Data Protection Lawyer: What They Actually Do and Why Choosing One Is Easy to Get Wrong

Table of Contents

Introduction

A Data Protection lawyer is a professional who helps organizations with their legal responsibilities concerning data collection, processing, and storage rather than being a normal business lawyer who sometimes gets to handle cases of privacy.

Although it may appear straightforward enough, the fact that there are many specialized fields in data protection law makes it often underestimated by businesses when looking for a lawyer.

Why Working With a Data Protection Lawyer Is More Complex Than It Appears

Data protection law does not constitute one homogenous practice area but instead constitutes the following elements:

Advice regarding regulatory compliance
Guidance regarding incident response and breach notification
Advice on reviewing contracts for data processing agreement

It is the case that many firms believe that any corporate lawyer will be able to deal with the issues involved with data protection, yet they do not understand how specialized and how rapidly evolving an area of law this has become.

In the case of a firm working in more than one jurisdiction, it becomes necessary to seek legal advice on a case-by-case basis in relation to different frameworks, as the requirements will be different depending on the region.

Major Areas Where a Data Protection Lawyer Provides Value

Regulatory Compliance Advisory

Rules Governing

Understanding the applicability of regulations to a company’s data practices
Providing legal basis for handling personal data
Analyzing privacy policies and consent procedures for compliance

Using a template for compliance purposes without any legal analysis is the most common mistake which may lead to the following consequences:

Incorrect privacy policy which does not describe data practices of a company
Invalid consent procedure which fails to comply with a particular regulation
Only discovery of compliance gaps during a regulatory review

Incident Response and Breach Guidance

Data protection counsel generally offer incident response services, where immediate legal advice is needed to meet strict breach notification time frames.

Incident Response Support Often Includes

Identifying whether there is a notification requirement
Assistance with regulatory and third party communications
Advice on the liabilities in light of the data incident

Contract and Data Processing Agreement Review

Incident management not only involves internal compliance considerations but also, increasingly, legal consideration of vendor arrangements for data processing carried out on behalf of the company.

Those Contract Reviews Usually Vary in Many Respects Including

Terms for the data processing activity in accordance with the applicable regulation
Liabilities between the company and its vendors
Data transfer arrangements for international transfers

Regulatory Investigation and Enforcement Defense

Data protection counsel usually plays an important role in:

Answering regulators’ questions or investigation
Negotiation with regulators concerning possible sanctions
Representation of the company in enforcement action

Naturally, the skills required in each of the listed cases vary depending on the particular regulatory body and the violation concerned.

Ongoing Advisory as Regulations Evolve

A number of companies need continuous legal assistance concerning particular awareness issues, such as:

Updating regulations relevant to current activities
Advice on any data processing activity before its introduction
Risk assessment of emerging technologies like artificial intelligence processing personal data

Continuous legal assistance has to be provided due to the rapid evolution of data protection laws in most jurisdictions.

Why Legal Gaps Happen Even When Businesses Have General Counsel

A lack of sufficient legal advice on data protection laws rarely occurs due to the absence of legal expertise within the firm.

On the contrary, a deficiency may arise due to:

Corporate counsel’s failure to possess specialist knowledge on rapidly developing data protection laws.
The search for legal advice takes place only after an issue arises.
Jurisdictional expertise is needed for international operations.

How Businesses Choose the Right Data Protection Lawyer

Assessing Specialization and Relevant Experience

Larger companies might prefer lawyers who have expertise in data protection laws depending on whether there is a need for operating within different legal frameworks.

Qualities Supporting Effective Legal Partnership

Some good lawyer-business legal relationships are those that have:
A current understanding of changing regulatory guidance
Proactive legal advice rather than just being reactive
An understanding of the particular industry that the business operates in

Evaluating Track Record

The evaluation process is focused on:

Experience of working with particular regulators
Recommendations on incident response help provided before
Understanding of the particular technology used by the business, including AI

This makes it possible for companies to know that the lawyer is really an expert in their field of compliance.

Common Data Protection Lawyer Mistakes

Relying on Generalist Counsel for Specialized Matters

Given that a general business attorney has adequate knowledge about rapidly changing data protection laws.

Seeking Legal Advice Only Reactively

Relying on a data protection lawyer only when a situation arises instead of conducting an assessment beforehand.

Ignoring Jurisdiction-Specific Expertise

Relying on the advice of one lawyer for different locations without checking his or her jurisdictional knowledge.

Poor Ongoing Relationship Management

Lack of arrangements for:

Check-ups as the law changes
Immediate consultation about the law during an incident
Evaluation of any new data processing operations prior to implementation

Poor relationship management leaves an organization unable to obtain timely advice when needed.

Bottom Line

Practice with data protection lawyers is very varied and involves many different areas of expertise including regulation advisory, incident response, contract negotiation, enforcement defense, and regulatory monitoring.

As the field has become so specialized and evolved so quickly, it makes much more sense for organizations to look for lawyers who specialize in data protection laws.