The pandemic prompts the question: Is remote work here to stay?
BY SHERRY BOSSE LUEDERS
In March 2020, law firms joined other industries in shuttering offices and directing their employees to work from home, in an effort to slow the spread of COVID-19. While considered a temporary measure at the time, remote work, once an anomaly in the legal industry, has now become the norm. As Washingtonians slowly become eligible for the COVID-19 vaccine, it seems time to talk about what reopening may look like for law firms. Will the law office as we knew it in 2019 return in 2022? This article discusses how the ways attorneys in Washington have adapted their law practices in the face of the COVID-19 pandemic may influence how law offices reopen and what the new normal might look like for the legal industry.
Like a lot of Washington attorneys, I have adjusted to working from a home in which, in various corners, the rest of my family is working, attending school, or playing video games (all of which somehow involve simultaneous videoconferences at high volumes). Unlike many attorneys, I worked from home before the COVID-19 pandemic made remote work the norm. I practice at a small virtual law firm where the entire team—attorneys, a paralegal, legal assistants, and office assistants—works remotely. When COVID-19 hit, I already had a dedicated home office with a real desk and a door that shuts, a fast internet connection, and colleagues seasoned in the idiosyncrasies of remote work.
While I do appreciate the calming effect of hearing my dog snoring in the corner while waiting to argue a motion at a hearing, I cannot wait to get back to normal, even if the new normal is not going to be identical to my practice in 2019. I suspect that I will continue to open probates by mail or online in most cases, that Zoom and telephonic hearings will continue to be routine, and that more client meetings will be held via phone or Zoom than before the pandemic. Many of the adjustments attorneys have made to how we practice law are more efficient and convenient, for both attorneys and clients. That said, I look forward to attending some hearings in the courthouse, offering clients the option of meeting in person, and occasionally working in a location that is not my home office. But while I look forward to fewer household interruptions, I just might keep morning recess.
One thing appears certain, however, and that is that the pandemic has accelerated preexisting trends toward remote work in the legal services industry. For example, participants at a September 2020 roundtable hosted by commercial real estate services firm CBRE Group, Inc., discussed how, after attorneys and support staff alike abruptly switched to working from home to slow the spread of COVID-19, law firms discovered that remote work does not necessarily reduce productivity.11 CBRE Group, Inc., CBRE Roundtable: The Legal Workplace in the Era of COVID-19, Sept. 16, 2020, available at www.cbre.com/research-and-reports/CBRE-Roundtable-The-Legal-Workplace-in-a-COVID-19-and-Post-COVID-Environment. The roundtable participants predicted that a “hybrid” approach to work will likely become the norm, with attorneys and staff rarely spending all their time at the office—but also rarely working entirely at home.22 Id.
Similarly, a 2020 Bloomberg Law Legal Technology Survey found that 86 percent of law firms responding to the survey expected their firm’s work-from-home options to continue in some form even after the pandemic.33 Bloomberg Law, Analysis: “Will COVID Force Firms to Ditch the Fancy Offices?” Meg McEvoy, Aug. 20, 2020, available at www.bloomberglaw.com/product/health/document/X7E99QQ0000000?resource_id=c8ba85577e5d0221f193fad2eac96e61. Commercial real estate brokerage Cushman & Wakefield noted similar trends for law firms in its 2020 report.44 Cushman & Wakefield, 2020 National Legal Sector Benchmark Survey – Bright Insight, Sherry Cushman, July 14, 2020, available at www.cushmanwakefield.com/en/unitedstates/insights/2020-bright-insight. The Cushman & Wakefield survey shows how quickly law firm attitudes toward remote work changed during 2020. In the first quarter of 2020 (pre-COVID-19) and for the five previous years, two-thirds of firms responding to the survey believed that fewer than 10 percent of attorneys at their firms would work remotely more than two days a week. However, the firm’s summer 2020 survey revealed a significant shift in expectations regarding remote work, reporting that 90 percent of law firms responding to the survey expected more than 10 percent of attorneys would work remotely on a regular basis.55 Id. at 7.
