It is common knowledge that the practice of law is not the profession that you choose if you want to have a good work/life balance. In a program organized by the ABA, What Women Want: Strategies for Law Practice Leaders (now on demand on the ABA website), the speakers reported a statistic:
At law firms with more than 500 lawyers, attorneys report the lowest levels of satisfaction with social impact, work/life balance, and overall happiness
The former president of the ABA Carolyn Lamm wrote that 70% of the lawyer surveyed by NALP reported “significant problems meeting personal and health needs and finding time for family and leisure.”[i] Some progress has been made but not enough according to another survey.[ii]
In a situation that was already quite “tight” for lawyers with a family, the effect of the coronavirus crisis can be devastating. Family obligations during the pandemic can take an heavy toll on a lawyer. Working from home because of the lockdown, reorganizing your daily life, and even more assisting a family member with covid, can be very similar to an impairment of the lawyer himself.
As we already wrote in our blog Some ethical (and malpractice) implications of Covid19 crisis for lawyers. Part I: Working from home: confidentiality, competence, and supervision: “An attorney working from home or another remote location is under the same obligations to maintain client confidentiality as is the attorney when working within a traditional physical office.” Pennsylvania Bar Association, Committee on Legal Ethics And Professional Responsibility, April 10, 2020, Formal Opinion 2020-300.
In our blog Some ethical (and malpractice) implications of the Covid19 crisis for lawyers. Part II: physical and/or mental illness during the pandemic, we noted that law firms have supervisory obligations based on professional obligations of competence and communication to identify when lawyers are likely to be suffering from mental health or other problems. We think when lawyers face competence and communication problems arising from family stress the firm has similar obligations to take steps to deal with such issues.
We wrote that if a lawyer becomes physically impaired as a consequence of this pandemic, the firm needs to take steps. As the District of Columbia Ethics Advisory Committee wrote in Ethics Advisory Opinion #377, exploring the ethical obligations of law firms when a lawyer in the firm comes to suffer from an impairment, opined partners and other managerial and supervisory lawyers have an obligation
to take steps to prevent an impaired lawyer from violating the Rules, to develop policies addressing impairment, and to create a firm or agency culture that allows subordinate lawyers and other personnel to report concerns regarding the impairment of a lawyer without reprisal.
This general duty of prevention of noncompliance with ethics is true in case of a lawyer under the pressure of family obligations. Law firms should have specific policies and procedures to deal with lawyers’ family obligations during this pandemic; those policies and procedures should identify possible actions. Obviously, the precise steps to take will depend on the level and duration of the impairment but firm action is certainly required to take actions when the level of the impairment is such that it is likely to have a significant or material effect on the lawyer’s professional obligations. Similarly to what we wrote in case a lawyer becomes physically impaired because of covid (or for depression, anxiety or addiction associated with the crisis), the firm … should consider speaking with the lawyer who has family-stress issues to determine the lawyer’s perspective on the situation and then – if the firms determines that the family pressure is too heavy for the lawyer to be able to continue to comply with its ethics obligations, take action to avoid the noncompliance. In extreme cases the firm might advise the lawyer to consider withdrawal from cases and reassign these matters to other lawyers but there are many possibilities short of such an extreme step.
One possibility for firms to consider would be to appoint a lawyer or staff member who would have special responsibility to identity lawyers and staff members who may be facing stressful family situations arising for the Covid19 crisis. An analogy for this effort would be bar programs – “Lawyers Helping Lawyers” – to assist lawyers in dealing with substance abuse, depression, or other health problems. However, the firm’s internal program would be different from the typical bar program because it would be proactive rather than reactive. The firm’s Covid19 Assistance Coordinator (“CAC”) would reach out to all members of the firm to inform them of the Firm’s availability to assist with family problems arising from the Covid19 crisis, particularly as they might affect the lawyer’s ability to perform professionally. The CAC would need to become educated about resources that can be provided to members of the firm with these needs (among others, children’s resource). A particularly enlighten firm could even think to hire a person or to independent contract to put together online programs for the children of the personnel. Lawyer parents could sign up their children for these programs, thus giving them a break from their supervisory responsibilities and the opportunity to perform their legal work. The CAC would also need to have contacts in the professional community to refer lawyers with serious problems for assistance. An attorney or staff member who practices in the domestic field would be a natural for this position.
Another possibility is case load reduction or assistance. Firms should consider whether the stress of additional family responsibilities or changes in work environment resulting from the Covid19 crisis mean that the work load that a lawyer carried before the crisis may not be possible or appropriate now. Case load problems may be particularly acute for single caregivers, attorneys with disabilities, and others with special needs. Women – who still tend to be the primary caregivers and providers of domestic needs despite these “enlightened” times – are likely to face burdens not faced by their male counterparts. Ethics opinions dealing with public defenders who faced excessive workloads stand for the general proposition that, depending on the circumstances, a lawyer may have an obligation to turn down work if the lawyer reasonably believes that the lawyer cannot perform the work competently, and corresponding, supervisors have an obligation not to assign work to subordinates that would create competency and communication problems. Cf. Norman Lefstein, Securing Reasonable Caseloads: Ethics and Law in Public Defense (ABA Publications 2018).
For more information, Nathan M. Crystal & Francesca Giannoni- Crystal.
—————————————————————-
[i] Carolyn Lamm, Solving the Work-Life Equation, available at https://www.abajournal.com/magazine/article/solving_the_work-life_equation/news/article/do_you_volunteer_on_a_regular_basis/?utm_campaign=sidebar
There is some evidence of a correlation between work-life balance and attrition, which a NALP study highlighted by linking decreased percentages of lawyers searching for new jobs with enhanced availability of work-life balance policies. More than 70 percent of those surveyed reported having significant problems meeting personal and health needs and finding time for family and leisure.
According to Thomson Reuters research, nearly 80 percent of attorneys agree work/life balance is an important measure of success. While some offices have been seen making small strides to accommodate these demands, such as allowing parents to work from home during the day, attorneys are frequently feeling the pressure to sign on later in the evening to finish up what they left behind at the office. Outside of traditional parenting, people are also facing responsibilities that require time off during the day or on weekends, such as caring for an elderly loved one or continuing their education. Is it possible for parents to practice law and have a family life? Available at https://legal.thomsonreuters.com/en/insights/articles/practice-law-family-life
