Mind Your Business Archives - Home Safety Tech Pros

The End of Reality? How to combat deepfakes in our legal system

homesafetytechpros — Fri, 21 Mar 2025 03:11:26 +0000

There’s nothing fake about it. The legal industry is facing a big problem with deepfakes. Courtrooms are not yet flooded with a tsunami of deepfake evidence, but with this artificial intelligence-generated technology playing with great success on social media and in fraud schemes, it’s only a matter of time before deepfakes regularly drop into the exhibit list.

Cases with a deepfake component already include:

United States v. Reffitt: A defendant’s counsel argued that the prosecution’s evidence could be a deepfake.
Sz Huang v Tesla: A defendant’s counsel argued that video evidence of a party’s principal’s statements could be a deepfake.
United States v. Doolin: A court allowed introduction of video evidence that the defense argued could have been a deepfake.
Al-Qarqani v. Chevron Corp.: An attorney submitted an exhibit reciting an allegedly false timeline of facts published in a newspaper that does not exist.

According to March 2023 article the New York Times, many of the apps and tools used to create deepfakes are available to anyone with a smartphone and are free or inexpensive, making it far too easy to create or alter digital evidence.

Amplifying the problem is the fact that “right now, truth is starting to become a matter of degree,” says Maura R. Grossman, a research professor at the University of Waterloo and an attorney and e-discovery special master. Grossman points to examples, such as touching up an exhibit photo to turn a frown into a smile. This small change may be immaterial to a case—or not.

What about changing a few pixels to make it impossible to tell whether someone is holding a phone or a gun in their hand? Materially altered photo and video evidence will be thrown out, but misinformation based on reconfigured reality will undoubtedly be introduced into the courtroom and to juries.

“So much of the justice system relies on interpreting evidence and deciding how much weight to give it,” Grossman says. “And we’re now moving into a world where not only can we no longer rely on our senses to do that, but we may need experts, and that changes the cost. And for the judge, that creates delays and adds a whole new layer.”

Is the most efficient solution a technical or a legal solution?

The legal world is grappling with how to handle deepfake evidence, with procedural solutions currently getting public attention as technology solutions develop more slowly. Here are three approaches on how evidence suspected of being deepfake can be handled in the legal system.

1. Technical experts

Digital forensic experts use machine-learning capabilities in AI-based detection systems to inspect the authenticity of digital media. Deepfake videos with audio are the most difficult to identify because of the human tendency to overlook small discrepancies in a video and focus on the main idea.

Digital forensic experts can apply multimodal analysis to examine multiple data sources and combine techniques. These capabilities range from artifact detection, to frame-by-frame analysis and blink analysis, to luminance gradient analysis and pixel error analysis. After conducting necessary analyses, the expert can render an opinion as to whether the evidence is authentic or altered—or not—based on irregularities found.

Hiring a digital forensic expert can cost from a few hundred dollars for hourly consulting to several thousand dollars per project. For high-profile cases with significant legal implications, fees can be much greater.

Jerry Bui of Texas-based Right Forensics is also a consultant to Interpol. He tells us that, “Deepfakes force us to confront an uncomfortable truth: Seeing is no longer believing. As forensic experts, we’re not just authenticating evidence—we’re trying to safeguard the integrity of the justice system in an era where digital manipulation can rewrite reality.”

Chuck Kellner is a strategic discovery adviser at Everlaw.

2. Court rules

U.S. courts are slowly moving to address deepfake evidence. At the Nov. 8, 2024, meeting of the Advisory Committee on Evidence Rules, a committee of the Judicial Conference of the United States, the committee considered proposed Rule 901(c), authored by Grossman and Judge Paul Grimm, a retired federal judge and professor at the Duke University School of Law.

The rule, if adopted, would govern “potentially fabricated or altered electronic evidence,” reading: “If a party challenging the authenticity of computer-generated or other electronic evidence demonstrates to the court that a jury reasonably could find that the evidence has been altered or fabricated, in whole or in part, by artificial intelligence, the evidence is admissible only if the proponent demonstrates that its probative value outweighs its prejudicial effect on the party challenging the evidence.”

Grimm and Grossman’s proposed rule places burdens on the challenging and the offering parties, as well as the courts, helping to reduce the risk of exposing juries to deepfakes. It is one of several being considered by various judicial committees. Some experts think that no changes are needed to the rules of evidence.

Given the speed at which deepfake technology evolves and improves, changes in rules or procedures might not be useful. In the meantime, decisions will be meted out by the courts based on individual challenges as they arise.

3. Procedural approaches

Courts will use the existing rules to make decisions for the foreseeable future, having hearings on evidence. Judges will have to agree to analyze digital evidence, putting the burden on litigants to prove the legitimacy of the evidence in question, rather than placing the onus on the judge to decide whether the evidence is genuine or deepfake, admissible or not.

One of the critical issues that arises when considering the legal impact of deepfakes is cost—who pays to prove whether evidence is real or fake?

“This becomes an access-to-justice issue,” says Rebecca Delfino, the associate dean of clinical programs and experiential learning at the Loyola Law School at Loyola Marymount University. “In a perfect world, it would be taken care of in a criminal case. If the government wants to prove an audio-visual image is of the defendant robbing a bank, and the defendant claims it’s a deepfake, the government should have to pay for expert analysis because the burden of proof is on the prosecution. That may or may not happen; It depends on the available resources.

“But in the civil context, it’s going to be a significant problem,” Delfino continues. “Even for a simple example—such as the expression in a photograph being digitally altered from a frown to a smile—the individual will need to retain some type of expert.”

In family court, with its many pro se litigants, yet another reality exists—that a photo showing bruises would change someone’s life. Is it real or a deepfake? Who pays the expert to analyze it?

It’s just one of a multitude of questions that remains to be answered on how the legal world will adapt to a rising tide of deepfake evidence. We may not be at the end of reality, but deepfakes are definitely going to rock the legal world as we know it.

