‘Living at work’ – the lessons for law firms from a year at home

‘It’s been challenging for everyone. Whether you’re living alone, or with children who need homeschooling, with teenagers who need emotional support or you’re caring for elderly parents – no-one has been unaffected,’ says Slaughter and May real estate head Jane Edwarde on the impact the last year has had on the profession. ‘A year is a very long time for any human being.’

Like many aspects of all of our lives, the way law firms operate has been turned on its head over the last 12 turbulent months. Gone (for the time being at least) is any stigma that working from home is less productive than long hours in a busy office, but gone too are the career benefits of spontaneous social interaction with clients and colleagues, and any semblance of a divide between work and home life.

Despite early announcements of pay freezes, reduced partner drawings and reduced hours, it’s now clear that while other industries have reached crisis point after a year of lockdowns, the City legal market has remained resilient. More than resilient, in fact; with many lawyers busier than ever before, speaking of unsustainable workloads that need to be coped with in far more challenging working conditions.

The upshot is that the way firms grapple with work allocation and career development for their now almost-entirely-remote workforce has become more important than ever, as has the pastoral care element managers need to take into account when making their decisions.

‘The effect on mental health is one of the downsides of the pandemic. That private time has gone. Your work is a refuge if you’re bored, but there’s no balance anymore.’
Karen Seward, Allen & Overy

As Allen & Overy (A&O) global litigation head Karen Seward warns: ‘The effect on mental health is one of the downsides of the pandemic. That private time has gone. I can only imagine what people, particularly younger staff, must be feeling… your work is sitting there staring at you – it’s a refuge if you’re bored, but there’s no balance anymore.’

The burnout challenge

No-one has had a great lockdown. A full year on since the pandemic emptied offices, shops and restaurants and sent everyone into isolation, it’s clear that even many of those who actively enjoyed the first, sunny lockdown and happily insisted they wanted to work from home forever are less content now.

But in some quarters, the difficulties the last 12 months have presented have been even more onerous. And this is even without considering the very real impact of loss and illness that some will have experienced.

Sharing top billing in this regard are two main groups – working parents and carers, and trainees and junior lawyers. As Freshfields Bruckhaus Deringer London managing partner Claire Wills says: ‘It’s been really tough for those with caring responsibilities – both men and women. But there are also those at the junior end who may have been working sitting at the end of the bed.’

When schools were closed and nannies banned, many faced the new challenge of juggling work with homeschooling and other caring responsibilities 24/7. While the glimpses into colleagues’ domestic existence offered by video calls may have provided some welcome distraction – and occasional moments of hilarity – on a broader level, it meant everyone adapting to the reality of shift-pattern working, when availability for all was no longer confined to a standard working day.

Stories abound of women across the country bearing the brunt of caring duties, being forced to reduce their hours out of necessity, letting their careers take a back seat for a while or indeed being furloughed or made redundant.

As Seward adds: ‘I initially thought we could see a decisive shift towards the end of the traditional breadwinner model. But it’s been obvious that many women are picking up the majority of the homeschooling.’

Caring responsibilities are, of course, just as real for lawyers as anyone else. But what has not happened at the top end of the legal market thus far is a significant decline in activity levels as seen in some other industries. Quite the reverse.

Had the market crashed as it did following the collapse of Lehman, women and other lawyers with caring duties would likely have fallen behind colleagues without such responsibilities, with reduced availability seeing them overlooked for high-profile projects in quieter times, damaging their career prospects.

However, across much of the market things have played out differently, with firms reporting that the overwhelming majority of staff with caring responsibilities have dug deep, risen to the challenge and somehow managed to operate at full capacity.

They may now be exhausted and potentially burnt out but, for the most part, they are not likely to face long-term damage to their careers.

‘Work and home life have merged together. Junior lawyers are now finding they don’t have that separation between work life in the office and personal life at home.’
Amy Mahon, Simpson Thacher & Bartlett

‘All of our working carers are so conscientious and committed that they haven’t fallen behind – but this has come at some personal cost,’ says Edwarde. ‘What’s really been squeezed for everyone is that rest time, the downtime. Everyone is “living at work”. We’re trying to support people and make it clear that we’re not expecting everyone to be superhuman.’

However, Herbert Smith Freehills corporate partner Mike Flockhart warns that firms need to be mindful of any potential negative impact of flexibility. ‘We offered more flexibility for people with family commitments – that deals with the immediate challenge of things like childcare but not the longer term career aspirations. Careers can be damaged by benevolence as much as by a lack of appreciation of the challenges. Shielding women/carers because you think it’s the right thing for them can have a bad impact. It means having more conversations with them and, when we’re making decisions about promotions etc, it’s about removing those biases that may exist around say, chargeable hours, so that what gets rewarded is not just the ability to work hard but genuine talent and the ability to build relationships.’

