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June 2021

Think before you post to social media lest you face 6-month suspension

Stacked3Here is a recent Daily Record column. My past Daily Record articles can be accessed here.

*****

 

Think before you post to social media lest you face 6-month suspension

If I’ve said it once, I’ll say it again: think before your post. This recommendation applies to everyone, of course. But if you’re a lawyer, then you’d best heed my advice and tread lightly when posting commentary online on social media sites or elsewhere. Otherwise you run the risk of running afoul of your ethical obligations and unleashing the wrath of your bar’s disciplinary body. At the very least, you’ll face embarrassment and at the worst you may be disciplined or even barred from the practice of law altogether.

If you’re not yet convinced, then maybe the results of a very recent South Carolina disciplinary action will do the trick. In the Matter of David Paul Traywick, Opinion No. 28037, which was filed in June 2021, an attorney faced the music for his online behavior to the tune of a 6-month suspension.

At issue in this opinion were 12 different postings made on Facebook by the attorney in question. Notably, the Commission on Lawyer Conduct received a significant number of complaints about his actions: “Beginning in June 2020, ODC received complaints from forty-six separate individuals regarding statements Respondent made on his Facebook page. At that time, Respondent maintained a personal Facebook account with a privacy setting of ‘public,’ meaning his posts were visible to anyone, not just his Facebook ‘friends,' and even if the person did not have a Facebook account. In his Facebook profile, Respondent identified himself as a lawyer and referenced his law firm.”

In its opinion, the Commission focused on two particularly inflammatory statements, both of which were “not expressive; they (we)re expressly incendiary…and had the effect of inciting, gender and race-based conflict beyond the scope of the conversation…(and the) fact Respondent is a lawyer exacerbated this effect.”

One of the statements was about tattoos and his extreme dislike for both tattoos and people with tattoos, particularly “these females.” The other related to the murder of George Floyd, wherein he insinuated - by using very derogatory language - that Mr. Floyd’s life didn’t matter and as proof of that fact, he noted that the stock markets went up in the days after his murder.

The Commission explained that both statements were quite troubling, and that the posting regarding Mr. Floyd was of particular concern since it “was intended to incite intensified racial conflict not only in Respondent's Facebook community, but also in the broader community of Charleston and beyond. We hold this statement in particular tended to bring the legal profession into disrepute, violated the letter and spirit of the Lawyer's Oath, and constitutes grounds for discipline under Rules 7(a)(5) and 7(a)(6), RLDE, Rule 413, SCACR.”


For that reason, the Commission found that because of the attorney’s actions and the extremely inflammatory nature of his postings, he should be suspended from the practice of law for 6 months and would also be required him to complete “at least one hour of diversity education…a comprehensive anger management assessment…(and) undergo an evaluation through the Lawyers Helping Lawyers program…” In other words, they determined that those postings were strong evidence that he had a multitude of issues that needed to be addressed.

So my dear readers, don’t be like David. When you’re interacting online and find yourself particularly upset about a random issue and decide that you’d like to share your ire with friends near and far, please, for the love of all that is holy, take a deep breath. Then take another one, and then one more. Finally, ask yourself if it’s absolutely imperative that you share your frustration with the world. The answer is almost certainly “no.”

But if for some reason you should determine that the answer is “yes” and your opinion relates to a particularly divisive topic, perhaps consider asking your life partner, or even one of your kids, for their opinion as to whether you should post it. Then maybe ask your goldfish or your cat.

By the time you’ve solicited these opinions, you’ll likely have calmed down a bit, and probably won’t care as much about the issue as you did 10 minutes earlier. In which case, don’t post about it. Put your keyboard down, shut your laptop, and slowly step away from your desk. And go watch a movie or read a book. Maybe even take a walk.

Whatever you do, I beg of you, don’t post that rant online. Trust me; it’s for the best. One day you’ll thank me.

