Beginning in March 2020, the landscape in the practice of law changed forever. With the uncertainty of the coronavirus, lawyers were forced to stop physically going into the office and had to pivot to remote work within days. They had to adapt and adjust to new ways to interact with clients, colleagues and the courts while at the same time managing the uncertain challenges presented by personal and family concerns happening simultaneously at home. With the emergence of the Omicron variant, we are once again faced with uncertainty as to what the future may hold for in-person court appearances, conferences, oral arguments and trials. The ability to question a witness at a deposition face-to-face, has become a thing of the past in many cases. Connecting with our colleagues, even those we proudly call adversaries, is almost a distant memory. Most importantly, the personal interaction among our peers, our associates, our time to collaborate in person, has become obsolete. Is this the new normal? What are the best practices for lawyers and law firms moving forward as we emerge on the other side of the pandemic into a new world?
The Pandemic’s Impact on Professional Relationships
While the hybrid model of working at home as well as the office is likely here to stay for many legal professionals, it remains unclear what this indicates about the future of litigation and the ability to confront not only witnesses but our adversaries, judges and peers. How will the new generation of litigation attorneys truly learn without in-person mentoring? Will the effectiveness of attorney client communication suffer long term?
Attorney Client Relationships
Attorney-client relationships require a level of trust and personal connection. Whether the subject matter of the case is business transactions or family law, the client has hired an attorney to help them to solve a problem that requires professional expertise. Often the issues involved are of a personal or sensitive nature and may be a source of tremendous stress in the client’s life. Keeping these aspects of the legal relationship in mind, how do lawyers provide the best service to their clients in an increasingly virtual world?
The answer is that we have entered a new world of relationship-building. In assessing the preservation of client relationships, firm leadership must consider the needs of clients on a case-by-case basis. Open communication with clients about their preferences for interacting with attorneys and staff is the first step. Some clients may prefer virtual interactions while others may feel most comfortable meeting in-person. Virtual conferencing does allow for more frequent interactions with clients, but it may or may not increase the level of professional trust between attorney and client. Again, the answer likely lies in a particular client’s comfort level with the virtual world. Law firms will need to meet clients at their level of comfort and be flexible on an individual basis rather than trying to enforce a blanket policy.
Business Development: Educational Webinars, Conferences and Networking
Law firms have found some success in attracting new clients and engaging current clients during the pandemic through the use of virtual educational webinars. Attendance is generally higher at an online event and law firms are able to showcase their areas of expertise. Given the fact that the pandemic has been raging for almost two years now, most attorneys have already increased their knowledge and aptitude in this area considerably, but many feel that it simply cannot replace the face-to-face contact with a potential client. In fact, business development is a one of the largest concerns of attorneys working remotely according to a recent survey conducted by the American Bar Association.
In addition, legal conferences are also likely to remain virtual, or in a hybrid format long after the pandemic resolves. In the past, law firms used conferences to attract and recruit clients. Again, while this remains possible in a virtual world, it may decrease the likelihood of finding clients that would otherwise be accessible in a live session.
Professional relationship between co-workers is also uniquely impactful in the law firm culture. Lawyering skills are built on mentorship with senior attorneys providing long term training and teaching of less experienced attorneys in the workplace. Although this relationship is possible in a purely virtual world, some of its benefits may be lost. Conversations in the lunchroom and quick questions in passing are obsolete in the virtual world and replaced by more formal methods of communication such as drafting an email, or making a call to reach out for help. It may be more intimidating for a new attorney to ask questions under these circumstances versus a quick knock on the door to get brief moment of the mentor’s time in the quest for guidance.
Changes to Law Firm Operations Post Pandemic
Impact on Firm Travel Accessibility and Costs
The post pandemic law firm’s policy on travel is likely to be changed permanently. Law firms are now more carefully assessing what tasks can be accomplished remotely without having to shoulder the expense of travel for one or more attorneys. Of course, some things such as site inspections will continue to demand an in person presence, but the amount of travel has decreased significantly for lawyers and is expected to continue on a more limited basis than was the case pre-pandemic. In addition, it is likely that law firms will have some members of a team travel for particular meetings while other members tune in remotely as a way of conserving unnecessary cost to the firm and client. This mixed presence also changes presentation styles and the approach attorneys will have to take when meeting with clients.
Return to the Office
Many firms have delayed their return to the office plans first due to the Delta variant and most recently in response to Omicron. Although law firm policies on return to work vary from region and region based on local rule and managing partners personal philosophies on the issue, it is clear that most firms are permanently altered by the realization that attorneys and staff can in fact be productive and accomplish a number of tasks from home. Remote work no longer suffers the same stigma it did not so long ago.
Many law firms are now allowing their lawyers to remain remote, or are opting for a hybrid schedule which involves attorneys coming in a few days a week, with most firms landing on three days a week in person as the new standard. Proponents say this flexibility in the workplace will contribute to the overall happiness and well-being of attorneys as well as productivity. Opponents assert concerns about client confidently and the chilling effect remote work has on forming important mentoring relationships and other social relationships in the workplace.