One benefit for parents and others with caring responsibilities is that they have been protected from one of the worst effects of the pandemic – isolation. Many lawyers have lived entirely alone for months on end, while others have struggled with the enforced isolation of life in shared housing, with limited space for work meaning many will have spent long hours working alone in a bedroom.

Simpson Thacher & Bartlett partner Amy Mahon comments: ‘Work and home life have merged together. As a partner I was already used to that but junior lawyers are now finding they don’t have that separation between work life in the office and personal life at home. Everyone knows you are at home all the time and, because you can’t go anywhere, it is more difficult to get a break, even when on holiday. Building in time out and mental space is very important and I think most people are finding it a challenge.

‘Being a mother is helpful to achieve a break from work. I can explain I’m putting my daughter to bed, or we are having dinner as a family. We have had to encourage those without those sorts of responsibilities to build in that space, that break. In some ways, for those of us with families, it’s been nice – we’ve spent more time with them and most people with family commitments have coped pretty well.’

Work allocation

Whether you’re looking at the careers and wellbeing of the more junior lawyers or those with additional responsibilities beyond work, balancing the need for experience with lawyers’ personal situations means effective work allocation systems are increasingly important.

In every firm, the big shift here has been an increase in communication and a recognition that while numbers are important, what’s going on behind them is more important.

‘Everyone’s experience of the pandemic is personal, whether it be someone juggling caring responsibilities or those who have lost family members,’ says Skadden London head Pranav Trivedi. ‘We’ve tried to ensure that work allocation reflects people’s personal experiences and responsibilities. It’s something we were mindful of before the pandemic, but the past year has brought the issue to the fore and we’ve become better at doing so. It is something that I think will continue long term.’

Every firm spoken to for this feature confirmed that they are holding more regular discussions with staff about their capacity and the particular areas in which they want to gain experience. For all, the desire is to minimise the risk of having some people drowning at 150% utilisation, while others are operating at only 80%. As Trivedi explains: ‘If you’re looking at the level of utilisation it’s in the collective best interests to have work allocated fairly and people evenly busy. Our leverage ratios only make sense when there’s consistency across the paradigm.’

Others, such as Herbert Smith Freehills, have taken a more data-led approach in addition to the increased communication. Pre-Covid, the firm had introduced a formal work allocation system in its corporate practice and has now extended this to disputes. This system combines utilisation data with an associate’s own assessment of their capacity over the coming period, with a human overlay via the practice’s work allocation manager who speaks to the team regularly about their activity levels and the experience they want to gain.

‘We’ve tried to ensure that work allocation reflects people’s personal experiences and responsibilities.’
Pranav Trivedi, Skadden

The benefit, according to Flockhart, is that problems both with those working too much or too little can be picked up earlier than would otherwise be possible while working remotely.

He explains: ‘It cuts out the long chain of partners involved in the decisions and means we’re able to look at who would be the right choice based on sector interest and speciality – as well as how busy they’ve been. Our decisions will be smarter than they would have been in the past. During Covid, we don’t have the luxury of being able to grab people quickly or put our head round their door.

‘We don’t have the same easy visibility into people’s workload now, so having this means that we get an early warning system. The associate who’s a bit too busy or a bit quieter we can pick that up – we may have responded quicker in the office but, without this, people working from home could be under or over utilised for too long a period of time.’

However, as Seward adds, the key is not utilisation, it is results. ‘You need to focus on people’s output. There’s a lot less presenteeism now and that’s a good thing. What underpins it all now is trust – and I think trust levels have improved exponentially. The firms who are saying we’re not going to go back to the old ways once this is over will be a more attractive proposition.’

In addition to employing a dedicated work allocation manager to speak to associates in its disputes practice, A&O is testing out a new tool called Online Legal Marketplace that is intended to relieve the pressure on associates struggling to find time for themselves in a world when expectations around availability have shifted to unreasonable levels. The tool, currently in its incubation stage, will allow overworked associates to post tasks that need to be finished overnight to a portal, where they can be picked up by someone with more capacity in another office or timezone.

‘We have to look at the positives and drive change in how we do things,’ says Seward. ‘If you think about working smarter, not harder, why wouldn’t you have a great work-allocation system? Where people can work cross-jurisdiction and also cross-timezones, it means people can try to regain some of their private time.’

Career development

Closely related to the subject of work allocation is career development, which is also posing a challenge to firms operating in a virtual world.

