Care & Feeding of the Law Office Staff

By Jim Calloway

The smaller the firm, the more hats the lawyer must wear. These include a dual role as management and labor, as well as chief executive officer, director of finance, director of marketing, and chief information officer. Let’s discuss the lawyer as employer and as the director of human resources.

As a solo or small firm lawyer, you are an employer. (You either should be an employer or be thinking about becoming one.) The problem with many solos and small firm lawyers is that they’ve either never worked for someone else or they didn’t like it. It could be that they’ve never really been a part of a positive employer-employee relationship, at least in their adult careers.

Some lawyers in sole practice make the decision to operate without staff. This may be done for a variety of reasons. These lawyers may be very proficient with technology and do not need secretarial assistance. They may want to have a limited or part-time practice and therefore do not want to have the overhead that comes with staff. They may have had so many bad experiences with staff that they simply don’t want to spend their energy managing people, or they may simply not generate enough income to pay staff. But most lawyers find having someone to help with filing, file management, typing, telephone answering, scheduling, and a host of other tasks makes them more efficient and allows them to concentrate more on the tasks that only they can do.

In a small firm practice today, you and your employees must function as a team. This will be even more important in the future. Being a good team requires many things, but to use a clichéd sports metaphor, it generally starts with a good coach.

You want team members with skill, education, intelligence, and experience. For the small firm lawyer, attracting and keeping the best talent is a challenge. Generally speaking, a solo or small firm lawyer will not be able to compete with the largest law firms strictly on compensation for very good employees. (Luckily, those in smaller communities have a geographical advantage for the local employee.)

Assuming you want to develop excellent team members as employees, it would seem that you have two options. You can develop a system where there are clearly defined procedures and training materials. Such a system will allow replacements to easily step in when the time comes. Or you can develop a good place to work where employees feel well-treated and fairly managed. You can provide a workplace where fair rules and treatment are tempered with a bit of flexibility when it is needed to support the employee’s personal and family life.

So, which office system do you want? This is obviously a trick question. The answer is: both.

We’ll talk about both approaches, but first let’s talk about motivation.

What Motivates Employees?

A primary motivation for any of us to work is money. We work for our pay. There are very few law office employees who would not leave tomorrow if offered a chance to triple their salary. Luckily, that isn’t likely to happen. The most interesting point is that surveys and studies of employees often rank compensation surprisingly low. Security, possibility of advancement, enjoyment of the type of work, and other factors often outweigh pay. Benefits also can be a motivating factor. Medical insurance is an expensive, but prized, benefit today.

Training motivates employees because people who can do their jobs more effective are happier. Try to eliminate minor annoyances and day-to-day frustrations; even something as simple as a “cheat sheet” on keyboard shortcuts ( see example) can be a helpful tool. Training can consist of bite-sized pieces like a “learn and lunch.”

Threats are not an effective motivator. Fear is destructive and not a useful force over the long haul. This is a dead-end strategy. Far too many lawyers deal with their employees in the same way they deal with a recalcitrant opposing counsel or a dissembling witness. The ultimate result from this practice is that the best employees recognize that they have other options and move on, leaving you with the less capable, the easily intimidated, and those with a poor sense of self-worth.

Bonuses and profit sharing can provide motivation, but a lawyer-employer must decide on objective versus subjective criteria. Employees tend to focus on what others have received instead of what they did or didn’t do. Some can see this as a system that rewards sycophancy. “If you don’t do X, you won’t get a bonus” transforms this from a reward to a threat. Profit-sharing spawns ethical issues. Can paralegals be paid based on the profitability of the firm? The answer is a qualified yes: Law firms may give paralegals pensions, profit-sharing plans, and salary increases based on the firm’s profitability. These benefits can be given based on individual performance and/or the firm’s profitability. However, a firm may not base compensation on the outcome of a case. Several other jurisdictions agree with this conclusion: Philadelphia Bar Association Professional Guidance Opinion 2001-7 (2001); the Utah State Bar Ethics Advisory Opinion Committee UT Eth. Op. 02-07, 2002 WL 31079593 (Utah St. Bar); the New York State Bar Association Committee on Professional Ethics (N.Y. St. Bar Assn. Comm. Prof. Eth.); and the South Carolina Ethics Advisory Committee SC Adv. Op. 97-02, 1997 WL 582907 (S.C. Bar Eth. Adv. Comm.).

Communications Issues

Be polite and respectful to everyone. Never “chew out” an employee in front of others. If correction or negative feedback is required, do it in the privacy of your office. If the issue is of such magnitude that everyone has to be informed or reinforced about an office process, you should first talk to the offender privately and then inform him or her that you will be discussing this procedure with the rest of the employees to make sure that everyone understands. The message “you didn’t understand this and it was a problem, so I have to make sure everyone else does” is a far more positive one than “you goofed up, and I’m going to make sure everyone knows you did.”

