By Amaris Elliott-Engel, originally published in The Daily Record on October 7, 2020.
Lawyers and remote work: ‘No universal truth’
Kevin J. Mulvehill, a partner with Phillips Lytle LLP and the firm’s Rochester office leader, says that there is no “universal truth” on whether lawyers and law firm staff are more productive working from the office or working from home.
“Historically, in the legal industry everyone has been slow to embrace the trend for remote working and working from home” due to concerns about protecting client confidentiality and proprietary information and for compliance reasons, Mulvehill says. Due to improvements in cybersecurity, “the mindset of the industry is changing.”
After the pandemic forced all law firms in New York state to either work remotely or not work at all in March, “what we’ve seen is we have this ability and it has worked relatively well,” Mulvehill says. “In some cases, we’ve seen increased productivity. We’re becoming more accustomed to the work from home model. In the future, on a case-by-case basis, I think this will be here to stay.”
As local law firm leaders contemplate the future of working from home after the COVID-19 pandemic, some firm leaders report that they had remote work in place already and the effectiveness of that has just been reinforced by the public health crisis.
Jacqueline Phipps Polito, the Rochester office managing shareholder for Littler Mendelson P.C., says the labor and employment boutique’s practice is primarily online and it has a system in place where all documents are scanned in and available online.
“I was very pleasantly surprised at the ease we all went remote,” Polito says.
Polito notes that she even worked remotely full-time for multiple years because Littler’s Rochester office had run out of office space as that office transitioned between leases. Littler also has “flex-time attorneys” work remotely on the Littler CaseSmart platform, which provides data trends and case management to clients on certain employment matters.
These attorneys do not have billable hour requirements, work remotely all the time and get to control the amount of hours they work and when they work, Polito says.
“We also don’t have a policy requiring attorneys to come to the office every day,” Polito says. “Attorneys might decide to work from home a few days a week.
“I’m not sure we’re ever going to require anyone to come back into the office ever again,” Polito says.
Although attorneys at associate Duwaine T. Bascoe’s law firm, Abrams Fensterman, worked remotely from mid-March until mid-June, returning to the office was a little less complicated because it’s a relatively small firm.
“We were able to get back into the office a lot quicker than most other firms,” he said. But he thinks remote work is here to stay, and the court system has worked to catch up.
“The courts and the legal system have come along as far as virtual notarization and things of that nature to assist getting through these times right now,” he said.
Working remotely is “going to be the wave of the future,” Bascoe said. “Anyone who doesn’t see it is going to be playing from behind.”
Meghan DiPasquale, a partner with Ward Greenberg focusing on labor and employment issues, says that her firm at least for now will be having attorneys and paralegals able to work from home 100 percent of the time.
Attorneys and paralegals were set up to work from home already before the pandemic shutdown, and the firm transitioned administrative assistants to remote work and invested in upgrading the technology of any employees who might have spotty Internet or other issues at home, DiPasquale says. Administrative assistants are now back in the office because it is easier for them to handle essential office tasks on site, and social distancing can be safely accomplished with fewer employees, she says.
“Part of what COVID has taught us is that working long hours in the office is not the only business model,” DiPasquale says.
That said, DiPasquale says that there is deep desire for collaboration. “On a personal level we miss each other. But we also want to keep everyone safe.”
Mulvehill says that his firm now has some staff members working 100 percent on site, 100 percent remotely and some in a combination thereof.
However, he said client needs are paramount and the flexibility for remote work will have to give way if a client requires face-to-face meetings.
Mulvehill also says that some people will abuse working remotely. As a labor and employment attorney, Mulvehill says he assisted clients with problematic employees who are clearly not working because tracing software on their work computers will show no activity for hours at a time.
Mulvehill said another con of remote work is how to ensure attorneys have a way to access more experienced colleagues and virtually poke their heads into another attorney’s office to get their ideas about legal problems.
Polito agrees, noting that “everyone wants to feel that they are part of the team and you have to make that happen virtually.”
On the other hand, Mulvehill says remote work has decreased the time colleagues downstate in New York City are spending commuting.
Mulvehill and Polito also say remote work has decreased anxiety in staff members concerned about COVID-19 and their health.
Polito, DiPasquale and Mulvehill all say that a key factor of remote work is making sure their attorneys respect the labor law protections that non-exempt staff have. Their firms have established rules that attorneys are not to ask non-exempt administrative staff to work outside of their established hours.
Remote work can also be key to retaining valuable employees who have families and are struggling with child care during COVID-19, Polito, DiPasquale and Mulvehill all say.
It’s a short-sighted view to assume that employees can’t be productive working from home even if they have little ones, Polito says.
If the job is to get ‘X’ project done, what matters is that the project gets done well at whatever time the employee can get it done, and it does not matter that an employee is spending three to four hours during the day assisting their children with virtual learning, Polito says.
“We’re able to retain talent that we’d otherwise not be able to,” Mulvehill says. “We have parents of young children who are not in school or attending school virtually or remotely. Those parents otherwise wouldn’t be able to continue on at Phillips Lytle.”
Law firms have to be as flexible as possible right now, DiPasquale says.
“To lose someone right now that is a valued employee would be yet another major challenge in a very challenging time,” DiPasquale says. “We want to make sure that our people stay with us and also are happy.”
Amaris Elliott-Engel is a Rochester-area freelance writer.