Balancing short-term benefits against long-term costs
One bright sunny day, Jack, a junior lawyer, discovers what could be a problem—Great Idea Inc., the big-potential startup corporate client for which he is working, does not have any organizational records. Jack’s job is to prepare Great Idea for a major venture capital investment. He has the Certificate of Incorporation that was filed in Delaware three years earlier, but the officers of the company say that their only records consist of a cloud-stored spreadsheet that shows the equity ownership upon which the three owners have agreed. Jack knows that the Delaware corporate statute requires an organizational meeting for the election of directors and then board action to issue shares and elect officers.
Jack calls out to Jill, another junior lawyer, at a nearby table in their open co-working space and asks if the failure of Great Idea to adhere to these formalities is a problem. If shares were never issued in accordance with the statute, how could there be any stockholders? If directors were never elected, how could officers have been appointed? If officers were never appointed, are all of their executive actions since formation void? Jill has not encountered this problem but recalls that Dottie, a more senior associate, had these issues with a startup company that the founders organized themselves through an online do-it-yourself commercial site. Jill cautioned Jack that various corrective actions would be necessary before the venture capital deal could move forward.
Jack and Jill walked down the hall and asked Dottie for advice about whether these defects from several years ago could be fixed. Dottie referred Jack and Jill to a set of documents with which Jack could ratify the previous actions by the de facto stockholders, directors, and officers.
This type of exchange happens every day within law firms, law departments, and other groups of lawyers. There is little discussion, however, of the best way for this common knowledge-sharing practice to work in a totally remote or “hybrid” working arrangement. This question deserves much more attention in the frequent discussions of the inevitability of new totally remote and partially remote (i.e., hybrid) working arrangements for lawyers. There are many articles written about the opportunities to save rent and other occupancy costs if lawyers and other office workers are physically present in their offices for only part of the normal work week, if at all. See, e.g., Jordan Rothman, “Law Firms Can Save Tons Of Money By Continuing Virtual Work,” Above the Law, June 16, 2021 (young lawyer emphasizing savings on real estate and benefits of reducing or eliminating commute times); Barbara Dunn, “Reset: The Future Law Firm Workplace,” Law Practice Today, Apr 15, 2021 (principal of Gensler architectural firm discussing savings that will accompany changes in law firm workplace).
Unless legal employers find better ways to recreate the in-office experience for their WFH lawyers, there will be negative impacts on, among other things, the training of junior lawyers, the collaboration among members of lawyer working groups, and the personal relationships among lawyers in the workplace.
Practicing lawyers frequently criticize law schools for not teaching law students how to practice law. See, e.g., Cameron Stracher, “Meet the Clients,” Wall St J, Jan 26, 2007 (law schools give false impression that law practice is an intellectual debate); Ed Poll, “Would apprenticeship make for better lawyers?,” LawBiz, Mar 5, 2007 (advocating for on-the-job learning).
I do not intend to relitigate here the impractical approach of most law school education. However, it’s worth stating that in my many years of practicing law, I’ve yet to encounter another practicing lawyer who believes that new graduates can provide much value when they start their careers. (Is anyone aware of another licensed professional for whom substantial practical experience, whether as part of the educational program or separately, is not a prerequisite for licensing or certification—physicians, accountants, engineers, clinical social workers, teachers, veterinarians, barbers?)
Law firms have been very fortunate in their ability to give their new recruits on-the-job training while charging their unknowing clients for the many hours spent by the rookies in apprenticeship roles. The more sophisticated corporate clients are aware of this lack of value and often stipulate in their billing guidelines that they will not pay for any time spent on their projects by first-year associates unless approved in writing in advance. See, e.g., Bayer Billing Guidelines at 7 (“Bayer will not pay for fees associated with services provided by first-year associates on an engagement unless prior written approval of Bayer Counsel has been given for such services”; “Bayer will ordinarily not pay for trainees’ time”).