Any major decision can be viewed as a threat if not communicated clearly. Establish official lines of communication where everyone gets announcements to prevent misunderstanding. This could be by meeting or memo or intranet. Hold regular “all-hands” meetings at least quarterly. Even if you make up your mind about a company policy matter, just say “maybe” or “probably” until you can announce it in an all-hands meeting or via the established official channel.

Job Stress

You know it. You live it. But let’s all say it together: A law firm is a stressful place to work. You owe it to yourself and your staff to minimize the stress, not maximize it. It’s very easy to blow up about mistakes, let off a little steam on the miscreant employee, and move on to the next projects, without realizing that you have left a large burden of hurt feelings, guilt, and anger in your wake. Reducing your employee’s stress will increase retention, particularly with employees who have worked in other law offices.

Use “stress busters” to achieve a happy office. Be positive. Smile. Do something fun and unexpected for the staff at least once a year. Bring everyone together in the morning and announce that it is “Well-Tuned Machine Day” in the office and that the staff will be honored as being a well-tuned machine by demonstrating that they can finish everything they need to get done today by 3:30 PM so they can all leave then. End with “and, oh, yes, everyone gets a $50 bonus today . . . well, $50 less taxes,” and you will have a guaranteed success. Oklahoma City attorney Mark Robertson, 2004-2005 Chair of the American Bar Association Law Practice Management Section, created the “Take Me out to the Ball Park Day.” Every spring his firm closes the office for an afternoon to attend a baseball game. Have a staff luncheon where everyone is not allowed to discuss work. Celebrate birthdays. Close early on a Friday afternoon. Apologize if you lose your temper.

Differences in Age, Gender, and Culture

Avoid thinking that your way is right and others are wrong. Even if you are the sole employer, manager, hirer, and firer, you have to accept your employees for who they are. They are fallible human beings. Do some study in the area of generational differences. Accept that a 20-something’s view on things will be different from those of wartime’s “greatest generation.” The idea of personal loyalty to an employer just because one receives a paycheck would be viewed very differently by two focus groups picked from those generations. Some people react very differently to stimuli based on their background and culture. Ethnic differences may significantly impact commu-nications issues and reactions to being disciplined or corrected.

Hugs. I go into lots of law offices. Some of them have almost a culture of hugging. “We’re like family. We hug all the time.” While this may be fine with most involved, there also may be someone who is made uncomfortable by the practice. You will soon find a Generation X employee who thinks that hugging people just because you work with them is an absolutely alien concept. You might not like to hear a trial lawyer describe the office hugging policy in court should there be employer-employee litigation. Some will view this as ludicrous, but cross-gender hugging in the office should now be of the shoulder-to-shoulder “good job” type rather than the front-to-front “slow dancing” type.

Financial Reward Plans

Bonuses, profit sharing, retirement plans, longevity pay, and similar reward plans can be expensive to administer and run, but not nearly as difficult as a few years ago. Allowing only a percentage of the retirement plan to vest in the first few years should provide some incentive for employees to continue employment. Bonuses are better than raises in that they do not have to be equaled each year and worse than raises in that the employees feel that they cannot count on them. Profit-sharing plans may not work where a lawyer wants to maintain privacy about his or her income. You must decide the extent to which you are comfortable with your books—and your compensation—being open to employees. Profit-sharing plans are best when objective and based on firm financial performance that everyone understands. If you just want to award additional compensation based on profitability, attitude, and a number of other subjective factors, just call them quarterly (or semiannual) bonuses. Always keep track of the “bonus history” of each employee—you may not recall the past exactly, but they will.

If you decide to have a profit-sharing plan, it will focus everyone on the firm’s profitability, both for better and for worse. You may have to defend that three-day business trip to Las Vegas for a CLE program.

Office Policies and Procedures Manual

Even though many small firm lawyers may dislike the idea of documenting office policies in writing, it is a critical part of the “fairness” equation. The twenty-first-century lawyer cannot afford to act as if no disgruntled employee could ever successfully sue a lawyer-employer. It happens frequently these days.

Draft a hypothetical 15- or 20-year calendar and see what incentives will be there through that time period. For example, your paid-leave policy may increase when an employee has been with you five or ten consecutive years. One may vest fully in the retirement plan after four years. A 20-year employee may have voluntary retirement contributions matched two-to-one instead of one-to-one up to a certain limit. If there are years when there are no incentive events, just make some up. One example might be the “Lucky Seven”—an employee who completes seven consecutive years’ employment with the firm shall be granted an additional two weeks’ pay to be paid in the next regular pay period after the anniversary date of hire.

In a similar vein, you should keep a personnel file for each employee and make entries in it, both positive and negative, as circumstances warrant. Always provide a copy of such entries to the employee with a written notice that he or she has ten days to provide a written response or explanation, which will also be a part of the file.