In the Seattle area, the COVID-19 pandemic has impacted office space occupancy. The “For Rent” signs popping up on office buildings over the last several months are visible evidence of trends observed by the commercial real estate industry. For example, commercial real estate firm Kidder Matthews reports that Seattle-area office vacancy rates in the fourth quarter of 2020 increased to 8.37 percent, from 5.24 percent for the same period in 2019.66 Kidder Mathews, Market Trends Seattle Office, 4th Quarter 2020, available at https://kidder.com/wp-content/uploads/market_report/office-market-research-seattle-2020-4q.pdf. On the Eastside, office vacancies were lower than in Seattle but they were still up from 2019 levels, with a fourth-quarter vacancy rate of 5.62 percent, up from 4.04 percent in 2019.77 Id. South King County has the greatest amount of vacant office space in the Puget Sound region, with fourth-quarter vacancies at 14.12 percent, up from 13.38 percent in 2019.88 Id. Matt Christian, executive managing director in Cushman & Wakefield’s Seattle office, noted that overall leasing activity in the area is the lowest it has been in a decade and that the majority of office workers in Seattle continue to work from home, as of January 2021, with only 10 to 20 percent working in office space. Christian has observed, “[t]his has led to mostly short-term renewals as well as downsizing space needs as firms continue to be cautious about the future.” According to Christian, while the majority of attorneys in the Puget Sound region have been working remotely since March 2020, attorneys with offices in lowrise buildings outside downtown areas are more likely to have continued to go into the office during the pandemic.
I reached out to attorneys across the state to learn how their use of office space has changed during the COVID-19 pandemic and how they have adapted their practices. There has not been a one-size-fitsall response to the pandemic for law firms in our state. Some practice areas are more conducive to remote work than others. In addition, some firms have discovered that it is possible to keep their offices open, with safety precautions for attorneys, staff, and clients, in contrast to larger firms working in high-rise buildings.
Susan Donahue has a law office in a 12-by-20 log cabin in Twisp, in Okanagan County. In spring 2020, Donahue began to meet with clients under an apple tree in the garden outside her office, as a COVID-19 precaution, and discovered that it was not only possible to maintain confidentiality while meeting with clients outdoors, but also extremely pleasant. As temperatures dropped and the snow piled up this winter, Donahue shifted to meeting with clients under a heater she installed on the office porch. Donahue also switched to working from home unless a client needed to meet in person. While working from home has an undeniable appeal, Donahue has no plans to give up her office space and looks forward to being back in the office on a regular basis after the pandemic.
“I want to return to an idea that I do my law work at my office and enjoy myself at home,” Donahue told me. “Now it is all mixed up at home with work always being there.”
While Donahue looks forward to returning to the office after the pandemic, other attorneys have no plans to go back to their 2019 office schedules. Education attorney Lara Hruska is a founding partner of Cedar Law PLLC, a 12-person civil rights firm with offices in Seattle and Yakima. After shifting to remote work due to COVID-19, the firm decided to reduce its Seattle office space from a partial floor in a downtown Seattle tower to a single office, with the entire Seattle team working remotely. Hruska has seen positives from the client side due to the shift to remote work, noting that “depositions have been more comfortable, and we had a few super emotional cases go to mediation where the clients have stated that they really liked participating from their living room without the possibility of bumping into an adverse party in the hallway.” Hruska expects remote hearings, depositions, and client meetings to remain the norm post pandemic and is contemplating a post-pandemic schedule that may include limited time in the office two or three days per week. Hruska’s experience reflects a larger trend, with Cushman & Wakefield’s Christian reporting that the firm expects to see attorneys adopting a hybrid model where days at work are divided between home and the office.
How conducive their office space is to socially-distant client meetings and specific client needs may also have an impact on whether attorneys choose to maintain the space. Cedar Law’s Yakima office provides a contrast to the firm’s experience with its Seattle office during the pandemic. Attorney Shannon McMinimee has continued to go into the office most days. Unlike the firm’s downtown Seattle office, its Yakima office is in a single-story building that provides clients with easy access to meeting space while observing social distancing precautions. McMinimee also notes that the firm has more clients in Yakima who lack access to technology and Wi-Fi or who face other barriers that prevent participation in a Zoom meeting. In addition, she has found it easier to continue to meet in person with clients who require an interpreter to be present.
Other attorneys have no plan to return to the office. Shaun Watchie Perry already worked remotely the majority of the time prior to the COVID-19 pandemic, but she has nearly eliminated the time she spends in the office. Before the pandemic, Perry maintained a virtual downtown Seattle office for her real estate and business law practice, with a receptionist available to answer calls and a conference room for client meetings. Now, she no longer has a receptionist to answer the phone, and Perry meets with most clients via Zoom. While she misses the convenience of having a receptionist to answer calls, Perry has found that Zoom has enabled her to hold effective meetings with clients and with other attorneys. She plans to continue to work remotely full-time after the pandemic but still maintain a virtual presence in downtown Seattle.