Nicole Black is a Rochester, New York attorney, author, journalist, and the Legal Technology Evangelist at MyCase  law practice management software for small law firms. She is the author of the ABA book Cloud Computing for Lawyers, co-authors the ABA book Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York, a Thomson Reuters treatise. She writes legal technology columns for Above the Law and ABA Journal and speaks regularly at conferences regarding the intersection of law and technology. You can follow her on Twitter at @nikiblack or email her at niki.black@mycase.com.


Here’s why your firm needs to be in the cloud

Stacked3Here is a recent Daily Record column. My past Daily Record articles can be accessed here.

*****

Here’s why your firm needs to be in the cloud

If you’re familiar with my column you know that I have been urging lawyers to learn about - and use - technology for over a decade now. I always stress how important it is for lawyers to educate themselves about the technologies available for use in their law practice and to make informed decisions regarding which tools to invest in for the long haul.

The reason it’s so important for lawyers to understand technology is because it has a direct impact on both the practice of law and the business of running a law firm. For example, cloud computing used to be viewed with skepticism and distrust. But no more. Because cloud-based software singlehandedly made it possible for the legal profession and courts to continue to function throughout the pandemic, it’s now a commonplace technology that is used in law firms across the country.

The increased use of cloud-based technology is a positive trend for any number of reasons, not the least of which is that it protects law firms from ransomware attacks. This is because law firm data stored in the cloud is housed on servers located offsite; as a result the servers - and the data stored on them - is protected from ransomware attacks.

These types of cyberattacks occur when bad actors are able to install malware on a law firm’s in-office systems, oftentimes by exploiting a vulnerability caused by a failure to install necessary software updates. When that malware is activated, all data stored on a law firm’s on-premises servers can be locked up and held hostage for ransom. Meanwhile, any and all law firm data stored or backed up in the cloud will be immune from the attack since the data is not stored on the hacked premises-based servers.

So if your law firm isn’t using cloud-based software to house or backup its data, it should be. If you’re still not convinced, perhaps a recently proposed New York Senate Bill will do the trick. In May, Senate Bill S6806A was introduced in the New York State Senate by Senator Diane J. Savino. (Online: ). This bill "prohibits governmental entities, business entities, and health care entities from paying a ransom in the event of a cyber incident or a cyber ransom or ransomware attack.” Presumably the goal is to deter would-be criminals from engaging in ransomeware cyberattacks by removing the incentive: the ransom.

However, the bill has the practical effect of precluding businesses that are victims of a ransomeware attack from complying with the the ransom demands. So, if this bill is enacted and your law firm is a victim of a ransomware attack, any law firm data stored on your firm’s hacked in-office servers will be lost since you will be prohibited from paying the ransom required to get it back. On the other hand, under this same scenario, any firm data stored on the remote cloud-based servers will continue to be accessible, and your inability to pay ransom will be of no consequence.

Notably, three other states are considering similar legislation, but under those bills only taxpayer or state funds will fall under the ransomeware payment ban.

The key takeaways for lawyers are twofold. First, make sure to regularly update any and all premises-based software and enact other cybersecurity measures, including training your employees to detect and avoid phishing and spoofing emails. Second, make sure to store your law firm’s data in the cloud. Not only will your firm enjoy the benefits of 24/7 convenient, secure, and flexible access to law firm information, the data will also be protected from ransomware attacks.

So if your firm isn’t already using cloud-based software, what are you waiting for? There’s no time like the present to make this important transition to the cloud.

Nicole Black is a Rochester, New York attorney, author, journalist, and the Legal Technology Evangelist at MyCase  law practice management software for small law firms. She is the author of the ABA book Cloud Computing for Lawyers, co-authors the ABA book Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York, a Thomson Reuters treatise. She writes legal technology columns for Above the Law and ABA Journal and speaks regularly at conferences regarding the intersection of law and technology. You can follow her on Twitter at @nikiblack or email her at niki.black@mycase.com.


Will lawyers continue to be averse to technology post-pandemic?

Stacked3Here is a recent Daily Record column. My past Daily Record articles can be accessed here.

*****

Will lawyers continue to be averse to technology post-pandemic?