Practice tips

Look for items of evidence that are too good or too damaging to be true.
Deepfakes in social media tend to be video, audio and pictures. You can easily get automated optical character recognition to find text in pictures. You can also get machine transcription of audio and video. Each of these yields searchable text that you can use as a starting point to uncover suspicious material.
Plan your deposition or trial, so that you have your exhibit lists ready earlier than you do now. Implore the court to require your adversaries to do the same.
Evaluate the exhibits, paying close attention to those with audio, video or picture formats. Interview your witnesses, and challenge suspicious content. Don’t wait until the day of testimony.
Be prepared to engage a computer forensic examiner to evaluate the evidentiary quality of an item suspected of deepfake.

Chuck Kellner is a strategic discovery adviser at Everlaw. Kellner has worked as an expert on e-discovery protocols, proportionality and cost of e-discovery, findings on computer forensic examination, and requirements for defensible search and review.

Mind Your Business is a series of columns written by lawyers, legal professionals and others within the legal industry. The purpose of these columns is to offer practical guidance for attorneys on how to run their practices, provide information about the latest trends in legal technology and how it can help lawyers work more efficiently, and strategies for building a thriving business.

Interested in contributing a column? Send a query to [email protected].

This column reflects the opinions of the author and not necessarily the views of the ABA Journal—or the American Bar Association.

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Launch into 2025 with our Mind Your Business roundup

homesafetytechpros — Fri, 17 Jan 2025 17:33:26 +0000

Mind Your Business

Launch into 2025 with our Mind Your Business roundup

By Lee Rawles

January 2, 2025, 3:30 pm CST

As you gear up for a productive 2025, check out our Mind Your Business advice from the past year. Mind Your Business, which launched in 2020, is a way for legal professionals to offer each other practical practice advice. If you have hard-won knowledge of your own that you’d like to pass on, scroll to the bottom to find out how you can join the conversation.

Make no mistake: Maintaining privacy compliance is a complex moving target, and the checks and balances that your company needed 10 years ago do not even scratch the surface of what you need today.

Assuming that you share your legal knowledge and experience without oversimplification, advice from marketing experts can be worthwhile and immensely useful. Here are a few ways to embrace marketing advice without leaving your legal training behind.

Businesses increasingly recognize emotion’s pivotal role in decision-making. Research in the Harvard Business Review shows emotional connections can drive significant gains.

How you manage a crisis is critical and may be the difference between a swift resolution and a prolonged public nightmare. Consider these seven lessons to help guide your clients successfully through their next crisis.

Few law schools offer their graduates LinkedIn self-branding workshops as an employment game-changer before law firm hiring managers. Today, even when taught, self-branding coursework is outdated, even at the best law schools. Or, as widely lamented by attendees in my recent online seminar, marketing courses not offered at all.

To better advise artificial intelligence decisions, lawyers should know the benefits, shortcomings and best practices of incorporating insurance into AI risk management.

Contract management. Compliance updates. Discovery responses. Intellectual property portfolio management. These rote, often-time-consuming tasks can all be part of an in-house counsel’s day-to-day schedule. The problem? Many can devolve into costly time sinks for a legal department’s salaried talent.

As generative artificial intelligence stormed the scene over the past year with its snazzy Q&A interface, it was fair to ask whether existing ways of accessing knowledge, such as keyword search or templates, would become redundant. After all, why would you need those old ways of tracking down specific pieces of knowledge if you can just ask the all-knowing AI to call it up for you?

Many law firms are seeking to increase diversity, equity, inclusion accessibility and belonging within their team (collectively, “DEI”). Following are five tips for how law firms can apply DEI best practices in 2024.

As 2024 begins, so does the business of legal recruiting. And not surprisingly, we have already seen numerous transfers of law firm partners and groups. The market also anticipates several more major firm mergers this year. As we start this new year, I would like to broach the question, do you know who your legal recruiter is?

“It’s never going to go well,” Arizona attorney Lynda C. Shely says about the prospect of representing anyone you are close to, including family members and friends. Shely, the immediate past chair of the ABA Standing Committee on Ethics and Professional Responsibility, works in private practice and has advised more than 2,500 law firms around the country on legal ethics matters.

Are you interested in contributing your own business wisdom to ABA Journal readers in 2025? The ABA Journal is open to receiving submissions from legal professionals and subject-matter experts for the Mind Your Business series. Read submissions guidelines here.

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It’s time to focus on big-picture strategies

homesafetytechpros — Mon, 13 Jan 2025 11:47:40 +0000

For far too long, legal departments have been considered the slow-moving arm of the business. This presumption is true for many reasons—chief among them the fact that the legal department’s primary role is to balance risk with opportunity. Such responsibility often requires endless hours spent analyzing massive amounts of contract data to forecast potential gains and minimize losses.

But with the advent of generative AI, many processes that slowed down the legal arm of the business can be rapidly accelerated, especially when it comes to an organization’s contract data analysis and management systems. In fact, now that our industry has a much clearer vision of what generative AI can do—and how it can improve contract management workflows—tedious routine tasks that previously took up an exorbitant amount of time can be completed in a matter of minutes. These advancements have major implications for the legal department and its impact on the rest of the organization.

As we begin 2025, three emerging trends point to a future where legal teams will have the insights they need to play an integral role in their organization’s revenue goals. Here’s a look at how these shifts will transform legal work, freeing legal leaders from redundant, time-consuming tasks to focus on big-picture strategies.

1. Modern-day legal teams will be more agile, allowing them to move at the new speed of business

Generative AI has ushered in a new era of contract management strategies. With the right solutions in place, legal teams can become more agile and effective, supercharging productivity in ways that were unimaginable less than two years ago. But before legal teams can take advantage of generative AI solutions that are actually useful versus just being cool, business leaders must be more thoughtful about their AI investments and implementations.