As more attorneys shift to remote work, it is important to keep in mind that the Washington Rules of Professional Conduct (RPCs) still apply, whether a law practice is based at home, in a downtown Seattle office tower, or under an apple tree in Okanagan County. WSBA Advisory Opinion 201601 addresses virtual law offices, noting, “[t]he core duties of diligence, loyalty, and confidentiality apply whether the office is virtual or physical.”99 WSBA Advisory Opinion 201601, Ethical Practices of the Virtual Law Office (2016). Advisory Opinion 201601 confirms that there is no requirement under the RPCs that attorneys maintain a physical office address.1010 While a physical office is not required by the RPCs, the WSBA does require attorneys to provide a physical residence address and a principal office address, although the latter need not be a physical address. WSBA Advisory Opinion 201601 states, “Section III(B)(1) of the Bylaws of the Washington State Bar Association (WSBA) requires that each member furnish both a ‘physical residence address’ and a ‘principal office address.’ The physical residential address is used to determine the member’s district for Board of Governors elections. The principal office address does not need to be a physical address. Similarly, Admission and Practice Rule (APR) 13(b) requires a lawyer to advise the WSBA of a ‘current mailing address’ and to update that address within 10 days of any change. Nothing in that rule indicates the mailing address must be a physical address.” It also discusses an attorney’s duty in working remotely to maintain confidentiality, both in their use of public spaces to work and in their use of technology.1111 Id. See also WSBA Advisory Opinion 2217 (2012), addressing email security and noting that a lawyer must “take reasonable care to protect the confidentiality” of electronic communications; and WSBA Advisory Opinion 2215 (2012) addressing the duty to maintain confidentiality in the use of online data storage by attorneys.
Do more attorneys working from home or maintaining a virtual office make it more challenging to serve pleadings on opposing counsel? WSBA Advisory Opinion 201601—issued long before the COVID-19 pandemic, in 2016—recommends seeking an agreement with opposing counsel for pleadings to be served by email if an attorney does not want to provide an address for hand-delivery.1212 Id. In addition, an attorney using a home office as a primary office may want to consider whether they want their clients—or opposing counsel—to know where they live. For most Washington attorneys and law firms, it is likely that the law office will continue to exist in some form after the pandemic, although it may have a smaller footprint than prior to COVID-19.
Is remote work going to be more common for attorneys post COVID-19? Probably. Is it going to be the norm? Probably not. While the shift to remote work due to COVID-19 will likely lead to an increase in the number of attorneys, like me, who work remotely nearly all of the time, many attorneys have plans to return to the office on a regular basis after the pandemic. In addition, there are a fair number of attorneys, particularly at smaller firms, who have continued to go to the office during the pandemic, sometimes to better serve clients and sometimes because the office is a better place to work. The bottom line is that COVID-19 has accelerated a trend toward increasing flexibility in what constitutes a “law office” where attorneys can work productively and maintain client confidentiality.
1. CBRE Group, Inc., CBRE Roundtable: The Legal Workplace in the Era of COVID-19, Sept. 16, 2020, available at www.cbre.com/research-and-reports/CBRE-Roundtable-The-Legal-Workplace-in-a-COVID-19-and-Post-COVID-Environment.
3. Bloomberg Law, Analysis: “Will COVID Force Firms to Ditch the Fancy Offices?” Meg McEvoy, Aug. 20, 2020, available at www.bloomberglaw.com/product/health/document/X7E99QQ0000000?resource_id=c8ba85577e5d0221f193fad2eac96e61.
4. Cushman & Wakefield, 2020 National Legal Sector Benchmark Survey – Bright Insight, Sherry Cushman, July 14, 2020, available at www.cushmanwakefield.com/en/unitedstates/insights/2020-bright-insight.
5. Id. at 7.
6. Kidder Mathews, Market Trends Seattle Office, 4th Quarter 2020, available at https://kidder.com/wp-content/uploads/market_report/office-market-research-seattle-2020-4q.pdf.
9. WSBA Advisory Opinion 201601, Ethical Practices of the Virtual Law Office (2016).
10. While a physical office is not required by the RPCs, the WSBA does require attorneys to provide a physical residence address and a principal office address, although the latter need not be a physical address. WSBA Advisory Opinion 201601 states, “Section III(B)(1) of the Bylaws of the Washington State Bar Association (WSBA) requires that each member furnish both a ‘physical residence address’ and a ‘principal office address.’ The physical residential address is used to determine the member’s district for Board of Governors elections. The principal office address does not need to be a physical address. Similarly, Admission and Practice Rule (APR) 13(b) requires a lawyer to advise the WSBA of a ‘current mailing address’ and to update that address within 10 days of any change. Nothing in that rule indicates the mailing address must be a physical address.”
11. Id. See also WSBA Advisory Opinion 2217 (2012), addressing email security and noting that a lawyer must “take reasonable care to protect the confidentiality” of electronic communications; and WSBA Advisory Opinion 2215 (2012) addressing the duty to maintain confidentiality in the use of online data storage by attorneys.