A lawyer’s initial years of practice are similar to other master-apprentice relationships. Just as a junior carpenter learns her trade by shadowing a master carpenter most of a work day, a junior lawyer learns how to practice law by observing and asking questions of more senior lawyers. Although I never worked on a construction site, I am confident that an apprentice carpenter frequently asks other junior carpenters for advice in the same way that junior lawyers often discuss projects among themselves when they go to a nearby Starbucks for a break.
Although it’s likely that junior lawyers will still “Slack” their co-workers for quick work advice when working from their spare bedrooms, it’s inconceivable that junior lawyers will have the same access to more senior lawyers that they have when they work “down the hall.” I remember mastering the skill of hovering outside a partner’s office and eavesdropping on the partner’s telephone conversations so that I would know precisely when to shoot into the partner’s office to ask for guidance on a pending project. With the prevalence of multi-office staffing in large firms, the days of close partner-to-associate supervision may be waning, but it’s worth striving to retain the benefits of same-office access, even if only doing so electronically is practical.
Remote work obviously makes impossible nearly all spontaneous interactions between apprentice lawyers and their supervisors. Employers can encourage supervisors to have regular “check-ins” with the remote junior lawyers on their teams, but it will be much harder for a junior lawyer to seek impromptu guidance through unscheduled Zoom calls, for example, than it has been to seek advice from another lawyer who is sitting in close physical proximity.
Law firms and legal departments will no doubt try to recreate proximity electronically with always-on breakout rooms in Zoom, Slack channels, and other communication tools. Yet, how well is this working?
A professional-development director at a large New York-based firm recently confirmed to me that firms are struggling with how to eliminate the friction in the lawyer-to-lawyer communications that were previously done without any planning. Not surprisingly, she told me that senior lawyers showed little hesitancy in calling junior lawyers on their cell phones to ask questions, but that junior lawyers hesitated to “go upstream” and interrupt senior lawyers with what might be perceived as trivial questions. As a former managing partner, I view this as a massive long-term risk factor.
For most lawyers, practicing law is a team sport. There are very few lawyers who can work like solitary monks. Lawyers typically staff projects with one or more partners and then, depending on the size and complexity of the project, a senior or mid-level associate and then one or more junior associates and paralegals. It would be rare for a partner to be working by themselves on a project (and if this happened, a financial analyst would be quick to counsel the partner about the importance of leverage (i.e., the ratio of non-partners to partners) to profitability. Furthermore, in many cases, it would be malpractice to have a junior associate working on a project by themselves.
In addition to the training objective, the close proximity of members of a “real-time” working group facilitates the efficient exchange of important information related to strategy, fact development, client issues, and billing practices. With multi-office teams, this exchange of information inevitably takes place in group video meetings and electronic messaging, but there is an obvious inefficiency with having to schedule online meetings vs. spontaneous informal get-togethers.
Subject-matter experts, so-called “SMEs,” are often an exception to the team approach. It’s possible in many situations for a seasoned tax lawyer, for example, to work remotely and then deliver their substantive advice to the remainder of the team by Zoom or email. This remote setup works in the short term for the senior SMEs but, from a training standpoint, is less than ideal for junior SMEs. It’s unrealistic to think that a senior SME is going to book an appointment to review changes with a junior SME every time that the senior SME provides advice to the rest of the working group.
The well-known organizational psychologist Adam Grant uses a sports metaphor to categorize types of work roles. People who work alone are like gymnasts. He divides those who work more closely with others into two groups: those who work like members of a soccer team where the workers are contemporaneously relating to the others on the team, and those who work like members of a relay team where workers complete their own tasks and then complete a handoff to other workers as smoothly as possible. See Adam Grant, “The Do’s And Don’ts Of Returning To The Office,” Ted Worklife (podcast), June 7, 2022.
Depending on the nature of the legal project, the lawyers generally would be members of a soccer team or relay team, but gymnasts far less frequently.
