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July 22, 2022 Articles

Thoughts on Practicing Law after COVID-19

Firms that facilitate remote work on an equal basis with “the office” will have a significant advantage in attracting and retaining legal talent.

By James M. Beck

Almost everyone wants to believe that the COVID-19 pandemic is over. Unfortunately, it is not. The current United States daily case count is much more as of this writing than on this date in 2020. This author tested positive in early May, despite being quadruple vaxxed, but had only mild symptoms, probably for the same reason. The COVID-19 virus does three things—infects, replicates, and mutates. Give it an opening and it will do that to me, you, and everyone else. People can say “COVID is over” enough times to convince themselves, but repetition does not make anything true. Science is Cassandra-like, true even when not believed.

China is Exhibit A. Take the initial success of China’s prior zero-tolerance COVID-19 policy, couple it with reliance on domestic Chinese vaccines that, while reasonably effective by historical standards, are insufficiently effective to combat increasingly transmissible COVID-19 mutations, and China ends up on the precipice—with a huge population neither effectively vaxxed nor naturally immune. The more infectious COVID becomes, not only is China’s zero tolerance harder to maintain, but the public health consequences of failure become increasingly dire. Short of a massive vaccination campaign with more effective RNA vaccines, one strains to see how China exits its current COVID-19 treadmill.

Those of us in the United States benefited from vaccines with effectiveness rates topping 90 percent, but the virus’s successive mutations keep chipping away. Due to vaccine manufacturers’ advanced technology, it is reasonable to expect new vaccines specifically targeted at specific mutant COVID-19 variants—dramatic proof of evolution/natural selection in real time. It is easy to imagine COVID-19 vaccination scheduling becoming annual, like flu shots. Still, Americans seek to convince themselves that the pandemic is over, despite daily new American COVID-19 cases exceeding 50,000 [subscription required] (and rising), over 350 Americans still dying daily from the virus, and fears of a new, 100-million-infection COVID-19 fifth wave later this year. While it is easy to pretend that COVID is in the rearview mirror, the pandemic remains closer than it may appear.

Law firms are probably no better or worse than everyone else who is whistling past the COVID-19 graveyard. Across the country, law firms have been reopening their offices. Anyone who has seen the play Hamilton probably remembers King George III saying, “Good luck.” For a variety of reasons, it is quite unlikely that the legal world can, or will, return to five (or more) days a week working in massive and magnificently appointed centralized law offices.

Start with the bottom line. The large footprints of pre-COVID-19 downtown legal offices are quite expensive to maintain. Next to associate salaries (which is another story altogether), real estate and office maintenance costs are most law firms’ biggest expense. But in a modern-day variant of “How Ya Gonna Keep ’Em Down on the Farm (After They’ve Seen Paree)?,” the pandemic required law firm personnel—from partners on down—to learn how to work remotely and to change many prior habits. It is not a big surprise that most of them like technologically assisted remote work. Why waste hours a day fighting traffic jams, mass transit snafus, and, worse, going to large, centralized offices, when remote work offers a 15-second commute? Not only are these large offices money pits, they are comparatively inefficient.

Back when the COVID-19 pandemic started, many law firms implemented retrenchment plans, expecting that business was going to crater. That never happened. In fact, lawyers ended up working more hours—not fewer. Why? Not only did demand for legal services stay strong, but freed from the tyranny of the daily commute, lawyers had more time to devote to lawyering. That is one big reason for the sharp reversal in firm attitudes toward paying for their employees’ home office technology expenses. Early in the pandemic, many firms were extremely skeptical of authorizing anything. Now just as many firms affirmatively offer individual budgets and other incentives so that work-at-home employees can obtain better and more secure hardware and internet bandwidth.

There are other significant benefits of remote work. The ability to personalize schedules is a big deal, as many law firm employees are middle-aged, meaning that they have to balance both child and elder care. Having to commute to a downtown office for work only exacerbates the child care/elder care squirrel wheel. Some of the commuting hours saved through remote work also become personal time. Further, remote work reduces everyone’s personal costs in terms of gas and other travel expenses, smaller legal wardrobes, city wage and other taxes, buying lunch, etc. In addition to being more efficient for most people, remote work is also considerably cheaper.