As the pandemic recedes and we head into the “new normal,” no one is exactly sure what law offices will look like post-pandemic. Will lawyers work remotely more often than before? Will the “face time” requirements of year’s past fall by the wayside as remote work increases? Will law firms continue to adopt new technologies into their firms in order to facilitate new ways of working?

Only time will tell how these questions will be resolved. In the meantime, we have the results from a number of recent surveys available that offer predictions and possible answers to these inquiries.

For example, the recently released 2021 Wolters Kluwer Future Ready Lawyer Survey: Moving Beyond the Pandemic tackles these issues and much more. This annual survey always offers insightful analysis of legal trends, and this year’s Report was no different. The 2021 survey includes data obtained from 700 legal professionals across nine European countries and the U.S. from a broad range of law firms and legal departments and provides a wealth of statistics about law firm, the effects of the pandemic, and legal technology purchasing decisions.

One of the main issues addressed in this year’s survey was how the pandemic impacted attitudes about technology, change management, and remote work. One of the key findings was that one effect of the pandemic was an increased realization of the value of technology, and the many benefits that the legal profession derives from it: “The ability to use technology to ensure performance became more important as the pandemic sent professionals out of the office and into their homes where they interacted remotely with clients, colleagues and the courts. The crisis made clear that technology solutions are essential to business resilience and client service. The survey also confirms that professionals see digital transformation and technology as a key driver of improved performance, efficiency and productivity ahead and that increased use of and investment in technology solutions will continue.”

Because of the pandemic and the resulting social distancing requirements, law firm lawyers and staff were unexpectedly displaced from their offices. Law firms were forced to transition to remote work, and many were wholly unprepared for that shift. For that reason, it’s no surprise to learn that 77% of survey respondents shared that one of the top trends that will impact their law firm over the next three years is the increasing importance of legal technology. 

This is because technology played such a key role in addressing the remote working challenges that law firms encountered at the start of the pandemic. That’s why it makes perfect sense that 63% of survey respondents reported that their law firms planned to increase technology spend (up from 60% in 2020). And, since cloud-based tools were instrumental to business resiliency during the pandemic, it’s not surprising to learn that according to 75% of those surveyed, cloud computing software was the top technology that their firms planned to purchase in the near future.

The survey results also showed that emerging technologies would also play a part in many law firms future technology spend. Survey respondents indicated that the following technologies would have an impact on their firm over the next three years: 1) big data and predictive analytics (69% up from 58% in 2020), 2) machine learning (67% up from 57% in 2020), 3) artificial intelligence (65% up from 59% in 2020), and 4) robotic process automation (63% up from 49% in 2020).

However, the survey results also indicated that although law firms seemed to be exhibiting an increased interest in purchasing new technology, most were not fully prepared to implement technological change. Only 32% of respondents believed that their firms were very prepared to use technology to be more productive. Similarly, only 30% said that their firms were very prepared to effectively implement change management processes. A mere 25% agreed that their firms were very prepared to automate routine processes. Finally, less than a third of respondents (30%) agreed that their firms had staff capable of leveraging technology and only 26% were very prepared to recruit or retain technology staff.

Given those statistics, you might think that the future of technology adoption in law firms looks bleak. However, the authors of the survey would beg to disagree. They believe that the pandemic ushered in a new phase of technology use in the legal profession: “(O)ne thing is certain: the digital transformation of the industry gained unprecedented momentum, which continues today. In the past year, technology was a lifeline to the legal profession, in serving clients, connecting with colleagues and driving efficiency and productivity. As the industry continues to recover and a ‘new normal’ emerges, technology will be a driving force.”

I tend to agree, but then again my official title is “Legal Technology Evangelist,” so perhaps I’m a bit biased. What do you think? Will technology adoption increase significantly in the years to come, or will the legal profession overall continue to be technology averse?