As of 2020, only about a quarter of lawyers in private practice are solo practitioners. See Karin Conroy, “2020 Solo & Small Firm,” ABA TechReport 2020, Nov 2, 2020 (summarizing respondents of 2020 ABA Legal Technology Survey Report). The rest have another lawyer whom they can consult when they do not know the answer or when they want to “bounce an idea” off another lawyer. This can certainly happen over email or the telephone, but when lawyers are in the same physical location, it happens more often and at a deeper level. See Post 260 (Randy Kiser reviewing literature on face-to-face versus electronic communication, showing that the latter filters out many important cues that lawyers tend to underestimate).
More fundamentally, the move to remote work is bound to impact our interpersonal relationships. Here, I’ll subdivide this broad but crucial topic into four domains: friendships, mentoring, work assignments and promotions, and what I’ll call real-world experiences.
With all of the talk about the Great Resignation, legal employers are no doubt discussing ways to increase retention. Two Yale management professors suggest that friendships at work promote retention and other positive workplace characteristics: “[P]eople who have a ‘best friend at work’ are not only more likely to be happier and healthier, they are also seven times as likely to be engaged in their job. What’s more, employees who report having friends at work have higher levels of productivity, retention, and job satisfaction than those who don’t.” Emma Seppälä & Marissa King, “Having Work Friends Can Be Tricky, but It’s Worth It,” Harv Bus Rev, Aug 8, 2017.
The concept of the virtual “water cooler” may be the next big thing. A virtual water cooler’s purpose is to replace the coffee station or other in-person gathering place with an online forum for casual interactions among employees. See, e.g., Aakash Gupta, “11 Awesome Virtual Water Cooler Tools for Remote Teams,” SIWOM, Aug 26, 2021. For example, a company can assign team members to different online groups to discuss such topics as sports, childrearing, and other non-work issues with the intention of recreating the informal “chit-chat” that remote workers miss.
In an earlier essay, I explored the high degree of loneliness among lawyers. See Post 296 (noting lawyers #1 ranking). Fewer days in the office next to others make it more difficult for employees to have a sense of belonging. Yet, the costs extend to employers and overall productivity. According to a recent study summarized in the Harvard Business Review, “If workers feel like they belong, companies reap substantial bottom-line benefits. High belonging was linked to a whopping 56% increase in job performance, a 50% drop in turnover risk, and a 75% reduction in sick days.” Evan W. Carr, et al., “The Value of Belonging at Work,” Harv Bus Rev, Dec 16, 2019.
There is some early research about the ability to overcome loneliness and disconnection through electronic tools. Unfortunately, so far, the evidence suggests that the benefits of these activities tend to fade fairly quickly. See Benjamin Kaveladze, et al., “Social Interactivity in Live Video Experiences Reduces Loneliness,” Frontiers in Digital Health, Mar 15, 2022. Moreover, to the extent there are positive outcomes, it may depend on interactive electronic exchanges (vs. those many online group meetings during which “participants” turn off their cameras and perform household tasks or respond to email). Id.
Most legal employers tout their formal mentoring programs that typically pair a junior lawyer with a senior lawyer. See, e.g., Kristine L. Roberts, “How We Built a Mentoring Program that Actually Works,” Women’s Initiative Newsletter, Aug 14, 2018 (discussing mentoring program at Baker Donelson). Without spending time here debating the comparative value of formal mentoring programs and informal mentoring programs, it is probably safe to say that the formal programs will not necessarily suffer much from remote working. The mentors can still book the typically infrequent interactions through Zoom or for the days when both the respective mentors and mentees are in the same locations.
Informal mentoring, however, is certain to take a hit with remote working. And it’s arguable that informal mentoring is more effective. As one Jones Day associate observed, “[t]hese informal mentoring relationships are often deeper, more beneficial, and longer-lasting than those set up through [a] formal mentoring process.” Nicole C.H. Massey, “Mentoring Outside the Box: Improving Law Firm Formal and Informal Mentoring Programs,” The Bencher, Jan/Feb 2011 at 19.
