The European Union’s General Data Protection Regulation (GDPR) has far-reaching implications for organisations across all sectors, and law firms are no exception. While legal professionals are experts in navigating complex legislation, they also face unique challenges when it comes to managing sensitive personal data. From day-to-day client interactions to the reporting of professional misconduct, law firms must ensure that their data processing practices remain compliant with GDPR.
GDPR landscape in legal practice
The role of law firms as data controllers
Under GDPR, law firms typically act as data controllers because they determine the purposes and means of processing personal data. Whether it’s managing client files, handling litigation documents, or communicating with regulatory bodies, law firms must have robust data governance practices in place. They are required to process data only for specific, explicit purposes and ensure that any further processing aligns with these original purposes.
Legal basis and legitimate interests
Article 6 of GDPR mandates that any processing of personal data must have a lawful basis. One common basis is the processing necessary for the legitimate interests pursued by the controller, provided that those interests are not overridden by the fundamental rights or freedoms of the data subjects. This becomes particularly relevant when law firms engage in activities that, while not directly related to providing legal services, are essential to the integrity and regulation of the profession.
Case study: Further processing for a compatible purpose
A recent case from Ireland provides a practical example of how law firms might navigate complex data processing scenarios under GDPR. In this case, a solicitor (the complainant) engaged another solicitor for legal proceedings. When the professional relationship deteriorated, the engaged solicitor raised a grievance about the complainant’s behaviour to the Law Society.
The engaged solicitor disclosed certain personal data—specifically, information related to legal proceedings—to the Law Society. This raised concerns under GDPR, as the data had been originally collected for the purpose of providing legal services.
The data protection authority analysis:
Further processing
The disclosure constituted further processing of personal data for a purpose different from the original one. The Data Protection Authority analysed whether this new purpose was compatible with the original purpose of data collection.
Compatibility assessment
The DPA considered several factors including the link between the original purpose and the new purpose, the context of data collection, the nature of the data, potential consequences for the data subject, and the safeguards in place. Given that the disclosure served the public interest of ensuring proper regulation of the legal profession, the further processing was deemed compatible.
Legitimate interest
The solicitor relied on Article 6(1)(f) to justify the processing, arguing that reporting potential misconduct was necessary for the legitimate interests of upholding professional standards. The DPA agreed that, in this instance, the public interest in regulating legal practice and protecting the profession’s reputation justified the disclosure.
This case highlights that while further processing for a new purpose can be permissible, it requires a thorough case-by-case assessment. Law firms must carefully consider whether their additional uses of personal data remain within the bounds of GDPR requirements.
Broader GDPR risks for law firms
Data breaches and security incidents
Given the sensitive nature of legal data—ranging from personal client information to confidential case details—law firms are prime targets for cyber-attacks. A data breach can lead to severe financial penalties under GDPR, as well as reputational damage. Implementing robust cybersecurity measures, regular risk assessments, and incident response plans is therefore critical.
Data retention and minimisation
Law firms must adhere to the principles of data minimisation and storage limitation. This means only collecting data that is strictly necessary for the specified purposes and retaining it only for as long as required. Failing to do so can result in non-compliance and increased vulnerability in the event of a data breach.
Cross-border data transfers
Legal practices often involve cross-border cases where data may need to be transferred internationally. GDPR imposes strict conditions on such transfers to ensure that data receives an adequate level of protection, requiring law firms to implement appropriate safeguards like Standard Contractual Clauses (SCCs) or ensure that the destination country has an adequacy decision.
Transparency and accountability
Transparency in how data is collected, processed, and shared is a core principle of GDPR. Law firms must ensure that clients are informed about their data processing practices through comprehensive privacy notices. Additionally, maintaining detailed records of processing activities is essential to demonstrate accountability and compliance during audits or investigations.
Mitigating GDPR risks: Best practices for law firms
Conduct regular data protection impact assessments (DPIAs)
DPIAs help identify and mitigate risks associated with data processing activities, especially when introducing new systems or processes. Law firms should perform DPIAs when engaging in activities that might significantly affect the privacy of data subjects.
Implement rigorous data governance policies
Developing and enforcing internal policies on data handling, access controls, and data sharing is essential. This includes establishing clear guidelines for reporting misconduct or regulatory breaches while ensuring compliance with data protection laws.
Training and awareness
Regular training sessions for all staff members—both legal and administrative—on GDPR compliance can significantly reduce the risk of inadvertent data breaches. Emphasising the importance of data privacy and the legal implications of non-compliance is key to creating a culture of accountability.
Engage data protection officers (DPOs) and legal experts
Designating a Data Protection Officer, or consulting with data protection experts, can help law firms stay abreast of evolving regulations and implement best practices effectively. A DPO serves as a point of contact for data subjects and regulatory authorities, ensuring that all processing activities are monitored and compliant.
Review and update client consent and contracts
Ensuring that client consent forms and contracts include clear terms regarding data processing, further processing, and data sharing is essential. This helps manage expectations and provides a legal basis for data processing activities under GDPR.
Even when personal data is used for purposes beyond its original collection—such as reporting professional misconduct—law firms can remain compliant by aligning with public interest and legitimate interest provisions. Ultimately, proactive risk management, ongoing staff education, and a commitment to data protection are essential strategies for legal professionals operating in a data-driven world.