It’s imperative businesses understand and lean into effective data grounding efforts to avoid “garbage in, garbage out” scenarios often associated with the large language models powering today’s more popular generative AI platforms. Data grounding will be a key factor in generative AI’s ability to deliver accurate and high-value outputs within contract management programs. Once teams are able to prioritize their data grounding efforts, tasks that took months to accomplish will be completed in minutes. Generating first drafts, writing clauses based on playbook analysis, searching endlessly for contracts that are often kept in disparate systems—these are just a few use cases where generative AI will drive productivity across legal workflows and processes.

Justin Schweisberger leads sales, marketing and strategic partnerships for Pramata, a leading end-to-end contract management platform.

2. Contract data will be recognized as a business-critical asset, unlocking unrealized revenue gains and new levels of growth

Contract data is not only the key to unlocking cost-saving opportunities, it is also one of the largest sources of untapped revenue for organizations that haven’t optimized their contract management programs. From identifying revenue leakage and overspending on vendors to developing more profitable contract provisions and renewal terms, there are a multitude of ways that contract data can drive massive revenue gains. Unfortunately, most CLM platforms fail to provide high-value insights that can move the needle on their organization’s most important goals.

But the tides are turning. Effective enterprise-grade contract AI solutions are changing the game when it comes to how legal teams leverage their contract data. With full visibility into their contracts—along with tools that can automate complex data analysis—forward-thinking legal teams will be able to realize the organization’s contracts as the business-critical asset they are.

Before legal teams can maximize the value of their contract data, it’s imperative that their contract management solutions come equipped with a contract-AI knowledge engine to avoid the “garbage-in, garbage-out” challenges often associated with generative AI tools. It is also important that CLM software includes an AI-powered repository that enables legal teams to expertly organize their contracts and extract key insights from a centralized—and searchable—database. Another key component of an effective contract management platform is ensuring it is not only intuitive, but accessible to stakeholders outside of the legal department, including sales leaders, finance teams, and the procurement department.

3. Enterprise-grade contract AI will allow legal leaders to achieve outcomes that go far beyond the legal department

The introduction of enterprise-grade contract AI technology makes it possible to extend the value of contract data well beyond the legal department. With the right platforms in place, sales, procurement and finance teams will gain access to previously unavailable contract insights that get them closer to their most important goals. Legal teams can turn contract data into revenue drivers, while procurement teams can better manage vendor relationships. Sales can optimize renewal terms within customer contracts and close deals faster, while finance leaders can rely on contract data to identify cost saving opportunities, as well as find—and stop!—revenue leakage.

The reality is now that legal leaders have a more realistic view of generative AI’s capabilities and limitations, they are better positioned to implement processes that maximize the value of their contract data.

One key benefit of the modern-day legal departments will be the ability to create self-service contract management solutions that can be used by business leaders outside of the legal department, including the CFO and head of sales. And that’s the real promise of enterprise-grade contract AI: delivering unhindered access to valuable contract data to the people who can activate it and drive measurable revenue growth.

There’s no question that the future of legal work is undergoing massive shifts. Legal leaders are reconsidering how work gets done and being more intentional about how they integrate generative AI solutions into their workflows. For the teams that are able to capitalize on these shifts—finally able to take full advantage of their contract data—the sky is the limit.

Justin Schweisberger leads sales, marketing and strategic partnerships for Pramata, a leading end-to-end contract management platform. In this role, Schweisberger sets the company’s global market positioning and forges Pramata’s relationships with some of the world’s top brands.

Interested in contributing a column? Send a query to [email protected].

This column reflects the opinions of the author and not necessarily the views of the ABA Journal—or the American Bar Association.

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How to ensure your legal team is well-prepared for the shifting privacy landscape

homesafetytechpros — Sun, 24 Nov 2024 18:24:12 +0000

From the recently introduced American Privacy Rights Act—which proposes new federal consumer privacy standards—to numerous state-level bills, to recent and impending artificial intelligence legislation, the data privacy landscape is evolving at lightning speed.

Compliance concerns are now front and center for organizations of all sizes—abroad and in the United States. While it is unlikely that legislation will pass at the federal level, states have clearly demonstrated a willingness to pass and implement comprehensive privacy laws.

California led as the first state when it passed the California Consumer Privacy Act (signed into law in 2018 and went into effect in 2020). And it was then joined by Virginia, Colorado, Utah and Connecticut, all of which were implemented in 2023 with new consumer privacy laws. By the date of this article, at least 19 states have passed comprehensive privacy legislation (with implementation dates in 2025 and 2026).

Make no mistake: Maintaining privacy compliance is a complex moving target, and the checks and balances that your company needed 10 years ago do not even scratch the surface of what you need today. As a general counsel, you must be able to assemble a strong, adaptable legal team that can help your company stay compliant with current standards and anticipate and respond to the many changes coming down the pike.

Key considerations for GCs

When preparing for the new frontier of privacy and data security, consider how your department and organization will handle the following critical issues.

1. Ownership of privacy matters. Who is responsible for privacy concerns within your organization—is it the legal department exclusively? If you do have a privacy team, how does your team partner with legal to ensure that all bases are covered? As data privacy concerns become increasingly paramount to your operations and risk management efforts, you may want to consider the benefits of having a separate, dedicated team for these issues. This laser-focused support can help your company keep up to date with regulatory changes and respond with the necessary policies and procedures, thereby reducing the risk of violations and hefty fines. What is more, a freestanding privacy team can be a bridge between various departments, ensuring that privacy is considered across all business functions.

2. Drafting of privacy notices. Given recent and emerging legislation, the drafting of privacy notices and privacy-related contract provisions has taken on new urgency for businesses that handle consumer data. Poorly drafted notices can expose your business not only to legal risks but also to fines and reputational damage. While most lawyers have a degree of skill in drafting these notices, consider whether you have the right person handling this task. A seasoned privacy lawyer understands the legal nuances of your company’s data tracking, collection, processing, storage and sharing practices. They can also help balance legal compliance and user accessibility by making sure that all privacy notices are clear, transparent and easily understandable for consumers.

