “I wrote many articles in the past, and they never amounted to any new business.”

“I traveled to speak at a conference, and not a single attendee turned out to be a new client.”

“I did an interview with a reporter who misquoted me.”

“I have a LinkedIn profile, but I’m not interested in doing anything with it; it’s just like Facebook.”

Many people fear failure, and many transactional lawyers and litigators are driven by winning. It is no surprise, then, that lawyers question the value of something that has not been a winner in the past. Understanding and acknowledging these hesitations can lead to productive discussions about marketing and, more specifically, about techniques that may be better suited for the lawyer.

  1. Discuss the Time Commitment

The billable-hour model of legal practice can affect a lawyer’s availability to market their practice. Too many business-driving commitments will inevitably frustrate a lawyer and diminish the success of marketing. It’s better to work with a distinct set of action items that can take only a few minutes a day rather than many hours each week.

Glennie Green has helped lawyers identify their advocates — assistants, paralegals, the firm’s librarians; people they can partner with to achieve their action items. One managing partner with a busy practice serves as an example of this effort. “He has made a commitment to conduct a certain number of meetings a month with current and potential referral sources,” she says. “He enlists a paralegal in the office to help schedule those meetings, as well as maintain his ‘marketing’ calendar. This allows him to keep his focus on his practice and manage the firm. He regularly checks his calendar for new appointments, and he says he looks forward to seeing whom he will meet with next. Once he realized that he didn’t have to do it all and enlisted some help, his plan and marketing goals became not only manageable but systematic.”

  1. Find the Comfort Zone

Marketing efforts must be tailored to a lawyer’s personality and interests. Everyone has a different comfort level. Some lawyers love to speak at conferences, and others would rather research a case and write an analysis for a journal. One lawyer may already enjoy engaging on social media, and another may feel crushed for time but would be amenable to doing a 30-minute interview with a reporter. Perhaps a lawyer may enjoy participating in an association’s events or committees. Green explains, “Knowing a lawyer’s areas of confidence, and recognizing what causes any discomfort, is crucial to establish the right marketing plan with the flexibility to change direction as needed.”

The avenues for marketing include website content and branding, social media posts and engagement, media relations, published quotes and articles, rankings submissions and awards, conferences and speaking opportunities, networking, events, and more. The questions and conversations I’ve provided lead to more precise choices of marketing tactics, as well as more informed expectations of results. An integrated marketing and business development program offers lawyers a selection of tactics, with deliberate matching to their preferences and the flexibility to change as needed.

© Copyright 2008-2022, Jaffe Associates

How Businesses Can Use LinkedIn Company Newsletters in Their Marketing Efforts

LinkedIn has added what I think is the most helpful tool in a long time for businesses to engage with and bring value to their followers – the ability for LinkedIn Company Pages to publish email newsletters right through LinkedIn.

This underscores the importance of having a company page and how it can be used as a content hub for marketing and recruiting your business.

Linked Company Page newsletters are available to businesses with more than 150 followers that actively maintain their LinkedIn presences.

You can create a LinkedIn Company Page newsletter in three simple steps:

  1. Create: Start writing an article on and select “Create a Newsletter.” Give it a title, add a header image (it prompts you with the dimensions) and cut and paste your text. You can add hyperlinks and images for each article too.
  2. Publish: When you publish your newsletter it will post to your feed and LinkedIn will notify your followers. They can opt in to receive email and in-platform notifications when you publish new content.
  3. Review performance: View the analytics of each newsletter sent out and see the number of subscribers. The number increases pretty quickly which is awesome. And it’s opt in so you don’t have to worry about GDPR rules.

There’s a lot of opportunity here because it is a new feature (for companies – it’s been available to individuals for a short time) and most companies don’t know about it yet (and certainly aren’t using it yet), so being an early adopter is to your benefit.

Even if you send out an email newsletter, you should still utilize the LinkedIn platform to send out a newsletter because you will reach a different audience and cast a wider net for your content.

In addition, people are opting into this newsletter, so it’s not building an audience from scratch, and if you haven’t ever sent out an email newsletter, this is a great way to start. If email marketing programs and CRM management tools overwhelm you, this is a great way to test out the waters.

It’s also really easy to repurpose content you already have. I would include hyperlinks to your website or blog with the full text (in order to keep the newsletter short and to drive traffic to your site).

You can embed links from YouTube into the newsletter to play. Check out my LinkedIn newsletter to see how it looks.

Here are some content ideas for what you can include in your LinkedIn Company Page Newsletter:

  • Article snippets with links to your latest blog posts or client alerts
  • Links to past webinars (provide a synopsis too)
  • Links to recent podcasts and videos (with shownotes)
  • Recent case studies
  • Q&As with your employees
  • Highlights of your community service/pro bono work
  • Announcements of your recent hires
  • Recent press coverage (this would be the only place where I would recommend including self-promotional items in the newsletter – the rest of it should be client-focused)
  • Upcoming events/webinars – this is a great way to promote them
  • Open jobs – why not promote them through this newsletter? It’s a competitive job market
  • News about your diversity and women’s initiatives programs – clients care a lot about this

Check out this new feature and let me know what you think of it. With nearly 800 million people on LinkedIn and the fact that your competitors are very likely not using it yet, it’s at least worth trying out.

Copyright © 2022, Stefanie M. Marrone. All Rights Reserved.

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.

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