Nicole Black is a Rochester, New York attorney, author, journalist, and the Legal Technology Evangelist at MyCase  law practice management software for small law firms. She is the author of the ABA book Cloud Computing for Lawyers, co-authors the ABA book Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York, a Thomson Reuters treatise. She writes legal technology columns for Above the Law and ABA Journal and speaks regularly at conferences regarding the intersection of law and technology. You can follow her on Twitter at @nikiblack or email her at niki.black@mycase.com.


NY’s in-state office requirement is on its last legs

Stacked3Here is a recent Daily Record column. My past Daily Record articles can be accessed here.

*****

For years now, New York has steadfastly resisted the realities of practicing law in the 21st century by requiring non-resident lawyers to have an office in the state. This despite the fact that rapid technological advancements over the past decade have enabled lawyers to work from any location and access case-related information with the click of the button, at any time, day or night. Lawyers are no longer tethered to their offices and can practice law from just about anywhere using cloud-based tools. As we learned during the pandemic, brick and mortar offices are unnecessary and law firms can function - and even profit - with dispersed workforces operating remotely from their homes.

Nevertheless, lawyers licensed in New York and who reside elsewhere are still required to maintain physical office space in the state in order to practice law here. This mandate is imposed by Section 470 of the Judiciary Law, which has been challenged in court on a number of occasions, but still remains in effect.

Most recently, Section 470 was the focus of a recent ethics opinion issued by the New York State Bar Association: Ethics Opinion 1223. Notably, as you’ll learn below, this may very well be the last ethics opinion to address this law, since it will likely be repealed in the near future.

At issue in this opinion was whether “a New York lawyer (may) rent space to other lawyers as a nonlegal business, and provide them with facilities and equipment to operate their separate law practices…”

The Committee explained that for a lawyers licensed in New York who also reside in New York, having a non-permanent office does not trigger Section 470: “(A) New York lawyer may work out of his or her residence in New York, but not want to meet clients there or use a home address for business…(since) an office that the lawyer does not occupy full-time enables the lawyer, at relatively small expense, to meet both client needs and the lawyer’s own law practice management goals.”

However, according to the Committee, non-resident lawyers with a New York license who seek to take advantage of the office rental situation proposed by the inquiring attorney would need to ensure that the office arrangement meets the requirements of Section 470: “A non-resident attorney who is admitted to practice in New York and who practices New York law must have an office in New York that meets the minimum requirements of Section 470, but we express no opinion as to what Section 470 requires.”

In reaching this conclusion, the Committee highlighted a recent turn of events that indicated that Section 470 may very well be repealed in the near future by the passage of Senate Bill S700. The Committee explained that “(i)n January 2019, the New York State Bar Association adopted a resolution calling for the repeal of Section 470. The President of the Bar Association stated: ‘In a digital era where attorneys across the street and around the world are just a click away on their computer or smart phone, an antiquated rule from over a century ago requiring a physical office in the state no longer serves any purpose.’” 

And then in a footnote, the Committee noted that on the same day that this opinion was published “the New York State Senate adopted S700. The bill has been referred to the Assembly Judiciary and Rules Committees.”

As of the week of June 15th, the bill has been delivered to the Assembly and referred to the Judiciary.

So change is afoot, and at long last there is a very good chance that this antiquated requirement will be no more. Here’s to the steady march of progress, the rapid pace of technological innovation, and the impact of both on the practice of law. Change is often good - especially when it increases the ability of lawyers to practice law on their own terms and utilize technology to do it. I don’t know about you, but in this case I’m all for it.

NY’s in-state office requirement is on its last legs

 

Nicole Black is a Rochester, New York attorney, author, journalist, and the Legal Technology Evangelist at MyCase  law practice management software for small law firms. She is the author of the ABA book Cloud Computing for Lawyers, co-authors the ABA book Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York, a Thomson Reuters treatise. She writes legal technology columns for Above the Law and ABA Journal and speaks regularly at conferences regarding the intersection of law and technology. You can follow her on Twitter at @nikiblack or email her at niki.black@mycase.com.