3. Implications of AI technology. AI is not just the buzzword of the moment; it is likely one of the biggest technological revolutions in human history. Generative AI and other types of machine learning are being implemented in different technologies, by nearly all companies and vendors of all kinds, at a rapid pace. That means that even if your company is not in a regulated industry, you will still have to worry about being regulated by any AI laws on the horizon.

The European Union took the first step in the march toward AI regulation, with the EU Artificial Intelligence Act taking effect across all 27 member states Aug. 1. While some provisions are already active, by 2026, most of this law’s provisions will go into force.

Not wanting to fall behind, Congress has proposed federal legislation, and the White House and agencies, such as the Federal Trade Commission, the Securities and Exchange Commission and the Equal Employment Opportunity Commission have provided guidance on the topic.

Many states are being proactive, with Colorado and Illinois passing AI legislation in 2024 that take effect in 2026. Additionally, at the end of its 2024 legislative session, California passed numerous AI bills.

The plethora of AI legislation will have significant global implications for companies that develop, deploy or operate AI systems—regardless of where they are in the world. Companies worldwide will have to invest in AI governance; adapt their technologies to meet these regulatory standards; and ensure that their AI systems are lawful, ethical and trustworthy (or else face penalties and business restrictions in the EU or other markets).

Even if your company is using AI indirectly (e.g., through a third-party vendor) and not actively developing AI tools, it will face unprecedented new demands in this area. You will be obligated to explicitly outline how you are using AI, implement an AI risk management policy, and perform AI risk assessments.

These matters will not be exclusive to the legal/privacy team. Instead, it requires a multidisciplinary AI team that brings together key business stakeholders, legal, IT, data science, risk, information security, marketing and other functions. As a GC, you have to be able to understand legal’s role in the AI ecosystem and what you are ultimately obligated to do to meet compliance standards.

Consider flexible talent who can make an immediate impact

If you are wondering whether your team has the bandwidth or expertise to manage new and emerging privacy demands and you are not yet ready to add head count, one option to consider is using interim, or temporary, counsel. These lawyers can help lighten your load, whether it is for a specific project or a flexible range of time, bringing in specialized legal expertise as you get your arms around new privacy regulations. A privacy lawyer can help you quickly assess privacy risks, implement corrective measures, and train your internal teams.

In addition to a wealth of privacy and/or AI expertise, interim counsel can often hit the ground running without much assistance. They offer immediate support and strategic guidance for the future—all without the long-term commitment of a permanent hire. That said, if you have an interim privacy lawyer that makes a solid addition to your team, you can often convert them to a permanent employee down the road.

Stay informed, agile and proactive

Preparing your legal team for the evolving privacy landscape is not just a matter of compliance—it is a strategic necessity if you want to stay ahead of the curve. By educating yourself on the changes to come, defining roles and responsibilities, and getting creative with how you build your team, you will be poised to mitigate risk and emphasize your role as a trusted adviser to the business.

Maureen Dry-Wasson is vice president, group general counsel and global privacy officer with the Allegis Group and Major, Lindsey & Africa. She has been an in-house attorney for more than 25 years and is a fellow of information privacy with certifications from the International Association of Privacy Professionals for AI governance privacy management.

Iris Zuckerman is a managing director of client development with Major, Lindsey & Africa’s interim legal talent team in Chicago, working with law firms and legal departments to identify high-quality legal talent to take on short-term, project-based engagements.

Interested in contributing a column? Send a query to [email protected].

This column reflects the opinions of the author and not necessarily the views of the ABA Journal—or the American Bar Association.

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How to integrate marketing insights into legal writing

homesafetytechpros — Tue, 17 Sep 2024 08:58:03 +0000

Writing plays an expanding role in the evolving legal marketing world, and lawyers have much to learn. We must pivot to produce easily digestible content. To effectively market ourselves and our law firms to clients through law alerts, blogs or other methods, we must stop writing like lawyers and start writing like marketers, journalists or speechwriters.

Directions for doing so abound: Write for an audience of eighth graders, focus on SEO optimization, avoid citations, format with bullet points, etc.

These suggestions add value. That value is limited, however, by a foundational flaw. Advising lawyers to write simplistically and formulaically misses the mark. It fails to recognize that clients hire us because we are legal experts, not because we are marketing experts. When we oversimplify to improve marketability, we strip legal content of the nuance our clients and potential clients expect us to incorporate into our practice. With that in mind, there are several ways to integrate marketing guidance into our writing while still performing our roles as lawyers.

Legal writing training begins in law school, as ABA accreditation criteria includes faculty-supervised first-year and upper-class writing requirements. Many schools add more substantial demands, including writing major articles and papers with extensive one-on-one faculty supervision. Academic journal writing and editing is another format for jargon added to the mix. This education, built upon post-graduation at firms around the country, creates attorney writers.

Some are so well-trained that they cannot help themselves from placing errant commas where none belong or adding unnecessary modifiers for yet further clarification of a three-line email. Nor can they stop themselves from capitalizing the words “plaintiffs” or “defendants.” (Practical note: Capitalize parties in court documents, not articles or blogs.)

Gifted citation checkers, perhaps, many attorney writers are like classically trained chefs who struggle to make a simple grilled cheese sandwich. They command the capacity to communicate with complex legalese but cannot distill legal intricacies into plain English.

And that is where change is required. Taking into account our expertise and understanding of the law, we have to learn how to share our knowledge. That does not mean understating complexities or habitually circulating information following often inapplicable conventions. Instead, we should think through each communication—its intention, substance and implications—and plan accordingly.

Leverage marketing insights

Assuming that you share your legal knowledge and experience without oversimplification, advice from marketing experts—in-house at your firm or outside consultants—can be worthwhile and immensely useful. Here are a few ways to embrace marketing advice without leaving your legal training behind.