The question of home offices versus central offices is one that will probably push large law firms to evolve due to COVID-19-driven experiences. While central law firm offices will continue to have their place, the pandemic demonstrated how it is no longer essential that everyone work regularly in such offices. To start, firms can reduce substantially the number of conference rooms, given that most meetings and depositions are capable of being conducted remotely [subscription required]. While that is not true of actual trials, those proceedings have never occurred in law offices anyway.

Most clients now prefer remote meetings to in-person meetings. Of course, they would! It is far cheaper than paying to fly lawyers across the country (or the world). Whatever benefit once accrued from having clients come to downtown skyscrapers to enjoy an impressive conference room view has pretty much disappeared, because they are more aware than ever of who is paying for everything. The pandemic having demonstrated a viable alternative that saves client money, they are much more careful in weighing travel costs.

Courts also find remote conferences and hearings more efficient. Attendance can be from home or the office, but either way results in reduced client costs and court time. Much less gear-up is needed when not attending in person with trial bags full of material carried by support staff tasked with finding whatever might turn out to be necessary. The massive cost savings of [subscription required] remote proceedings of all sorts ensure that clients will require use of remote technology whenever possible—possibilities that will only increase as remote technology itself continues to improve in response to dramatically increased demand.

The same thing is true about individual lawyer offices. It makes no sense, with many or most lawyers and other professionals routinely working remotely, for each and every person also to have a permanent office. This article, like almost everything else this author has written during the past two-plus years, was prepared entirely remotely. Most of what most lawyers do these days involves thinking and writing—activities much more affected by the online availability of computerized legal research providers than by physical location.

In lieu of shelling out large sums on rent and office maintenance, law firms will have to consider spending to enhance their remotely working employees’ access to top-of-the-line technology and services. Think quality printers, system security upgrades, and maybe even information technology house calls. One possibility would be, say, a $10,000 home office setup budget for partners, $5,000 for associates and other professionals, paid for with ongoing savings from vacating or subletting half of the downtown office. That will cause some angst among both the senior people, who like their palatial offices, and slightly less senior people, who aspire to such offices. Actually getting the work done efficiently, securely, and cost-effectively is more important than worrying about where the work physically takes place.

What about associate mentoring and “law firm culture”? The difficulties of doing both in remote work situations seem overblown. The mass tort teams in large law firms are already multi-office. Short of trial, most interaction between partners, counsel, associates, and legal assistants occurs remotely through email and messaging, phone, or video chat. These days, annual evaluations of legal personnel occur through computer programs with drop-down menus rather than face-to-face meetings, as was the case when the older generation started practicing law. Often the entire evaluation process is electronic. When not, evaluation is one function that the smaller central offices of the future can accommodate.

Purely cultural aspects of law firms do not need to change at all. While the pandemic itself may not be compatible with an annual firm retreat, a firm event at a museum, or a firm night at the ballpark, nothing about remote work precludes such events. But do firms really need in-office gyms and cafeterias, when remote workers can go to their own gym, walk in a nearby park, and prepare their own meals? Indeed, given how popular remote work seems to be among law firm professionals and staff, a refusal by law firm management to respect such preferences could be more corrosive of firm culture than anything caused by remote work itself.

Another justification for preserving central offices is so people can “walk down the hall” and exchange ideas about legal issues and other work-related matters. Frankly, a group-wide email blast (with follow-up) is more likely to succeed in obtaining such impromptu legal advice than asking the graybeard down the hall, who may (or may not) have encountered a similar problem 15 years ago. Today, if a firm’s written work product is not easily electronically available to anyone willing to run a search, something is wrong with that firm’s technology. Conversely, an office that largely works remotely may well be more meritocratic and less prone to the cliques, daily microaggressions, and informal work-assignment patterns that all too often hamstring diversity efforts. At best, this rationale seems to be a wash.

For all these reasons, it is likely that what the Black Plague did to feudalism the COVID-19 pandemic will eventually do to the main-office-centric model of legal work. Too many law firm professionals, now used to working remotely from home, find remote work to be more efficient, cheaper, and more consistent with their preferred lifestyles. Observers of the legal market already view mandatory return-to-office policies as a good way to “thin your law firm’s head count” [subscription required]. Firms that facilitate remote work on an equal basis with “the office” will have a significant advantage in attracting and retaining legal talent.

James M. Beck is a senior life sciences policy analyst at Reed Smith LLP in Philadelphia, Pennsylvania.

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