Big Law Needs to Continue ‘Flexing’ Talent Models (Perspective)

Much has been written about the changing dynamics of the legal industry – particularly since the Time of Shedding and Cold Rocks. One of the more interesting dynamics is around the shifting workforce and the proliferation of flextime and remote lawyers. The legal industry has hardly adopted UBER or Lyft as models but the last few years has seen a change in the way Big Law is staffing itself.

Clearly, staff attorneys (or other non-partnership track positions) have become an ingrained part of the landscape. The broader question is how Big Law is using flexible and remote working arrangements. Granted, data is a bit hard to get. The most recent survey from the Diversity and Flexibility Alliance (DFA) shows that all of the firms responding to their survey had formal policies around flexible working arrangement, including remote working. The survey also showed, however, that formal adoption remained low across attorney groups.

At the same time, Working Mother reported that, of their 50 top law firms, 53% of the lawyers worked remotely at least part of the time. Interestingly, this percentage was relatively evenly distributed across various categories of lawyers. Compare this to the same report on reduced hours. Virtually all firms have policies allowing reduced hours. Consistent with the DFA report, however, Working Mother reports that only 9% of lawyers at their top 50 firms work reduced hours. That percentage is heavily weighted toward non-partner track categories – like counsel and staff attorneys. Similarly, the percentage is heavily weighted toward women. While there is no data on this point, I suspect that many of these folks also work remotely.

There are obvious reasons behind the use of remote working and flexible working arrangements that generally fall into three areas:

1. Technology has enabled a type of remote working that is different from prior generations.
2. Done correctly, flexible working arrangements, like remote working and reduced hours arrangements, can provide different career paths for attorneys seeking a different balance in their lives. I would argue that, over the past couple of decades, the historic rigidity of BigLaw in this respect resulted in an enormous talent drain – particularly among women. These types of arrangements can mitigate those losses.
3. Finally, there are economic reasons – creating a more on-demand workforce, reducing real estate needs/costs, and lowering the cost of people are just a few.

Big Law Progressing, Corporate America Retrenching

Corporate America, of course, has been dealing with this issue for many years. The Society of Human Resource Management reports that telecommuting is up threefold over the past 20 years – from 20% to 60%. Many of the factors driving this adoption in industry generally are the same for Big Law. At the same time, as reported by Bloomberg and others, some companies are beginning to retrench from a policy of remote working. The most noteworthy is IBM which, earlier this year, ended its policy of remote working by requiring all of its remote workers to return to physical offices or otherwise leave the company. IBM’s articulated goal is to increase collaboration and accelerate the pace of work.

Does this mean that the progress made in Big Law toward flexible working arrangements will reverse? Despite high profile actors like IBM, it seems unlikely that the overall movement toward more flexible working arrangements is likely to fundamentally change direction. First, the fundamental economic drivers favoring more flexible working arrangements remain strong. Second, the push for less rigid working arrangements continues to be driven by talented members of the profession. This is not likely to lesson.

The Management Challenge Ahead for Big Law

So, as Big Law continues to inch in this direction, what lessons can we learn from our and our clients’ collective experience? For one, it seems clear from the experience of industry generally that these types of arrangements – whether they be remote working or reduced hours – require more management, not less. The temptation is to put a policy into place, clap our hands and consider us finished. Despite the ability to collaborate via technology, it simply is not yet the same as physical proximity. Thus, smart management will consider ways to work within the challenges to maintain culture and connectivity.

This is particularly true with remote working. If the Working Mother data is accurate, a significant number of partners work remotely. The general assumption is that the Plissken faction is most susceptible to remote working. Perhaps this is true, but experience also teaches that the Plissken faction hungers for direct contact and teaching by more experienced lawyers. Again, building in mechanisms for achieving this kind of teaching – when the senior lawyers are operating remotely – is critical.

The second pitfall is attitudinal. As an industry, we have long believed that quantity equals quality and that proximity is key. This attitude may explain why the take up on flex-time policies remains low. We need to value those members of our firms who operate on a flexible schedule. Otherwise, we create an underclass of lawyers who will be undervalued irrespective of their contribution to the organization. This is particularly important given that many staff attorneys and counsel are women.

As the industry needs change, so do the needs for our human resource management. New staffing models require new thinking around how we connect with our team members and value their contribution. Firms that will continue to succeed in this market will make this part of their arsenal.