1. Show, don’t tell

This old writing adage rings true for lawyers. You cannot advertise yourself as an “expert” without violating professional ethics rules, so use your writing to show your expertise. Include legal jargon and explain it. Breaking down complex legislation or regulations into digestible content will demonstrate your mastery of the materials. For an extra challenge, show that mastery. Graphics, charts and flow diagrams double as effective ways to explain complexities and visual showcases of your expertise.

Publishing well-written, high-quality blogs and articles distinguishes you from your competitors. Many lawyers can summarize the Federal Trade Commission’s most recent rule banning most noncompetes. Still, it takes more experience to successfully address related, more complex questions: How does the rule impact forfeiture provisions and clawbacks—particularly related to ERISA plans? As part of the executive branch, does the FTC even have the constitutional authority to regulate contracts?

2. Use active voice

Passive voice is not a grammatical concern, but it complicates sentence structure and adds extra words. Compare these sentences:

• “Passive voice is to be avoided by legal writers who wish to achieve success.”

• “Successful legal writers avoid passive voice.”

All writers benefit from replacing a passive voice with an active one (most of the time), but this is a particularly useful tip for lawyers. To communicate effectively, we should focus on writing simpler sentences—in structure, not content.

The active voice conveys directness and strength, both of which clients and potential clients want to see in their lawyers. Limiting the passive voice will help you demonstrate those qualities in your writing.

According to Jessica Kaplan, we should think through each communication—its intention, substance and implications—and plan accordingly.

3. Know your audience

Clients hire lawyers who are well-prepared and considerate of their time. If you do not take the time to learn about your audience and write accordingly, you will have wasted your clients’ time.

If your distribution list includes primarily general counsels of national REITs, discuss important caselaw and address legal intricacies that they, as attorneys with expertise, will understand and appreciate. Provide links to cases, and consider addressing compelling arguments raised in concurring and dissenting opinions. They will likely appreciate the analysis and the mastery that you convey.

If you are writing for nonlawyers, engaging in esoteric legal analysis may be a waste of their time and yours. But do not treat your nonlawyer readers like they cannot understand legal issues. They can if you explain the issues well. It is your job to represent your clients’ interests, and educating them is an important aspect of that job.

Always use the correct legal terminology (including Latin words), and include definitions where necessary. Give your clients the credit they deserve for being intelligent and educated experts in their fields.

So write for eighth graders when preparing for middle school career day, but write for sophisticated real estate investors when explaining the implications of New York City’s rent regulation laws to institutional clients.

Do not keep a tally of SEO keywords when you write an explanation of the city’s updates to those regulations. While there is a possibility that discounting SEO may impact the analytics of your blog and your ability to reach those seeking content with Google searches (which should be explored further given Google’s March 2024 core update’s impact on SEO keywords—a subject for another column), you are writing to inform your clients. Producing helpful content geared toward those clients will make you a marketing success.

Circling back

In sum, identify your readership and understand the law to communicate effectively. Explain where appropriate but continue to write like a lawyer. And like a classically trained chef simplifying a grilled cheese sandwich, slightly alter the complexity of flavor based on ingredients and customer preferences. But do not use the microwave.

Jessica Kaplan is the founder of Legally Penned. A 2001 graduate of the University of Pennsylvania Carey Law School, Kaplan is a litigator-turned-wordsmith providing content and editing services tailored specifically to lawyers and law firms.

Interested in contributing a column? Send a query to [email protected].

This column reflects the opinions of the author and not necessarily the views of the ABA Journal—or the American Bar Association.

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5 tips for law firms to incorporate DEI best practices in 2024

homesafetytechpros — Mon, 08 Apr 2024 13:48:46 +0000

Many law firms are seeking to increase diversity, equity, inclusion accessibility and belonging within their team (collectively, “DEI”).

Last year, in the dynamic and evolving field of DEI, there was a pendulum swing in media headlines suggesting that the tech industry trend of divesting from such programs foretold the end of the post-George Floyd surge. This headline frenzy has intensified with coverage of anti-DEI legislation initiatives and the U.S. Supreme Court’s decision that prohibits universities from expressly using race data in admissions decisions.

The business case for diversity has not changed. While headlines may debate the “future of” DEI, the reality is that diverse teams (still) deliver better business outcomes. Diverse team members (still) know their value and law firms (still) risk losing team members, either to an existing competitor’s firm or to the team member starting a new law firm.

The analysis behind the headlines attempts to predict possible applicability of the Supreme Court’s holding to private employer DEI initiatives, suggesting that those initiatives may be safer from attack if they reflect a value proposition based in quantitative and qualitative data that relates to a specific industry or company. Through a data-substantiated DEI approach, firms likely need not deemphasize racial or ethnic diversity (as was targeted in the education admissions cases) or any other protected class of diversity.

Following are five tips for how law firms can apply DEI best practices in 2024.

1. Set the tone at the top to work past the ‘D’ in DEI

Leaders use communications strategies to direct and reinforce workplace norms, and a firm’s DEI initiatives must include a narrative built from the policies, practices and measurable behaviors and actions that compromise an equitable process. For a qualitative element such as “belonging,” which means feeling respected and valued for who you are across the breadth of any individual or group diversity qualities, this means DEI initiatives that support the people behind the “D” with tailored and measurable processes related to the data specific to an industry or company that provide equitable access and inclusivity within the firm.

Tip 1: Action steps

Recognize the duty to establish leadership accountability, and define the DEI value proposition through quantitative and qualitative data.
Champion DEI initiatives at the leadership level to validate their importance to the firm.
Communicate expectations for leaders at all levels to contribute positively to an atmosphere of belonging.
Provide leaders with the knowledge, training and resources to do so (and hold them accountable when they do not).
Support team member-led initiatives, create new resource distribution models and—importantly—thank yourself and your leaders for the willingness to persevere.