The ABA Coordinating Group on Practice Forward published a report entitled, “Results and Best Practices From a Nationwide survey of the Legal Profession”, with the purpose to assist lawyers to navigate the new normal after the pandemic. In this report it gathered data from 4,200 ABA members on various topics relating to their work during the pandemic and what they foresee as we come out of it. Although many expected to continue some form of remote or hybrid work, others, especially women with young children, cited increased stress levels as a result of working at home and feeling overwhelmed by home and work responsibilities. In addition, many lawyers felt that they must be on call 24/7 as the freedom of remote work allows them to work any time day or night, but at the same time chains them to their computers in a new way than was the case when reporting to the office.
In the report attorneys also had greater concerns about being overlooked for assignments or client opportunities as well as their potential for advancement. A marked decline in the availability of professional development opportunities was also a top concern.
Lawyer Wellness Programs
In recent years, the legal community has recognized a greater need to focus on the mental health and work-life balance of lawyers. With the pandemic this need has only increased in importance. Firm leadership must be cognizant of the fact that each employee as well as clients have lived through a unique personal experience in dealing with the pandemic. In an emerging trend, many firms are launching new lawyer wellness initiatives focusing on mental health. This may look like webinars on mental health topics, social events, more opportunities for connection even if virtual, or the availability of additional mental health resources such as wellness coaches or programs, or added support for working parents.
The Practice of Law is Evolving After the Pandemic
The Emergence of the Virtual Law Firm
Pre-pandemic the business model of the virtual law firm was almost nonexistent. A virtual law firm practices completely online and does not have any type of physical location. On the positive side, this allows these firms to eliminate many overhead costs and allows them access to a wider geographical area of clients. However, the cons of this business model are one and the same- what cost does this type of interaction take on the attorney-client relationship and does it erode client trust and involvement in the lawsuit? Is the potential damage to the attorney client relationship outweighed by the increased opportunity to meet with clients virtually? Does a better lifestyle overall for attorneys contribute to higher productivity?
Many are asking these questions and turning the traditional law firm culture on its head. Congress is even actively pursuing a bill that encourages increased access to technology for those utilizing an attorney’s services. The “Twenty First Century Courts Act” would expand the availability of technology in ana effort to provide increased access to justice and access to the court system.
Legal Paraprofessionals: Coming to a Jurisdiction Near You?
In another new trend riddled with both excitement and controversy, several states are considering licensing “legal paraprofessionals” as part of their state’s legal strategy in giving more individual equal access to justice. In 2020, the American Bar Association passed Resolution 115, which encourages states to explore new models for increasing access to justice for all of their citizens. Currently, at least five states including Arizona, California, Illinois, New Mexico and Utah are considering some version of legal paraprofessional programs.
The Post Pandemic Juror
The jury pool that existed pre-pandemic no longer exists. As with any significant life event, attitudes and beliefs change as a result. The pandemic is unique in that every person experienced its impact to some degree. The difficult part about navigating the post-pandemic juror is that polarization and increased levels of emotional response make juror attitudes and beliefs harder to read. For example, although the pharmaceutical industry enjoyed praise and celebration from many for delivering the vaccines, others harbor increased distrust of the science behind the vaccines in addition to accusing the pharmaceuticals of pursuing profits over people. In the wake of this uncertainty and the vast valley of differences as well as points of view, the landscape of the courtroom has changed dramatically for the trial lawyer as well the judge. Juror attitude, beliefs, motivations and biases all need to be examined differently post pandemic.
Best Practices for Law Firm Leadership Moving Forward
- Assess each individual client’s comfort level and expectations regarding communications and meetings. Acknowledge that attorneys need to meet clients needs as much as possible in regard to virtual vs. in person interactions.
- Leadership should consider reevaluating and assessing current policies and practices in regard to remote work, flex work and part-time positions. How would these employment arrangements change advancement paths, or expectations?
- Adjust policies and procedures to ensure that diversity, equity and inclusion initiatives continue to progress and grow through the changes the firm may undergo post pandemic.
- Emphasize communication and check-ins between senior and junior attorneys to ensure that mentoring and learning is still effectively taking place. Clearly articulate goals and communicate empathy.
- Communicate that when the office re-opens the firm prioritizes the health and safety of its employees.
- If not already in place, create written policies on remote working protocols and expectations.
- Provide added support and resources for technology as well as administrative help to remote workers.
- Focus in and expand health and wellness programs.
- Create opportunities for connection both virtually and in-person.
Scharf, Stephanie & Liebenberg, Roberta, 2021, Practicing Law in the Pandemic and Moving Forward. results and Best Practices From a Nationwide Survey of the Legal Profession, American Bar Association
Christensen, Dave, 2021, Managing Relationships and Operations in the New Normal, American Bar Association
Hodkinson, Paul, January 13, 2021, The New Normal Could Be the Beginning of the End for Law Firm Culture, American Lawyer
Dr. Lorie Sicafuse, 2021, Impacts of the COVID-19 Crisis’ on Jurors’ Attitudes and Decisions, Courtroom Sciences