Federal District Court judge rules on discoverability of Fitbit data

Stacked3Here is a recent Daily Record column. My past Daily Record articles can be accessed here.

*****

Federal District Court judge rules on discoverability of Fitbit data

These days, technology is inexorably intertwined with our daily lives. We interact with others online for both business and social purposes. We carry mobile phones with us everywhere we go. We use cloud-based software so that we can access our data and online communications using any internet-enabled device. We purchase and pay for goods online without ever leaving our homes. We wear smart watches and fitness devices that track our every move.

As we head into the post-pandemic world, our experiences with social distancing requirements only served to increase our reliance on technology - so much so that it’s often difficult to envision a world where we’re no longer “connected.”

Because of the ubiquity of technology in our day-to-day lives, it’s no surprise that the data created by and stored in both the cloud and on our devices can be useful in litigation. For that reason, access to this data is often requested during the discovery phase of of a case. Of particular interest in personal injury matters is the data obtained from fitness devices, something I’ve written about a number of times in the past.

Most recently, this issue came up in a federal case out of the Eastern District of Missouri, Eastern Division. In Bartis v. Biomet Inc., Case No. 4:13-CV-00657-JAR, the plaintiffs alleged that a defective artificial hip implant manufactured by the defendants caused them to suffer substantial injuries. One plaintiff, Guan Hollins (“Hollins”), asserted that he continued to experience pain and lack of mobility due to the implant.

During the course of discovery, Hollins shared that eight months after the hip implant was removed he began to regularly wear a Fitbit, and that the device “tracks his number of steps, heart rate, and sleep.” The defendants then made the following discovery request: “Plaintiff Guan Hollins shall produce all data, including step counts, from his Fitbit from the time he began wearing the device through the present date. Hollins may redact any information concerning his heart rate, sleep records, or location, as such information is not relevant to this litigation and raises privacy concerns.”

Hollins objected to the request on the grounds that it was “overly broad, unduly burdensome, not properly limited in time and scope,…not calculated to lead to the discovery of admissible evidence,” and that the data from the device was unreliable.
The Court disagreed, and concluded that the fact that a plaintiff wears a fitness tracking device should not, in and of itself, allow a defendant to engage in a fishing expedition for evidence. But that in the case at hand the data could be relevant to disproving Hollins’ claims of long term injury and pain, and that his objections to the evidence related to its admissibility and weight, not discoverability.

Accordingly the Court determined that the Fitbit data should be turned over: “Plaintiff Guan Hollins shall produce all data, including step counts, from his Fitbit from the time he began wearing the device through the present date. Hollins may redact any information concerning his heart rate, sleep records, or location, as such information is not relevant to this litigation and raises privacy concerns.”

This case is yet another example of the increasing relevance that technological advances like fitness tackers have in litigation matters. Because the pandemic’s effects have further increased societal comfort levels with all types of technology, litigators will need to stay abreast of the many tools that store data both locally and in the cloud, and ensure that they fully understand how and where cloud-based data is stored.

Nicole Black is a Rochester, New York attorney, author, journalist, and the Legal Technology Evangelist at MyCase  law practice management software for small law firms. She is the author of the ABA book Cloud Computing for Lawyers, co-authors the ABA book Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York, a Thomson Reuters treatise. She writes legal technology columns for Above the Law and ABA Journal and speaks regularly at conferences regarding the intersection of law and technology. You can follow her on Twitter at @nikiblack or email her at niki.black@mycase.com.


Florida Bar on The Ethics of Accepting Venmo and Other Online Payments

Stacked3Here is a recent Daily Record column. My past Daily Record articles can be accessed here.

*****

Florida Bar on The Ethics of Accepting Venmo and Other Online Payments

The effects of the pandemic on the practice of law - and on our society overall - will be long lasting and significant. It will likely take years to fully appreciate how much things have changed. That being said, many of the structural modifications to our work culture are already apparent, and have been caused by the increased prevalence of remote work, social distancing requirements, and economic turbulence.