2. Adopt or double down on a learning and growth mindset

As an evolving field, DEI work requires pivoting to new methods or applying proven methods to new contexts. Business leaders are expected to act at the right time, even with imperfect information, and they must do the same in this context. Leaders, and especially lawyers who are leaders, often prefer to mitigate risks based on a predicted net financial outcome, yet crafting and implementing a business’s DEI initiatives demands that leaders take some risks rather than mitigating them to the point of inaction. Even the most thoughtful initiatives may make some people uncomfortable, and law firms and their leaders will make mistakes and will be held accountable, directly (e.g., confrontation) or indirectly (e.g., leaving the firm or working with a lower level of engagement). Practicing a growth mindset where DEI initiatives require that the firm seek, digest and apply feedback captured through quantitative and qualitative data will support an atmosphere of belonging for team members.

Tip 2: Action steps

Respond to feedback (be open to adjusting/ending an initiative early if needed).
Accept that the firm may fail to achieve all/part of any DEI initiative.
Regularly reflect and recalibrate through incremental changes.
Celebrate and express gratitude for DEI efforts. Validate any adjustments as progress.

3. Build self-awareness and emotional intelligence

The high level of human variability in addressing DEI initiatives means emotional work is inescapable. Leaders need not carry the weight of correcting history but must appreciate the societal significance of taking small actions toward incremental progress. Actions carry more weight than any brand messaging and also require more energy, which may deplete personal emotional resources.

Tip 3: Action steps

Make sustainably sized and consistent efforts toward long-term results.
Demonstrate a growth mindset:

Celebrate effort as you go.
Learn from mistakes.
Share lessons.
Make repairs as possible.

4. Ask for help

DEI is a system-based set of theories and practices; no leader can or should do it alone. To develop tailored mitigation strategies to address organizational barriers, consider an internal compliance audit of DEI initiatives or a third-party assessment, perhaps a DEI auditor, a compliance audit of DEI initiatives or a third-party certification (e.g., Diversity Lab’s Mansfield Rile certification, Human Rights Campaign Foundation’s Corporate Equality Index). Identify educational or experiential gaps and provide targeted training; training should be intentional, with a follow-up plan for reinforcing the skills taught, and should engage key leaders in the firm and be tracked against metrics to measure success or long-term impact.

Tip 4: Action steps

Build a community of peers and leaders who value DEI initiatives. Prioritize being mentored by a leader with more DEI experience and mentoring a leader or peer with less DEI experience.
Employ or engage internal or third-party support personnel and professional experts.
Provide targeted training and accountability for applying the training’s lessons.

5. Implement substantiated DEI initiatives

This is tough work. DEI initiatives should include measurable organizational behaviors and a value proposition supported by quantitative and qualitative data, implemented with best practices:

Diversity: Based on a value proposition specific to the industry or company, create specific, clear and measurable DEI initiatives, and track results.
Equity and access: Provide an equitable process of policies, practices, behaviors and actions, and track opportunity, contribution and advancement.
Inclusivity: Evaluate, identify and support underrepresented groups through equitable processes.
Belonging: Whose perspectives were considered, prioritized and/or left out? Practice asking these questions to create a culture where team leaders and team members do the same.

Jill Warning is director of DEI at SRD Legal Group, which is a women-owned virtual law firm. Warning is in the practice of law and specializes in providing legal services to financial services companies. Warning is a military spouse who regularly attends the National Association of Minority and Women Owned Law Firms’ conferences (her views in this article were influenced by her attendance of a March 2024 NAMWOLF conference in New Orleans) and is a member of the NAMWOLF Emerging Leaders Initiative and events committee. In 2023, Warning moved with her family from Newport, Rhode Island, to Honolulu, where she has built new favorite running routes in her Ko’olau mountainside neighborhood.

Interested in contributing a column? Send a query to [email protected].

This column reflects the opinions of the author and not necessarily the views of the ABA Journal—or the American Bar Association.

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Do you know who your legal recruiter is?

homesafetytechpros — Sat, 24 Feb 2024 15:59:42 +0000

As 2024 begins, so does the business of legal recruiting. And not surprisingly, we have already seen numerous transfers of law firm partners and groups. The market also anticipates several more major firm mergers this year. As we start this new year, I would like to broach the question, do you know who your legal recruiter is?

Top legal recruiters can make millions of dollars per year. Some of the larger recruiting firms are attached to massive corporations that produce billions, and yet no one is monitoring anyone. Transactions that include partners with portable business vary between tens of thousands to $2 million as a common cap for recruiting fees. These partners who manage active client books and their groups could be a value from hundreds of thousands to millions for recruiters. Associates and other attorneys can bring in tens of thousands in fees.

Firms are either targets or in business with recruiters. And in some cases, they are both, despite contractual obligations. Most agreements have a nonsolicitation period of at least six months. This is an agreement that the recruiter will not poach from their client they just made a placement with. However, some recruiting firms are finding creative ways to get around these promises.

Today, the legal recruiting industry has issues such as distinguishing a legit recruiter from a bot, working with recruiters who have an ethical compass, and those who do not. There are some recruiting firms that employ hundreds of legal recruiters, even more than there are Am Law firms, with a frenzy of conflicts to manage, all disguised by excellent PR teams.

As seen in court filings, some of these large legal recruiting firms poach candidates from their clients and work collegially with the other agencies under their corporate umbrellas to monetize sensitive information repeatedly.

The recruiting industry in the United Kingdom is highly regulated, with annual revenues around $140 billion. Various reports claim that the U.S. recruiting industry generates as much as $220 billion and has no organization overseeing much needed regulations.

Like financial advisers in a regulated industry, an attorney would be shown the door if they are found out looking at another firm without permission. This is why candidates’ identities are supposed to be protected. On the larger scale, when a firm becomes a candidate in a merger, the candidate firms can suffer if this information is exposed—just like leaked information on a publicly traded company. Merger information is safeguarded at corporations—just like it is at firms. If this information is unprotected, the value of a firm can be affected more so for the smaller acquired firm.

Bigger but not better

When recruiters are not following basic ethical rules and the law, it can disrupt the entire legal market. Many of the top recruiters in the world are courted by BigLaw, and when you have been around as long as I have, we choose who we work with and select carefully for many reasons. Firms should make similar careful choices and hesitate before they share too much of their confidential information. As a former financial adviser who had my entire life combed through by regulators, I can and will tell you who I am; will others?

