As we begin to finally emerge from the pandemic, employers face many questions about what their workplaces will look like. Many have or will decide this summer about how to structure their workplaces. Legal employers, in particular, are faced with a unique opportunity to shed certain assumptions that drove rules about legal organization structures pre-pandemic and to take into account the experiences of members of the community, specifically women and other underrepresented attorneys in law firm partnership positions and legal organization leadership. If we use this moment to begin to make intentional changes to antiquated structures, we can begin to meaningfully improve the well-being of lawyers individually and the bar as a whole, and to advance women and other underrepresented populations.
The Impact of the Pandemic on Women and Other Underrepresented Individuals in the Legal Workplaces
Recent data from McKinsey & Company reveals that women and other primary caregivers disproportionately shouldered particular burdens since the inception of this pandemic, taking on the greater share of homeschooling, overseeing remote schooling, attending to the physical and mental health needs of their children, their own parents and other family members. Adding to that are the experiences of racial trauma impacting in particular women of color, a group of people already underrepresented in the legal profession. For women lawyers, in particular, data from the American Bar American found that large numbers of women are considering an exodus from the profession due to their experience during the pandemic, and anticipation that their post-pandemic needs will not be met. Moreover, a recent peer-reviewed study found that more hazardous than men, and that one in four women is contemplating leaving the legal profession due specifically to mental health problems, burnout, or stress.
This begs the question: What can legal employers do to support women lawyers, and in particular, those from underrepresented and historically excluded backgrounds and identities to avoid losing talented lawyers and help to grow a more diverse, equitable, and inclusive profession? One state has endeavored to provide explicit guidance to legal employers to reexamine their workplaces and the assumptions about the structure of those workplaces, and to call for “flexibility as the model for all rather than the exception.” In June 2021, the Massachusetts Supreme Judicial Court Standing Committee on Lawyer Well-Being (Well-Being Committee) released “Recommendations for Legal Workplaces Post-Pandemic” in an attempt to make changes to the culture and structures of the legal profession to improve well-being and to do so by taking a “top-down” approach that requires buy-in role modeling from top leadership. The statement encourages legal workplaces to rethink norms, structures, and policies that will benefit everyone in the workplace, and to take concrete steps to create a culture of inclusion. The statement release made headlines across Massachusetts and was distributed across the nation, as its recommendations apply across state lines.
A Unique Moment in Time
As the Well-Being Committee statement explains, “[i]n most legal organizations, the option to work flexibly or remotely was the exception rather than the rule prior to the pandemic. . . . [T]his assumption that full time, in-person work is preferable in all circumstances generally ignores or excludes the lived experiences of those who are balancing work with individual challenges, disabilities, or significant external obligations (such as caring for themselves, young children, aging parents, or others).” The pandemic provided a moment of truth for many workplaces, especially those in the legal industry, which in fact survived the pandemic better than they had initially expected.
This a moment that should serve as a call to action to the legal community. As the Well-Being Committee indicates, “[t]he question now facing this great Massachusetts legal community is whether we will take the opportunity presented to us by the challenging year of COVID to begin to innovate and expand the possibilities for balance and inclusion in the workplace, or whether we will revert to pre-pandemic norms that were problematic and ultimately not sustainable for many attorneys then, and will remain problematic and not sustainable for many going forward.”
Recommendations for a Path Forward
Any recommendations must be grounded in core principles that include, per the Well-Being Committee, “[e]nsuring that attorneys with [flexibility]are provided support . . . on par with those physically in the office more often” in order to guard against creating further inequities between those that can work traditional schedules versus those that cannot. In addition, to remain cognizant of and to “eliminate[] any form of stigma with attorneys choosing to avail themselves of flexible or remote work arrangements.”
With those principles in mind, the Well-Being Committee provides the following recommendations to “workplace leaders”:
- Ensure that the decision-making teams and organizational bodies determining policies and practices consist of people representing diverse identities, backgrounds, experiences, and interests, and take into account the needs of people at all levels of the workplace.
- Conduct anonymous surveys and/or find other ways of facilitating honest reporting of the experience of their workplace’s attorneys over this past year, and what they need moving forward.
- Implement policies that embrace flexibility as a model, rather than treating it as an exception, and ensure that these policies are available to all attorneys, regardless of gender, race, ethnicity, parenthood, and/or disability status.
- Whenever possible, be forthcoming and transparent about organizational efficiency and functioning during the period of flexible/remote work in order to increase trust in the reasons behind the implementation of policies.
- Invest in technology, means of communication, and/or training for attorneys on efficient and effective flexible/remote work strategies (including effective management and staffing techniques that do not rely on in-person interaction) in order to support successful client service and work outside of the office.
- Acknowledge the mental, physical and financial strain that many people experienced during the pandemic—even if members of their organization have not communicated that to leadership. This is particularly important in the context of recent racially motivated violence and its consequences for BIPOC (Black, Indigenous, and People of Color) individuals in this country.
- Redouble concrete efforts to acknowledge those and other communal traumas as part of the lives of attorneys working in their organization, and to address the many barriers to success for attorneys from underrepresented and historically excluded populations in the Massachusetts legal community.
- Educate themselves and the other leaders of their organizations about the disproportionate burden of the pandemic on certain demographics, and take affirmative steps to provide support, such as through employee assistance programs and Lawyers Concerned for Lawyers, mental health resources, health insurance plans, and/or identity-specific and/or employee-specific accommodations.
- Implement performance evaluation programs, compensation guidelines, and work allocation systems that guard against devaluing the contribution of those who opt for flexible/remote work, or those who experience disproportionate hardship due to their identities.
- When reviewing timekeeper performance during 2020-2021, take into account that attorneys from underrepresented and overburdened populations may have billed fewer hours during this particular year due to circumstances beyond their control. Instead of viewing this as a failure, use this opportunity to provide these attorneys with the support they need to ramp up their workflow and efficiency again if their circumstances allow, and to invest in their long-term success despite this challenging period.
- Commit to regular morale and well-being checks as a means of identifying issues as they arise and addressing problems that may cause attrition if not resolved.
Implementation and Accountability
While this could be an opportune moment to make change, culture change is difficult, particularly for an industry steeped in tradition and lacking in innovation. Competition among firms, client demands, as well as accountability measurements may help drive these shifts. As a result of the Well-Being Committee, we have already begun to hear from young lawyers asking firms and legal organizations during the hiring process what kind of flexible work policies they employ. Clients can also have the power to drive changes and encourage flexibility in workplaces; take, for example, Coca-Cola’s new policy that requires among other things that outside law firms staff at least 30% of new matters with diverse attorneys. The Well-Being Committee also plans to undertake a follow-up survey with specific questions aimed to evaluate whether firms made any changes to support workplace diversity, equity, and inclusion and to then aggregate and publish the data as a benchmark to progress.
Conclusion
In a year where more firms and legal organizations than ever pledged a commitment to improving diversity, equity, and inclusion in the workplace and to even take concrete steps toward that end, changes in the traditional workplace structure are essential to those steps. This is a moment that legal organizations can capitalize on and start to move the needle creating changes that will have far-reaching implications including elevating women in the profession, as well as those from underrepresented communities and identities, improve the well-being of those in the profession, and create more productive and sustainable workforces.
*Read the Well-Being Committee Statement here.
About the Author
Heidi Alexander is the director of the Massachusetts Supreme Judicial Court Committee Standing Committee on Lawyer Well-Being, and previously was deputy director of Lawyers Concerned for Lawyers, and director of Mass LOMAP, its law office management assistance program.