During the pandemic, many law firms initially struggled to stay afloat because of the high levels of uncertainty and the need to avoid in-person interactions. Business processes were interrupted, and traditional forms of payment collection were stalled as a result of the touchless requirements of the pandemic. Out of necessity, however, law firms quickly pivoted and many that had staunchly resisted accepting credit cards using online payment tools suddenly shifted gears.

Of course, there are many different ways to accept online payments from clients, and the functionality and privacy features of these tools vary greatly. That’s why it’s no surprise to learn that lawyers who wanted to ethically use online payment tools turned to their local ethics committees for guidance.

For example, in March the Florida Bar Professional Ethics Committee released Proposed Advisory Ethics Opinion 21-2,which squarely addressed this issue. (Note: it has yet to be approved for release as a final opinion).

In that opinion, the Committee acknowledged the increase in inquiries of this nature since the start of the pandemic: “The Florida Bar Ethics Department has received several inquiries whether lawyers may accept payment from clients via Web-based payment-processing services..This also is an increasingly frequent question on the Bar’s Ethics Hotline. Accordingly, the Professional Ethics Committee issues this formal advisory opinion to provide Florida Bar members with guidance on the topic.”

In reaching its determination as to whether lawyers can ethically use online payment tools, the Committee explained that accepting credit and debit cards via online payments is commonplace for businesses in 2021. Therefore it makes no sense to preclude lawyers from accepting this type of payment: “The Rules of Professional Conduct are ‘rules of reason’ and ‘should be interpreted with reference to the purposes of legal representation and of the law itself’…When reasonable to do so, the rules should be interpreted to permit lawyers and clients to conduct business in a manner that society has deemed commercially reasonable while still protecting clients’ interests. Permitting lawyers to accept payments via payment-processing services under the conditions expressed in this opinion satisfies those objectives.”

Because the Committee readily acknowledged that permitting attorneys to accept online payments simply made sense, the Committee concluded that it is ethical for lawyers to accept this type of payment from clients, but with certain caveats: "A lawyer ethically may accept payments via a Web-based payment-processing service (such as Venmo or PayPal), including funds that are the property of a client or third person, as long as reasonable steps are taken to protect against inadvertent or unwanted disclosure of information regarding the transaction and to safeguard funds of clients and third persons that are entrusted to the lawyer.”

The Committee explained that lawyers must protect confidentiality when using online payment tools and cautioned lawyers to familiarize themselves with their online payment platform of choice and then take steps to ensure that client confidentiality is preserved. For example, the Committee advised that if lawyers choose to use Venmo to accept payments, the app’s privacy settings will need to be adjusted in order to ensure confidentiality: “If, as with Venmo, the service being used permits the recipient to control the privacy setting, the lawyer must select the most secure setting to mitigate against unwanted disclosure of information relating to the representation.”

The Committee also recommended that lawyers who choose to accept online payments from clients consider including language like this in their retainer agreements:

“As a convenience to our clients, we accept payment for our services via certain online payment-processing services. The use of these services carries potential privacy and confidentiality risks. Before using one of these services, you should review and elect the privacy setting that ensures that information relating to our representation of you is not inadvertently disclosed to the public at large.”

Finally, the Committee wisely acknowledged that technology is always changing and thus their recommendations regarding specific products were not intended to be inelastic: “The discussion about specific applications in this opinion is based on the technology as it exists when this opinion is authored and does not purport to address all such available technology. Web-based applications and technology are constantly changing and evolving. A lawyer must make reasonable efforts to become familiar with and stay abreast of the characteristics unique to any application or service that the lawyer is using.”

While this opinion is not yet in its final form, it offers lots of instructive insight and guidance for lawyers seeking to accept online payments in their firms. It covers a lot of ground, so make sure to read it in its entirety for advice regarding trust account reconciliation and other issues unique to accepting credit card payments for legal services.

And finally, if your firm isn’t already accepting online payments, what are you waiting for? There’s no better time than now to make that leap.