Some larger recruiting firms admit that they are too large to manage all their client obligations, claiming that they are simply limited from pilfering from the office that they placed from in the standard six months hands-off period following the placement. I have only seen agreements that require the entire firm to be hands off for the specified time. Do you know a firm that is OK if a recruiter placed a partner in one city and then took a group from another city? Is there a firm that is OK if you placed an associate in one city but took a partner or group from another?

Firms that are vereins or have profit centers in each city still seek collective benefits, such as recruiting services. These firms often share administration and executive staff who manage these firm wide benefits. The firms that are vereins that I have agreements with also have firmwide nonsolicitation expectations for recruiters and do not allow office by office pillaging.

If the recruiting industry was regulated, we would see everyone’s skeletons—just like we do in other industries—like we do at firms. We would be able to track transactions and reduce litigation and disruption. Most large recruiting companies have mandatory arbitration clauses in their employment agreements with their recruiters, which shield the bad and sometimes arguably illegal behavior of the large search firms from the public through the confidential confines of binding arbitration.

Arbitration is nearly impossible to overturn on appeal and is a venue that frequently favors the larger company. These companies pay the arbitrator’s fee and choose the arbitrator, which enables these companies to shield and not be accountable for their illicit behavior.

President Joe Biden, through the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act in 2022, is taking action to eliminate mandatory arbitration agreements in employment agreements for the reasons stated. But it is not retroactive. Therefore, big recruiting firms are not in fear of their unethical behavior being exposed publicly and are not disincentivized to discontinue violating their contracts with firms.

While getting creative to avoid getting caught poaching from clients, some of these larger firms use pseudonyms to hide from obligations. Do you even know your recruiter? Is that something sophisticated firms are willing to deal with? Who is checking these recruiting firms?

The National Association of Legal Search Consultants is a social and networking club that hosts some of the top recruiters in the industry. This elite organization is an “honor system” ethics group that discusses trends in the industry and issues that plague legal recruiting. Unless you are a member, there is no authority to enforce the rules and guidelines that are required for members. These larger recruiting firms cannot belong to the NALSC because they will not abide by the basic ethics.

Legal recruiting is similar to trading assets only in an unregulated market. Legal recruiters have a free range to give ideas that benefit them the most. Some are conflicted out from certain firms or unable to bring certain firms to the table but are not required to disclose their conflicts. In many cases, especially from the larger recruiting firms, their clients are only getting a glimpse of the available market because of their many conflicts, and they do not even have to disclose this to their clients.

Some recruiters are obtaining private firm financial information, stashing it and using it to monetize later. This private information is being found on lists for sale and used in graphs for comparison. Here is an important news flash: Recruiters do not need firms’ delicate financial information to bring in that big candidate. You can do that part yourself and safeguard your sensitive information from future use by locking in a nondisclosure agreement before the candidate is informed. Attorneys can typically decipher the sensitive details, and if they need support, they can seek one of the many third-party consultants who do not have a million-dollar reason to show them a specific path that they benefit from.

In the firm marketplace, there are clients, partners and staff, entire communities and vendors. There are recruiters who are doing the right thing and then those who are not. The top recruiters are one degree from the most important people in the world. Who else thinks it is time there are some basic regulations or requirements in recruiting?

Kimberly Stockinger is the CEO of the Sweetbridge Group, a legal recruiting company, and has been a legal recruiter since 2010. Before this, she was a financial adviser and spent 15 years in the highly regulated financial industry in roles including leadership. Stockinger now works directly with law firm leaders on firm merger introductions and filling executive positions.

Interested in contributing a column? Send a query to [email protected].

This column reflects the opinions of the author and not necessarily the views of the ABA Journal—or the American Bar Association.

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What to do when friends or family members ask for legal advice

homesafetytechpros — Wed, 31 Jan 2024 01:43:46 +0000

“It’s never going to go well,” Arizona attorney Lynda C. Shely says about the prospect of representing anyone you are close to, including family members and friends. Shely, the immediate past chair of the ABA Standing Committee on Ethics and Professional Responsibility, works in private practice and has advised more than 2,500 law firms around the country on legal ethics matters.

“What friends and family don’t understand is just giving them a little bit of advice creates an attorney-client relationship,” Shely says. “And a young lawyer can be sued if the advice they give is wrong.”

A friend or family member asking for legal advice can make for a complicated situation, especially because “young lawyers typically want to flex the knowledge they learned from law school or from their limited time as a lawyer,” says Khasim Lockhart, an associate at Frankfurt Kurnit Klein & Selz in New York, whose focus areas include legal ethics and professional responsibility.

The risks of giving legal advice in these situations

The possibility of inadvertently creating an attorney-client relationship is a very real risk.

“When you start giving advice about how to deal with somebody’s particular legal problem and not just giving referrals to sources of assistance, the risk is that you are going to inadvertently create a lawyer-client relationship—because the person is going to understand you are giving them assistance about their particular problem that they can rely on,” says Bruce A. Green, the Louis Stein chair at the Fordham University School of Law, where he directs the Louis Stein Center for Law and Ethics. Green is the current chair of the Standing Committee on Ethics and Professional Responsibility.

This may violate your duty of competence if it relates to something outside your realm of expertise under Model Rule 1.1 of the ABA Model Rules of Professional Conduct.

“As a young lawyer, you want to be helpful to anyone, especially family members, but at the same time, the biggest risk from helping family members is that a lawyer can end up dabbling,” Lockhart says. “What I mean by dabbling is a lawyer having limited involvement in a subject matter and giving a few pieces of advice based on general knowledge from law school or a random case they read while simultaneously trying to avoid fully engaging in the matter. But even five minutes of advice can be truly damaging.”