‘It’s especially tough for trainees and junior lawyers,’ says Edwarde. ‘We ask our trainees to join client calls, but that’s the best they can get right now. It isn’t the same as joining a big negotiation meeting. There’s the seeing, breathing and social side of being a lawyer that they’re not getting in the same way. Being a lawyer is a people business, and building lasting relationships is hard if they haven’t seen it being done or aren’t practising it.’

Similarly, with those casual, often spontaneous, office conversations about experience and opportunities no longer possible, firms need to find a way to ensure that these discussions are still happening. ‘What’s missing,’ says Mahon, ‘can be the more strategic conversations, not about the deal or the client, as those conversations still happen, but about their career. Often those conversations naturally start when physically in the same place and they are better conversations over a coffee in person. As a result we have been scheduling them formally to ensure they take place.’

One potential positive side effect from a shift to more formalised discussions around work allocation and career development could, however, be an improvement in diversity. The old boys’ club, with senior partners tapping a favourite associate on the shoulder to secure them a role on the best matters, may increasingly be a thing of the past, but there’s no doubt that removing the personal element from these things will help diversity further.

‘We’ll need to be mindful when we design the new normal. We can’t pretend people can’t work effectively remotely, so how do we do that while retaining culture and camaraderie?’ Mike Flockhart, Herbert Smith Freehills

Says Seward: ‘Work allocation can make a real difference to diversity. Moving the dial means having work allocation managers who are focused on sensible utilisation at the same time as taking into account associate desire to develop new skills and competencies. This focus gets underneath informal assignment practices that can have inherent bias.’

Learning lessons

Overall, despite the difficulties and the stress lawyers are currently under, partners are adamant that there are plenty of positive lessons to be learned from the pandemic.

A growing roster of firms have already confirmed that they won’t be returning to office life as it was before (see box, ‘Post-pandemic plans’). Most recently, Freshfields confirmed that it would be allowing all UK staff in London and Manchester to work remotely up to 50% of the time, subject to the demands of their team.

Others, like Slaughter and May and Baker McKenzie, are still in the process of reviewing their policies. The broad expectation across the City is that many staff will choose to work remotely at least a day or two each week once the initial excitement of offices being open again has passed. Indeed, with some lawyers having moved further away from London, some may have no option but to continue with remote working.

The potential benefit here is significant. While flexible working has become increasingly commonplace for lawyers in recent years, there has still been hesitation in some quarters that it is not compatible with transactional practices and concerns on the part of some associates that, in practice, too much of it could hinder their career progression.

‘There’s a lot of data showing women generally have been more badly impacted by the pandemic. I like to think that it will be better in the legal sector and it’ll end up being more positive than negative.’
Claire Wills, Freshfields Bruckhaus Deringer

However, the ease with which firms have used technology to make the switch to home working en masse, and the hours racked up remotely in the most challenging circumstances mean any arguments against the productivity or practicality of home working no longer hold true.

This means that if agile working continues to be embraced by lawyers once offices are open again – including, crucially, those at a senior level – it could level the playing field for those who do not want to – or cannot – be at their desks late into the evening, five days a week.

Getting this transition to a hybrid model right, however, is not a given. The fact that everyone has been forced to work remotely for the last 12 months has effectively created equality. Once people return to offices, managing a hybrid model when only 40-50% of a team may be in on any one day will become increasingly challenging. At this point firms will have to up their game significantly.

‘We’ll need to be mindful when we design the new normal,’ says Flockhart. ‘The future will need to balance the independence we’ve had for the last year with the need for collaboration, learning and training that comes from being in an office. We can’t pretend people can’t work effectively remotely, so how do we do that while retaining culture and camaraderie – the good stuff? It has to be a two–way conversation.’

Get it right and this could be the long-awaited driver for change that the profession has needed. ‘I’m an optimist,’ says Wills. ‘There’s a lot of data showing women generally have been more badly impacted by the pandemic – setting them back in terms of being able to work and level of ambition. I like to think that it will be better in the legal sector and it’ll end up being more positive than negative, but we’ll have to work harder in a hybrid model to make sure it stays inclusive.’

‘This has shown law firms – and possibly our clients – that we can all work remotely and that the world doesn’t fall apart. It might not be as enjoyable or as sociable, but the work does get done and it gets done well. I’m hoping therefore that if that point is now proven, and there’s a resultant increase in flexible/agile working in the industry, then perhaps this will encourage more women [and others with responsibilities outside work] to see that they can work flexibly without compromising their careers,’ concludes Edwarde. LB

georgina.stanley@legalease.co.uk