Obviously, paying employees for overtime work will be both fair and popular. It may also be expensive. However, with the passage of recent federal legislation, it also may no longer be as ambiguous a situation as it was in the past. (For more information on overtime pay, see the article The Lawyer as Employer: Why Do They Keep Changing the Rules? »)

The Bottom Line

Be a nice boss and a fair employer, attempting always to treat others with respect and being quick to apologize and make amends when you fail. Go out of your way to maintain a safe, positive, professional, and non-threatening workplace. Listen carefully to your employees’ requests for workplace improvements, and err on the side of granting them when you can (e.g., providing a bottled-water dispenser even though the tap water doesn’t taste that bad to you). Pay special attention to office ergonomics and the possibility of repetitive stress injuries. You want to avoid both employees trying to work in pain as well as workers’ compensation claims.

Be aware of the fact that law offices tend to be stressful places to work. Do your part to avoid unnecessary stress, both by your attitude and your actions. You may be unconcerned about starting the final proofing of a brief in the afternoon on the day it is due—some lawyers actually get a little adrenaline charge out of this—but it will drive your staff nuts, particularly those organized and efficient types we like to see in our law offices.

Handle employment matters in writing, starting with the letter that new hires receive on their first day congratulating them and outlining their pay and their benefits with references to the office policy manual (and their “at will” status if applicable). The lawyer who has no written office policies manual or employee’s manual has a fool for a human resources director.

You may think preparation of an office procedures manual is a waste of time, but you won’t think so when a valued employee is suddenly gone. Investing a few hours in developing this each month can lead to significant gains in efficiency. It will also make it easier to safely delegate tasks to less-skilled junior staff. If employees tell you that they think you are preparing this so you can easily replace them, tell the employees candidly that you don’t want to lose them but want to be prepared if you do. If you have a long-term employee who really seems offended or unhappy about this office documentation project, refer the employee to my online article “Indispensable People”.

Conduct regular reviews of each staff person. Discuss shortcomings and successes. This is very difficult but is a key to the employee’s believing that the workplace is fair. It is a cliché but nevertheless true that employees do what you inspect rather than what you expect. It should be known within the office that raises are considered on an employee’s anniversary date of hire or some common calendar date. In the same way, it should be known in the office when bonuses may occur. Mid-December annual bonuses are traditional and benefit employees with extra holiday expenses. You may decide on a quarterly or semiannual schedule. One exception to this rule is a large financial windfall to the firm. When this is collected, it is generally good to “share the wealth” at the next pay period with a bonus while everyone is excited about the good fortune.

Meet with a financial adviser about setting up a 401(k) or other firm retirement plan. Set reasonable vesting requirements and make it easy for a departing employee to transfer the balance to another entity for management. With all of the recent talk about Social Security and retirement, it is increasingly less likely that you will be able to maintain qualified employees with no retirement plan no matter how good the compensation you pay. The American Bar Association Members Retirement Program offers plans appropriate for the small firm, and ABA membership is not required ( www.abaretirement.com »).

Have a family-friendly workplace. Recognize that, for most employees, their job is only a means to an end and their family is of primary importance. Be as flexible as you can, understanding that other employees may attempt to take advantage for themselves if you are too generous with one.

MASLOW’S HIERARCHY AND EMPLOYEE MOTIVATION

Most of you have heard of Abraham H. Maslow, who developed the “Hierarchy of Needs” model in the 1940s and 1950s. His theory is that we must satisfy each level of need before moving on to satisfy the next one:

  1. Biological and physical needs (air, food, drink, shelter, warmth, sex, sleep, etc.).
  2. Safety needs (protection from the elements, security, order, law, stability).
  3. Belongingness and love needs (co-workers, family, affection, relationships, etc.).
  4. Esteem needs (self-esteem, achievement, mastery, independence, status, dominance, prestige, managerial responsibility).
  5. Self-actualization needs (realizing personal potential, self-fulfillment, seeking personal growth and peak experiences).

Others have added and modified Maslow’s work to reflect their opinion of our changing times:

  1. Cognitive needs (knowledge, meaning).
  2. Aesthetic needs (appreciation and search for beauty, balance, form).
  3. Transcendence needs (helping others to achieve self-actualization).

This hierarchy is easily applicable to employee motivation: If your employee feels in physical danger because your office is located in a crime-ridden part of town, it is doubtful that any incentive package will persuade that employee to continue in your employ for long. More about Maslow

Jim Calloway is director of the Oklahoma Bar Association’s Management Assistance Program. He can be reached at . This article originally appeared as a presentation at the 2005 Oklahoma Bar Association Solo and Small Firm Conference, © 2005 Jim Calloway. Reprinted by permission.

Copyright 2007

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