Practice Management

Law firms must do more effective damage control to survive

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Susan Smith Blakely

Susan Smith Blakely. Photo by Wayne Hill Photography.

When I sat down to write this column, my thoughts were interrupted by a mechanical noise coming from my backyard. It was the comforting sound of the weekly “test run” of the generator that keeps our house powered during electrical outages.

We live in a country-like setting within suburbia, and when huge trees around our property fall on power lines, we are reduced to pioneer living, including no internet, which makes it impossible to keep our two home offices churning away.

Our generator is our version of damage control. It was an expensive investment but necessary to fend off crippling inconveniences. And, on that particular day, it made me think about the wisdom of risk management—not just in my home but also in the law profession.

Risk management in our business goes far beyond the assignment of profit and loss. Protection of human capital is key to success in the personal services industry, but lawyers and law firms have rested on their laurels and been in denial about this essential responsibility for too long.

Year after year, law firm leaders turn blind eyes to lurking problems threatening human capital, preferring the approach, “if it ain’t appearing to be broke, don’t fix it,” and relying on the largesse of profits to evidence that everything is A-OK. But the business was and is broken.

The law industry is broken: with its lack of retention and advancement of women and minority lawyers; in its failure to provide mentoring and preparation for young lawyers to assume the mantles of the responsibility they desire; with outdated views of equitable profit sharing and client-generation credit; in its slow progress to offer alternatives to the billable hour; and in its lagging advancements in technologies that could save clients money and relieve stress on practitioners.

And, of particular regret, the legal industry remains broken when it continues to encourage toxic cultures, which ignore basic principles of professional behavior, empathy, dignity and the positive values that had defined the profession for so long, which I explore in my book, What Millennial Lawyers Want: A Bridge from the Past to the Future of Law Practice.

Current efforts are not enough

Although there has been a lot of talk about reforms at legal conferences for years, few of the takeaways from those events or the recommendations from members of law firm affinity groups have trickled down to the production level.

During a speaking event at a large regional law firm several years ago, a managing partner asked me to address members of both the management and compensation committees to help identify some areas of concern to the women lawyers. I was happy to receive the opportunity. I had met earlier that day with members of the law firm’s women’s initiative, and I had a pretty good idea of what was on their minds.

My response went something like this:

“Well, you could begin to address concerns by referring to the committee—which is addressing your maternity leave policy—as something different and less insulting than the ‘Mom Com’ (short for Mommy Committee). And then you could respond to the proposal that was sent to you by that committee almost 18 months ago.”

You could have heard a pin drop. Oh, them. Oh, that.

Those law firm leaders were not exercising effective damage control. And they were not alone in their neglect. It has been—and still is—symptomatic of the profession.

Although pressure from corporate clients has created some positive change in the treatment of human capital, there is still a long way to go.

Some signs of progress

The coronavirus pandemic has pushed us further toward that goal. COVID-19 has focused law firm attention in ways that effective damage control programs should have but didn’t in the past. Law firms have been forced to entertain change to keep their businesses alive and to retain the talent they need to make that happen. And the same is true of other legal spaces as well.

The issues around telecommuting are no longer just “women’s issues,” and Zoom “face-to-face” meetings and regular practice group sessions to connect members of the team are de rigueur today. Advanced technology is at our fingertips, and it is no longer necessary to fly lawyers all over the world at significant expense to clients and health risks to practitioners in order to get the job done.

And it is being recognized today—more than at any time in our recent past—that valuable and reliable colleagues and employees need personal attention out of concern for their well-being.

So law firms are finally making some progress. They are reimagining the workplace and the workspace. They are in a survival mode that has necessitated a new approach, and that is just what the profession needed. Hopefully, these lessons will carry over when colleagues reconvene in offices sometime in the future, if ever.

Of course I would not have chosen a pandemic to get law firms to do the right thing, but it is clear that they needed a jolt—and a big jolt at that—to move them out of complacency and into a place of greater sensitivity and compassion and effectiveness in the modern age.

Will lessons from the past stick in the future?

I am hopeful that these first signs of systemic change will lead to further reforms; I am hopeful that equitable profit sharing and changes in client-generation credit arrangements will follow in recognition of the team effort, as well as critical cultural shifts that rely on appreciation of the individual; and I am hopeful that there will be an emphasis on human factors that will “fix” the profession and make it a more attractive resting place for new generations of legal talent. Time will tell.

But I also am skeptical. Recently, I read an account of a BigLaw firm that has been accused of firing a member of the staff because she “seemed distracted.” The facts show that the woman employee was a very recent widow, the mother of several small children and struggling with the responsibilities of family and work during a pandemic. Distracted? Try devastated. And you would expect a human response and an offer of help. Certainly not a firing.

The fiascos with the July 2020 bar exams have also shown our profession in a particularly bad light: delayed decision-making by bar examiners, which has resulted in uncertainty and financial burdens for recent law graduates; test-takers forced to sit for in-person exams in spite of serious health concerns related to the pandemic; technology breaches during online testing, which have added to the inherent stress of this brand of competency testing; and the insults women test-takers have been subjected to in the name of test security.

These all are outrageous and could have been avoided if leaders in our profession had been willing to forgo tradition and fashion creative solutions to respond to unprecedented challenges. If you are not current on the gravity of these matters, my blog post on the subject will help bring you up to speed.

This I know for sure: Lawyers, especially young lawyers, are not pawns in a game of chess. Their lives are not to be wagered as bets during an especially infectious and life-threatening virus. They are the future of our profession, and we need to see them that way and respect them. They will not ruin the profession if the age-old measures of purported competence are abandoned for the good causes of the health and safety of those we have encouraged into the profession.

The failure of the law profession to be creative, innovative, considerate and empathetic is a thundering example of a profession stuck in the past with very little vision and in danger of becoming a culturally bankrupt profession, content with overlooking too many of its members and refusing to do damage control. And we are left to wonder what it will take, beyond a pandemic, to abandon business as usual and read the tea leaves of progress.

I hope for better times. I hope for sounder minds. I hope for a profession that embraces the future and incorporates the proper damage controls to take full advantage of all that future has to offer.

Susan Smith Blakely is a former partner, law career counselor and author of the Best Friends at the Bar book series for female lawyers. Her most recent book is What Millennial Lawyers Want: A Bridge from the Past to the Future of Law Practice.