Nicole Black is a Rochester, New York attorney, author, journalist, and the Legal Technology Evangelist at MyCase  law practice management software for small law firms. She is the author of the ABA book Cloud Computing for Lawyers, co-authors the ABA book Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York, a Thomson Reuters treatise. She writes legal technology columns for Above the Law and ABA Journal and speaks regularly at conferences regarding the intersection of law and technology. You can follow her on Twitter at @nikiblack or email her at niki.black@mycase.com.


Are legal professionals ready to return to the office?

Stacked3Here is a recent Daily Record column. My past Daily Record articles can be accessed here.

*****

Now that mask mandates are being lifted across the country, the return to in-office work seems inevitable. However, anxiety about COVID-19 remains high due to the absence of consistent universal protocols and less-than-ideal vaccine rates, especially amongst children, many of whom do not yet qualify for the vaccine.

For those reasons, many legal professionals are reluctant to return to the office full-time, or even on a hybrid basis. However, despite the general sense of uneasiness, not all law firm leaders are willing to address these concerns. This presents a challenge for legal employers seeking to fully re-open their offices this summer.

The high levels of discomfort expressed by many lawyers regarding the return to the office was highlighted in by the results of recent survey of legal professionals. The survey, “Lawyers Perspectives on Returning to the Office,” was conducted by Law360 and Pulse and Major, Lindsey and Africa. More than 2,500 attorneys responded to it and the results provide lots of useful insight into how different segments of the legal professional population view the return to in-office work.

Not surprisingly there was a marked difference in perspective depending on the age, gender, geographical location, and job function of the responding attorney.

For example, 46% of law firm partners reported that they were “eager” or “very eager” to return to the office compared to only 27% of associates. Younger attorneys also expressed more of a reluctance to return to a 5-day in-office work week schedule, with only 7% wanting to do so compared to 27% of partners.

Similarly, a generational divide was apparent when it came to attitudes about the return to in-office work. 51% of Baby Boomers and 57% of attorneys who were part of the Silent Generation were “eager” to return to the office. In comparison, one 22% of Millennials and 40% of Generation X attorneys were “eager” to transition to in-office work.

Older attorneys were also more likely to seek a return to working in-office 5 days per week. 30% of Baby Boomers were embraced that concept, compared to only 21% of Generation X attorneys and 10% of Millennial lawyers. In comparison, a hybrid work schedule where in-office work occurred a few times each week was supported by 41% of the Baby Boomer lawyers surveyed, 48% of the Generation X lawyers, and 49% of Millennials.

There were also differing perspectives offered by men and women when it came to the return to work. More men (47%) were “eager” to return to the office than women lawyers (28%). Men were also more inclined to return as soon as possible and were less concerned about achieving herd immunity. 26% of women lawyers wanted to wait for herd immunity compared to only 16% of men.

Given these varied results, it’s clear that law firm leaders seeking to return to full capacity operations in-office in the near future face an uphill battle. Conflicting interests are at play and many employees are resistant to the idea of retiring to work full-time - and for very valid reasons.

The question then remains: Will legal employers take heed and address these legitimate concerns prior to requiring legal professionals to return to the office on a full-time basis? Or will the reluctance be brushed aside and ignored, to the very real detriment of the mental and physical health of both the legal professionals themselves and their families?

That’s a question for the ages, and only time will tell. But if you happen to be in the position of making that decision on behalf of others in your law firm, I strongly recommend that you tread lightly. Otherwise you run the risk of experiencing the migration of foundational talent from your firm, an event that could likely have a detrimental impact on your firm’s long term - and successful - recovery from the effects of the pandemic.

Nicole Black is a Rochester, New York attorney, author, journalist, and the Legal Technology Evangelist at MyCase  law practice management software for small law firms. She is the author of the ABA book Cloud Computing for Lawyers, co-authors the ABA book Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York, a Thomson Reuters treatise. She writes legal technology columns for Above the Law and ABA Journal and speaks regularly at conferences regarding the intersection of law and technology. You can follow her on Twitter at @nikiblack or email her at niki.black@mycase.com.