January 1, 2018
By Aebra Coe
A few practice areas are set to skyrocket in 2018, launching the law firms that are poised to take advantage of client demand in those arenas to a whole new level.
Not only legal factors but also cultural, political, technological and business factors all come into play as law firms look for the next big thing in law and make efforts to stay ahead of the competition, shoring up resources and arming the troops to tackle some of the biggest legal issues clients are set to come up against in 2018.
Here, Law360 looks at four of the hottest up-and-coming practice areas right now.
Labor and Employment
The #MeToo movement — in which victims of sexual harassment and sexual assault speak out publicly on social media about their experiences — has created a cultural shift surrounding the reporting of harassment in the workplace, prompting a flood of allegations against often high-profile individuals in the business world.
The increase in reporting has created a need for more legal assistance from corporations’ outside counsel as companies work to make sure their sexual harassment policies are up to date, any accusations that are made are handled properly, and litigation is resolved with as little damage, both monetarily and reputationally, as possible, says Jon Lindsey, New York founding partner of legal recruiting firm Major Lindsey & Africa.
“There can be large amounts of money at stake, and certainly reputationally, it’s very fraught,” Lindsey said. “This is not the typical case of someone being fired and claiming it was due to discrimination. It’s much more newsworthy and likely to get more exposure.”
The work corporations will need their lawyers to perform in the coming year includes compliance training, writing and revising compliance manuals, auditing past reports of harassment and handling any litigation surrounding allegations that are made.
Perkins Coie LLP has responded to the increase in reports of workplace sexual harassment by launching a Workplace Harassment Taskforce, comprising attorneys from its labor and employment, corporate governance, white collar and insurance groups.
The attorneys have come together to orchestrate methods for how they can work together to address client needs when it comes to internal policies, best practices for preventing and correcting harassment in the workplace, in-person training for C-suite, upper management and nonsupervisory personnel about sexual harassment, a review of past claims and investigations, and the investigation of current claims.
“Certainly any law firm that has a labor and employment practice, I think, will be looking to that group possibly to beef up their ranks or make sure they’ve got a sufficient team to handle the internal investigations, as well as a growing number of agency complaints and lawsuits,” Perkins Coie employment partner Anne Marie Painter said. “And I think we’ll see more cooperation and participation across practice groups in helping clients address individual circumstances.”
Data Privacy and Cybersecurity
During the past year, there were numerous bombshells in the media as companies not only faced massive cyberattacks but also waited months or even years before reporting those attacks to customers and shareholders.
Some major developments during the past year include the WannaCry ransomware attack that spread across the world, the news that a data breach at Yahoo had impacted 3 billion accounts and the news that a data breach at Equifax likely compromised the personal information of 143 million people.
For corporations, cybersecurity is a dangerous new frontier with shifting borders, especially when it comes to reporting, according to Jessica Corley, a securities litigation partner at Alston & Bird LLP and member of the law firm’s cybersecurity preparedness and response team.
“With the SEC indicating that it will update its 6-year-old data breach reporting guidance, company officers and directors need to take steps now to evaluate their own breach response procedures, including areas like disclosure controls and escalation procedures, to be ready to respond to new SEC reporting directives,” Corley said.
As law firms attempt to identify high-value practice areas on which to focus that allow them to charge premium fees, cybersecurity is an area poised for major growth in 2018, Lindsey said.
“It’s one of those things where it’s worth paying whatever it takes to get it right,” he said. “There’s much less quibbling about fees because you’re adding value to something that’s really important to the client. More and more firms want to be able to offer that expertise.”
The stakes for companies can be enormous, according to Michael DiGennaro of Lateral Link. For example, earlier in the year, Anthem Inc., the largest U.S. health care insurance company, agreed to settle litigation over hacking that compromised 79 million people’s personal information for $115 million.
“Hackers don’t restrict attacks to select industries, the information that they steal is highly sensitive, and the costs to companies are huge,” DiGennaro said.
The automotive industry is poised for an enormous level of change as autonomous vehicles reach a technological — and legal — point where their introduction to U.S. roadways en masse is possible within the next few years.
In November, Google’s self-driving car division, Waymo, announced that it has been operating self-driving minivans on public roads in Arizona without a human behind the wheel, and General Motors announced in November that it plans to put autonomous taxis on the road in 2019.
With the technological advances come public policy issues and thorny legal questions for corporations in the automotive space, according to Foley & Lardner LLP partner Chris Grigorian.
Legislation that would likely accelerate getting more autonomous vehicles on the road, providing the federal government preemption over states with regard to the regulation of their design, construction and performance, has passed the House and is working its way through the Senate.
If the bills become law, Grigorian says his team anticipates a surge in legal work in 2018 as federal regulators engage in congressionally mandated rulemaking, such as amending the federal motor vehicle safety standards to remove barriers to the development of autonomous vehicles and expanding exemptions to facilitate the development and field testing of self-driving cars.
“We anticipate working closely with our clients throughout the rulemaking process and, subsequently, guiding them through the compliance challenges that will inevitably arise in this emerging area,” he said.
Part of the reason the autonomous vehicle practice area offers so much opportunity for attorneys is that it stretches across numerous practices such as intellectual property, privacy, supply chain management, government regulation and public policy, according to Eric Kennedy, a shareholder at Buchalter Law Firm.
“I’m fairly convinced it’s going to be a significant practice area going forward,” Kennedy said. “Lawyers talking about these issues now are going to be the thought leaders and industry leaders when we start to see more public exposure.”
The health care industry is in a state of massive change with the enormous number of mergers in the industry happening now and Republicans’ efforts to dismantle the Affordable Care Act. All of those business and policy changes mean health care will be a booming practice area for lawyers in 2018, according to Michael Rynowecer, president of BTI Consulting.
“The big health care players are plotting their moves with mergers and expansions; driving the need for M&A counsel, project finance, regulatory approvals, real estate needs and strategic counsel for dealing with local communities,” Rynowecer said.
Hospital and health system partnership transactions continued to rise among large organizations with nearly $1 billion or more in revenue in 2017, according to an analysis by consulting firm Kaufman Hall, with eight such transactions announced during the first three quarters of the year, double the four announced in all of 2016.
Some notable health care combinations in 2017 include drugstore chain CVS’ announcement that it plans to buy insurer Aetna for $69 billion, Cardinal Health’s $6.1 billion buy of Medtronic’s patient care, deep vein thrombosis and nutritional insufficiency businesses, and UnitedHealth’s announcement in December that it plans to buy DaVita Medical Group for $4.9 billion.
“CVS is a delivery mechanism to retailers, and Aetna is a payer. You’ve got these different organizations like delivery systems, retail systems and payers coming together in ways they’ve never come together before because they’re trying to change different platforms to change the economics of health care and change the way individuals access health care,” Rynowecer said.
He says he believes some law firms will jump at the opportunity provided by the health care industry in the coming year, bring in laterals from law firms where the practice area isn’t getting as much attention from management and actively seek out high-profile health care attorneys.
“A couple of firms have real strength in health care,” Rynowecer said. “If they think strategically, they’ll see the short-term and long-term opportunities here. This is likely to play out for a number of years.”