Interruptions and distractions can lead to ethics pitfalls

December 2015 | Around the ABA

We’ve all done it: Started working on a project in the morning with good intentions and a strong focus, only to be distracted by emails, phone calls, texts or a quick check on our favorite news site. Before we know it, it’s time to go home with all the unanswered threads of the day swirling through our mind. And the project isn’t done.

A webinar called “Lawyer Interrupted: Ethical Risks of Working Amid Distractions and What to Do About Them” digs into the science behind how our brains deal with distractions and how to manage our time well to avoid violating ABA Model Rules of Professional Conduct.

Gloria Mark, a professor in the department of Informatics at the University of California, Irvine, has studied the science behind workplace distractions. Mark looked at people in real work environments, measuring their behavior as they do their work to understand the effects of multitasking, or shifting attention back and forth on tasks.

The average worker checks Facebook 21 times a day and email 74 times day, Mark says. Study subjects also wore cameras around their necks to capture human interactions in the workplace. She found that workers shift computer screens an average of 566 times a day, switching from a word document to email to a website, for example.

“The work that had formerly been done in scheduled face-to-face meetings might now be done at the desktop and particularly with email,” she says. Our attention duration is dropping, too. “People average about three minutes on any particular activity before switching to something else.”

Mark also found that people work on about 12 projects at a time, in 12 different “working spheres.” It takes about 23 minutes to return to our original project after three or more distractions, and informants report a high cost in reorienting to an interrupted task, she says.

“People interrupt themselves almost as much as they are getting externally interrupted from external sources,” Mark says.

How does this relate to ethical risks for lawyers?

Panelist Mike Weaver, a retired partner at Latham & Watkins LLP, says allowing interruptions to go unmanaged and not keeping accurate timesheets for completed work could be a violation of ABA Model Rule 1.4, as well as ABA Formal Opinion 93-379, which prohibits billing for time not spent on the client’s matter.

It’s critical that lawyers have the ability to properly capture their time and describe it on an internal basis,” Weaver says. “When you get grilled about why things take so long or what did you do, it has an impact on young associates. Clients have expectations based on experience with other law firms, and most clients are sophisticated when it comes to measuring how lawyers work.”

Weaver also points out that your billings may not only be reviewed by clients, but also by the courts and adversaries. “Third-party review is as hostile as what you can expect from your clients,” he says, adding that clients have sued their former lawyers because fees and costs exceeded the reasonable expectation of the litigation itself.

Panelist Karli Swift, a lawyer with Baker Donelson in Atlanta who specializes in complex software and other IT transactions, says there is an expectation that junior attorneys must maximize billable hours but also be responsive to clients, which creates a conflict.

“How does a junior associate describe what they’re doing effectively? We have to write down what we do,” she suggests. “Use a timer. Bill for .1 or .2 hours. I think it’s important for all attorneys, and especially junior attorneys, to recognize that and to create multiple ways to think about their time and how to describe their time and keep their time in layered perspective, using the electronic system as well as writing it down. Full communication is key and ultimately, you must figure out what works best for you.”

Mark says most people are aware of interruptions, but don’t realize the extent of them. “I don’t think people have good accuracy as to exactly how much they’re being interrupted.”

A second ethical risk relates to the risk of unreasonable fees, or ABA Model Rule 1.5, that says fees must be reasonable, and Formal Opinion 93-379, that lawyers are expected to complete projects for clients efficiently.

To avoid inefficient work practices or redundancies, Weaver suggests going into the office early, or even on a Saturday to avoid normal workday interruptions.

“I knew if I could be left alone and not be interrupted I could get a lot more done,” he says. “The reality is, we always have interruptions interfering with our pattern of work. Without distractions there is more value to my clients.”

Swift says younger lawyers are more accustomed to being interrupted, due to social media. “Distractions have to be managed,” Swift says. “Generations can learn from each other how to manage distractions.”

The third ethical issue is competence, as spelled out in ABA Model Rule 1.1, to provide competent representation. When lawyers are interrupted frequently, it changes how they think, Mark says. “It takes a while to get into complex thinking mode. Being interrupted affects our ability to perform duties to clients with skill,” says Mark, who cited ABA Model Rule 1.3, reasonable diligence and promptness in representing a client.

“When you have a complex task, you need to devote time and energy to that task,” Swift says. “You can multitask, but it’s probably not a good idea when drafting a brief. You have to create time to close your door, maybe leave your office so you don’t have interruptions. Interruptions can completely hinder you from getting into the deep thinking you need to solve complex issues.”

A fourth ethical issue to consider is Model Rule 1.4, the duty to keep your client reasonably informed. Interruptions can result in causing lawyers to fail to respond to clients. “Lawyers deal with a large amount of information every day,” Swift says. “Find a system of filtering emails and responding to emails. Figure out the strategy that works best for you.”

Strategies for managing interruptions might include turning off email or other communication software or turning off the Internet. “Mindfulness is a technique that shows promise,” Mark says. “It helps you become focused on the present, the work you’re doing right now.”

Swift says in her case, it’s not realistic to shut off all communication because that creates more stress. “Maybe for isolated periods of time, but coming in early to focus on something works better for me,” she says. 

Lawyer, Interrupted: Ethical Risks of Working Amid Distractions and What To Do About Them” is sponsored by the ABA Law Practice Division,  Section of Science & Technology Law and Young Lawyers Division.