Ethical duties and the possibility of a malpractice claim

Shely says young lawyers should understand that even if they think they are giving just “a little bit of advice,” say on the sidelines of their kids’ soccer game to another parent, the lawyer would likely be required to put that contact in their firm’s database as a potential client and a potential conflict under Model Rule 1.18 and pursuant to their local rules that cover duties to prospective clients.

In addition to the risk of losing a friend after offering bad legal advice, a young lawyer could also be sued for malpractice.

“It happens all the time,” Shely says. “And that’s not a debt you want to take on along with student loans.” Even where your firm might have malpractice insurance, if you provide advice outside the scope of your job, it may not be covered.

How to respond when a friend or family member asks for legal advice

So what is a young lawyer who specializes in labor and employment law supposed to do when a family member comes to them with a criminal defense issue?

The best thing to do is be straightforward and say: “I have no experience in that area of law, but I can find someone for you,” Lockhart says. New lawyers and seasoned lawyers alike are familiar with other attorneys at their firms or through bar associations and can connect a family member or friend to one with the experience they need, he adds.

It’s OK to represent friends and family members, but do it the right way

If a young lawyer feels competent to represent someone close to them, there are no rules preventing that representation, but it must proceed the way that any other representation would.

“You have to do the full gamut of having them come into the office or doing a consultation virtually and sending an engagement letter,” Shely says.

She also recommends that lawyers who choose to represent a friend or family member make sure to carefully limit the scope of representation in a written engagement letter to just that matter and not agree to represent on appeal.

“Otherwise,” Shely says, “that friend or family member could mistakenly think you’re going to handle all of their legal matters for free!”

Lockhart also notes that although representing a friend or family member might feel a bit more relaxed and laid-back than a more formal representation, the ABA Model Rules still apply.

“You don’t want to assume you will be more favored by a family member or friend if something goes south,” he says.

Editor’s Note: This column first appeared in the ABA Young Lawyers Division publication TYL on Oct. 13, 2023.

Samuel Dangremond is an attorney admitted to the Connecticut, Florida and New York bars. He works as a trusts and estates associate at Curtis, Mallet-Prevost, Colt & Mosle in New York City.

Interested in contributing a column? Send a query to [email protected].

This column reflects the opinions of the author and not necessarily the views of the ABA Journal—or the American Bar Association.

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Start 2024 off right with these 12 Mind Your Business columns

homesafetytechpros — Wed, 27 Dec 2023 23:20:45 +0000

Year in Review

Start 2024 off right with these 12 Mind Your Business columns

By Lee Rawles

December 22, 2023, 10:05 am CST

The ABA Journal hosts the Mind Your Business column to facilitate lawyers talking to other lawyers about the business side of law. We had 12 contributions in 2023, and we’ve put together this roundup as a perfect way to help readers get in a growth mindset for 2024. Please enjoy, and scroll to the bottom to see how you could share your own wisdom next year.

“On the basis of.” These four words from the Civil Rights Act of 1964 underlie the modern conception of illegal bias. From federal anti-discrimination statutes to state and local laws, this phrase nearly unites them all.

The pandemic pressured corporate legal departments to control costs and collaborate online to an unprecedented degree as demand for legal services surged. But missteps await legal departments that rush into implementing technology without first taking a thorough look at the bigger picture.

For the past 20 years in the legal recruiting business, my firm, the Advocates, has focused on helping our clients land key lateral attorneys and improve retention through several unique processes designed to match candidates’ personalities to the right law firm and corporate cultures for them.

Rare is the client who looks to litigators, alternative dispute resolution specialists or even corporate counsel as the “go to” persons for providing services that will prevent disputes. Most attorneys serve their clients by representing them in disputes that are already or soon to be underway, with a focus on billable negotiation, mediation, arbitration or litigation representation.

After years of unbridled hiring, a growing number of tech companies recently have made headlines with layoffs and recruiting slowdowns. In-house counsel jobs, especially at tech companies, are not exempt.

A JD degree is a gateway to various career alternatives. One of these opportunities, teaching law in a business school, receives little publicity and often is overlooked by law school graduates.

Generative AI systems are made up of billions or even trillions of parameters trained on vast amounts of data, and their complexity makes their outputs notoriously difficult to explain. But can complex generative systems undergo meaningful audits?

According to the Thomson Reuters 2022 State of U.S. Small Law Firms report, 22% of law firms admit that “differentiating your firm from your competition” is one of the top three goals or priorities for their practices. The report also indicates that 50% of firms find “challenges acquiring new client business” a moderate challenge, and 22% see it as a significant one. At the same time, almost three-quarters of the firms feel that the most competition comes from other law firms of similar size.

Before you start drafting a plan to expand your firm into new territories or practice new areas of law, it’s important that you don’t fall into the habit of overworking yourself in order to achieve your business goals.

There are few events in life more pivotal and significant than becoming a parent, especially for the first time. Yet even in today’s era of post-COVID-19 extravagant employee wellness initiatives that focus on mental health, many employers fail to recognize the importance of providing their workforce with the one benefit that will enhance both employee retention and job satisfaction: a robust parental leave policy.

In the wake of the COVID-19 pandemic, offices worldwide have been compelled to adapt to virtual or hybrid work models, transforming the way businesses operate. While the urgency to implement these changes may have diminished since restrictions have become almost nonexistent, the impact of virtual and hybrid work environments continues to resonate strongly, particularly within the legal industry.

As lawyers, whether we practice in a corporate legal office, a global law firm or an independent firm, we are all trying to position ourselves for success in a changing and more globalized legal landscape. We are also all facing challenges in recruiting and retaining the young lawyers who will help us get there. Lawyer exchanges are one tool that can be effective on both fronts.

Want to read more Mind Your Business columns? Check out the full series. If you’re interested in contributing your own advice to the column, please read our submission guidelines, and you may see your work in a future roundup.

Interested in contributing a column? Send a query to [email protected].

These columns reflect the opinions of the authors and not necessarily the views of the ABA Journal—or the American Bar Association.

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