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ANALYSIS: Who Are ‘Tech Lawyers’? We Asked Them Directly.

June 30, 2021, 9:01 AM

The results are in: “Tech lawyers” are very much a thing, and they juggle a wider variety of legal issues than one might imagine. Responses to Bloomberg Law’s 2021 Technology Transactions Survey, provided by attorneys who draft, negotiate, or advise on technology-related contracts or legal matters, reveal some surprising insights into this rapidly growing field of practice.

We wondered about the phrase “tech lawyer” itself: In response, roughly three-quarters of survey respondents said they would describe themselves as such. With about half of respondents working in-house at a corporation and 43% practicing at law firms of varying sizes, the results serve as a window into the busy world of the average tech lawyer—a world that requires them to deliver legal advice in many different specialty areas, depending on whom they are advising and the most pressing issues of any given day.

Tech Lawyer Work and Clients Vary

Although respondents, on average, spend most (60%) of their time working on “technology-related matters,” this figure by itself does not do justice to the sheer breadth of assignment topics that a tech lawyer may be called upon to address. Most of the survey respondents deal with the broad legal areas of commercial contracts (68%), technology law or technology transactions (63%), and corporate law (58%), with copyright and trademark law (48%) falling just short of a majority response. However, these are just four of more than three dozen practice areas that respondents reported contributing to: patents, compliance, and M&A each came in at above one-third of all replies; e-commerce, business and tort litigation, and labor and employment each surpassed the one-quarter mark; and the remainder of answers ranged from real estate to family law.

Among both in-house and law firm respondents, more than three-quarters (77%) have an employer or client in a technology industry. Even so, there is significant diversity among the industry subject matter tackled by tech lawyers. As one would likely expect, software (65%) and cloud computing (55%) lead the way, with more than a majority of respondents indicating their involvement in each of those industries. But a substantial number of respondents also conduct legal work related to IT and outsourcing services (43%), big data (39%), internet of things (37%), AI and robotics (36%), online commerce and new media (35%), computer hardware (34%), and telecommunications (33%), with about a dozen more industries coming in at above 5% each.

When law firm respondents were asked which types of clients they typically provide technology-related legal advice to, an astounding 81% selected technology sector companies. But a majority (57%) of them also serve clients in non-technology sectors. Some notable law firm client types include venture capital funds (25%), non-venture capital private equity funds (24%), and universities and research institutes (21%). These data show that tech lawyers at firms have their hands full with a wide assortment of client organizations.

Another development confirmed by our survey: 65% of law firm respondents belong to a technology-focused practice group at their firm—an impressive number that illustrates the increase in the prevalence of these practice groups over recent years.

Types of Tech-Related Matters and Contracts

Respondents were asked about which types of technology-related legal matters they typically work on. The most prevalent response was “terms of service, terms of use, end-user license agreements (EULAs), and privacy policies,” with 63% of respondents selecting that category of tech matters. The second most common response, selected by 55% of respondents, was data management. (Note: These top two results are consistent with responses we received regarding tech lawyers’ top challenges and concerns, which will be the subject of a forthcoming analysis article).

Rounding out the majority responses were “patent, software, content, and trademark licenses” (52% of respondents) and cloud computing (51%). Widespread business migration to cloud computing, which often entails intellectual property licensing, has been linked to the increased adoption of cloud-based security solutions. It therefore follows logically that our survey data would show similar percentages of tech lawyers who work on the closely related legal matters of cloud computing, licenses, and data management.

More than 40% of respondents selected “strategic alliances and partnerships” or mergers and acquisitions as types of tech-related legal matters they typically work on, which corresponds with the booming M&A market activity involving tech targets that we’ve been seeing since 2020.

When it comes to contracts, confidentiality agreements are here to remind us how important they are to every type of transactional matter that we lawyers handle—and the technology space is no exception. When we asked which types of contracts respondents draft and negotiate most often in their tech legal work, the overwhelming winner, selected by 77% of respondents, was confidentiality agreements. The runners up—which line up with the responses regarding the types of legal matters most typically handled—were license agreements (71%), services agreements (67%), and terms of use/terms of service (62%). Although often provided to customers in the form of “click-through” agreements, terms of use/terms of service may contain important provisions relating to privacy, cybersecurity, and data backup, especially in light of increased reliance on cloud infrastructure.

Forty percent or more of respondents also selected purchase agreements, cloud computing agreements, and IP assignments. Technology transfer and assignment agreements were selected by 37% of respondents, followed closely by asset purchase agreements at 34%.

There Has Been, and Will Be, More Work

Consistent with general market trends in the tech space since the start of the pandemic, 57% of our respondents reported that the pandemic has brought an increased workload, with more than one-fifth of respondents saying their workload has increased “significantly.” The impacts the pandemic has had on the demand for more tech and the workload of tech lawyers seem unlikely to subside any time soon.

And lately, discussions around tech-related workloads seem to have centered around a pandemic of another kind: ransomware. In the aftermath of a series of devastating cyberattacks on U.S. infrastructure providers and supply chains, attorneys will likely need to focus even more of their attention on matters relating to data security, breach notification, and cyber insurance. Tech lawyers who work on software service and development transactions will be particularly affected by the Biden administration’s new regulatory framework aimed at strengthening the cybersecurity practices of federal government contractors.

All of this serves as a reminder that the work of tech lawyers is increasingly critical to keeping the world we live in running.

With assistance from Linda Ouyang.

Bloomberg Law subscribers can find guidance on software license and cloud computing agreements, data security compliance clauses, and other technology transaction matters on our Practical Guidance: Information Technology resource page.

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