This is certainly consistent with my 40+ years of experience. While formal mentoring may be necessary to ensure that every junior person is covered, the mentoring relationships that develop naturally are stronger than those that are mechanically assigned. It’s possible that a senior lawyer will coordinate with a mentee when they will both be in the office as well as use electronic tools to “catch up,” but it will inevitably take more conscious planning than the spontaneous interactions that happen when everyone is on-site. Personally, my best mentors were the senior lawyers who asked me to join them for lunch when they were on their way out the door.
3. Work assignments and promotions
The “proximity bias” is front and center at most law firms with respect to assigning work and promoting junior lawyers: “the tendency for people in positions of authority to show favoritism or give preferential treatment to employees who are closest to them physically.” Arlene S. Hirsch, “Preventing Proximity Bias in a Hybrid Workplace,” SHRM, Mar 22, 2022.
There are probably still some large law firms that assign one or more associates to each partner with the expectation that the partner will keep them busy. Many other law firms rely on the informal practice whereby a partner directly contacts associates whom the partner chooses, and it is up to the associates to accept the assignment or gracefully explain why they are too busy or otherwise unavailable. This laissez-faire approach works well for partners but it can obviously result in a biased system under which certain associates never get the chance to show their worth. See, e.g., HLS Center on the Legal Profession, “The Allocation of Work,” The Practice, Jan/Feb 2017 (discussing how, without some type of nudge or intervention, familiar patterns of likeness tend to replicate themselves).
The totally remote and hybrid policies will force law firms to be more organized with the assignment of work, which should result in a more equitable allocation of work among junior lawyers. However, this will result in partners doing more of the “rush projects” themselves. In my years as a business lawyer in Big Law, I often received a phone call late in the afternoon from a client who was excited to say that they had just snagged a new acquisition and that they needed a letter of intent and related documents to be done as quickly as possible, but in any event, before I went home that night.
In an ideal world, I would have gone “down the hall” until I found one of the “good associates” who would be available to drop everything and help me prepare the documents. With fewer associates working close by, whether because the partners or the associates are working remotely, partners will need to do more of the rush projects themselves because finding a willing associate will take too much time.
Research has shown that employees who work remotely are promoted at the same rate as those working on-site. See Adam Grant, “The Do’s And Don’ts Of Returning To The Office,” Ted Worklife (podcast), June 7, 2022 (at 6:44). Time will tell whether this is true for law-firm promotions as well, particularly in a time when law firms are not growing and partner promotions are less common than in high growth times. If a powerful partner decides to work in the office every day even though the firm’s announced policy permits hybrid work, there will be few associates on that partner’s team who will not read that as a signal that they also need to be there if they expect to be promoted. Cf Kate Kelly, “A ‘Friend of Tom’ or ‘Can’t Be Bothered’: One Man’s Rules at Bank of America,” NY Times, May 14, 2021 (telling story of #2 executive at Bank of America who was “keeping score” on remote work).
Moreover, promotions to partnership are inevitably subjective decisions. Although law firm leaders often refer to total billable hours as a measure of “productivity,” not all hours are equal, and some junior lawyers are simply better than others at producing excellent work. Similarly, some lawyers show more ability than others at attracting and retaining clients and managing teams of others. It’s predictable that partners who witness the talents of associates on a daily or, at least, regular basis will be more likely to push those associates for promotion as opposed to associates whom they only see sporadically in-person or during occasional Zoom meetings.
4. Real-world experience
At Penn State Law, after working for decades as a business lawyer in a global law firm, I run a legal clinic that provides business-related legal services to startups and other small businesses throughout Pennsylvania. Since the pandemic, it’s become a beta site for hybrid work arrangements. There are three licensed lawyers on staff, and during the academic semesters, we have at least 20 law students who work at the clinic for credit. For the summer of 2022, we have 12 law students working full-time. and they must spend at least three days each week at the clinic’s offices, where they work together in a large open co-working space.
Although our co-working experience is not directly related to the remote-work challenges described above, it is worth mentioning our co-working experience because it illustrates the extent to which junior lawyers depend on interactions with other lawyers (as well as the rent-saving opportunities that are available with remote work). I initially required the students to be in the clinic’s offices every day of the workweek, but I decided that our clinic would be a great opportunity to test a hybrid arrangement in a co-working space.
I could not be happier with our hybrid experience. The students are remarkably collegial in their co-working space. They frequently look up from their laptops and ask their colleagues questions, often about legal subjects that they have not yet studied or about bizarre situations that would never be covered by their academic courses. When their student colleagues cannot answer their questions, the students next turn to the two staff attorneys who are in nearby offices for advice. When the staff attorneys cannot provide the answer, a group of them typically descends upon my office to tap into my many years of experience. Fortunately, with my own diverse legal experience, I can usually suggest a way forward for the client.
Yet, there have been some surprises. For example, I’ve observed that the staff attorneys work so closely with the students that the attorneys often choose to work side-by-side with the students in the co-working space rather than stay in their offices. In short, closer appears to be better, or at least more efficient.
Our student employees can spend two days each week working away from the clinic’s offices. However, whenever they are working remotely, they need to have a daily 15-minute, check-in Zoom meeting with one of the staff attorneys at mid-day. I subscribe to the view that it is important for remote workers to have a regularly scheduled meeting with a supervisor at which they can seek answers to simple questions and review their progress when they are working remotely. See Adam Grant, supra (discussing the value of “over communicating” through frequent, scheduled meetings). As expected, Mondays and Fridays are the most common remote workdays, but the students need to work it out among themselves so that there are never fewer than three students on-site on any given day in order to cover rush projects and meet with any “walk-in” clients.
As a veteran of decades of working in a firm with lawyers who had their own individual offices, I am now a fan of open co-working spaces. For sure, there are times when lawyers can benefit from “quiet time” such as when they are drafting challenging documents or holding client meetings. When solitude is important, our student interns spread out by themselves in the co-working space and occasionally use headphones. We also have a few tiny rooms that can be used for client video calls. Of course, the students can also work remotely whenever they have a big writing project. It’s apparent, however, that much of their drafting can be done in close proximity to their colleagues. Although complete solitude can sometimes be desirable for certain work, there are likewise counterbalancing advantages to co-working arrangements, such as being able to get quick advice with such common inquiries as “has anyone drafted a ‘stay-bonus’ contract for the CEO of a business that is being sold?”
In the same way that a shop manager walks the factory floor, I walk through the co-working space every few hours just to see if there are any issues with which I could be helpful. At least 75% of these issues relate to topics not covered by any law school course and reinforce my belief in the master-apprentice model: What happens if the parties to an executed contract never attached the exhibit that lists the assets being sold? What happens if a startup company issues more shares than are authorized in its charter? What happens if a new company never got a co-founder to assign all of her intellectual property rights to the company before she quit? What happens when a bank insists that an investor subordinate her investment note to the bank debt?
Our beta test this summer with clinical law students supports my hypotheses regarding the importance for junior lawyers of personal interaction for training, collaboration, and interpersonal relationships. Senior lawyers, in contrast, receive fewer benefits from in-person “face time,” primarily because they need less training and, in many cases, already have personal networks. Employers still need to be concerned with senior lawyers, however, with respect to designing schedules and implementing tools that will foster collaboration.
* * *
Although totally remote and hybrid work arrangements present a big opportunity for employers to save on rent and other occupancy-related expenses, law firms and other legal employers would be wise to use at least some of their savings to invest in ways to reduce the inevitable adverse impact that remote working will have on the training of junior lawyers and on various workplace characteristics that are important to productivity and retention.
These future investments may relate to technologies that have not yet been invented or they may take the form of such traditional “bonding” activities as free in-office lunches, lawyer off-site retreats, and group public-service projects. However accomplished, employers should be conscious of these “people issues,” not just the short-term occupancy savings that are available.