When Should Attorneys Be in the Office?

Last month, we identified for our readers the basic concept of what designates an attorney's “office,” in a world of working at home; telecommuting; “virtual” law practices; “limited service” and “satellite” law offices; and offsite client meetings (at your local Starbucks or other neutral turf). See Sheldon I. Banoff, “When Should Attorneys Be in the Office? Part One,” LFPBR, Vol. 17, No. 7 (Sept. 2011), page 1. We identified the potential ramifications of having or not having an office on topics such as state licensure, the unauthorized practice of law, multi-state tax reporting and potential tax liabilities, and the potential violation of rules of professional conduct if one's letterhead, business cards or websites mislead the public as to the existence of an attorney's “office” where no office is deemed to exist.

This month, we focus on how long, when and why a lawyer should be “in the office.” Our analysis is not based on human resource or time management expertise (as your author has neither), but rather on, among other things, observations and anecdotes from our 37 years' experience as an attorney working in a medium and large law firm.

Things We Have Heard

How many of the following have been said by or about you or your lawyer colleagues?

• “He's not in right now, but he can be reached via his e-mail or cell phone.”
• “She's not in today, but is working from home and is checking her messages regularly.”
• “This memo is due Monday morning, but I'll do it over the weekend at my local coffee shop ' no need to come into the office.”
• “When I started in practice 25 years ago, you would find many associates and partners in on weekends. I came down last Saturday and the place was a ghost town.”
• “I wish I could work at home a couple of days every week, but my department head wants me around.”
• “If that client calls tomorrow, tell him I'm in the conference room and then transfer him to my mobile number ' I'll be working from home.”

How Long Should You Be in the Office?

Exactly how long should you be in the office each day? The answer may depend on numerous factors, including whether you are an attorney in a law firm (or are a sole practitioner), what your career track and area(s) of practice suggest for you, what firm management expects of you, and what your clients demand of you. When this author was a first-year associate and dinosaurs roamed the Earth, one of the firm's senior partners told me, “Shelly, we just want a good half day's work out of you, and what you do with your other 12 hours is your business.” He had a smile on his face, but was he joking? To this day, I don't know. But I took the advice as an indication of what a young, growing firm would expect of its associates at the bottom rung of the ladder.

Did I have to be “in the office” to meet my senior partner's mandate? Given the nature of my practice (tax research and planning), the location and lack of portability of the tax treatises and other tax materials, and the inability to access on-line research other than on the firm's premises, I had three options: 1) work at my desk; 2) work in the firm's library; or 3) work off premises at a bar association or law school library. I rarely went off premises to do work. I wasn't worried about missing a client's call ' I had no clients to call me! I worried about missing a partner who might be looking for me to discuss a current or new client matter.

It's hard to believe that once upon a time back in the 1970s and 1980s, there was no such thing as a “billable hour requirement,” merely “general expectations.” (Of course, back then the police said there was no monthly “quota” for speeding tickets, either.) But even then, there were expectations and norms that junior and middle-level attorneys were expected to achieve. And in the days before PDAs, laptop computers, the Internet, research via Google and other technological breakthroughs we now take for granted, putting in the hours generally meant being at the office.

An attorney's compensation and career advancement can be largely impacted by how many hours one is in the office each week. In many, if not most, medium and large law firms, the quantification of total hours (particularly those that are billable and collectible) is a major factor in law firm profitability and the working attorney's compensation. Ethical rules and engagement letter terms typically mandate accurate reporting (and certainly prohibit over-reporting) of hours billed. Thus, you can be in the office as long as you desire; there are no rules of professional conduct that limit you from putting in the daily 12 hours that my senior partner (jokingly?) informed me were his expectation.

When Should You Be in the Office?

In Part One of this article, we discussed ethics opinions issued recently in New Jersey and Florida, which frown upon “virtual” law offices and require a physical location maintained by the law firm or lawyer, with each state having further requirements for the firm or lawyer. The recent New Jersey Joint Opinion we discussed raises a concern that a client will be unable to obtain access to his or her attorney if the attorney does not have a physical office location. When does an attorney need to be in the office for access by clients? An attorney handling a criminal defense case should not be meeting with clients in
coffee shops or other open public facilities, as the surroundings do not provide adequate confidentiality for the matters being discussed. Similarly, clients who are older and less comfortable using technology to communicate, such as an elder law practice, are better suited to meetings in a physical office. However, many other clients do not have legal needs that fit into these categories of practice or need a traditional law office environment to accomplish their legal needs. See Stephanie L. Kimbro, “Practicing Law Without an Office Address: How the Bona Fide Office Requirement Affects Virtual Law Practice,” 36 U. Dayton L. Rev. 1 (2010). Ms. Kimbro observes that concerns about attorney accessibility seem especially outdated given the fact that the use of technology today actually makes an attorney even more easily accessible than when communications were limited to office visits or phone calls.

Another concern of the NJ Joint Opinion is that the public may be misled by different office sharing arrangements where the attorney may work remotely until scheduling a fixed appointment with a client. Some states take a position contrary to New Jersey's and do not require that the attorney list the physical address in any advertisements or letterhead for the virtual law office. Indeed, providing a post office box address would be acceptable so long as the attorney does not claim that the legal services themselves are being performed at the post office box address. See, e.g., Pennsylvania Bar Association Comm. on Legal Ethics and Professional Responsibility, Formal Op. 2010-200 (2010). To the extent that virtual law offices are considered to be permissible forms of practicing law, the professional practice requirement (in some states) for an attorney to physically be in a specified office is reduced or eliminated.

Aside from the ethics opinion vantage, when should an attorney be in the office? From a career advancement viewpoint, there is something to be said for the old adage, “Out of sight, out of mind.” Being a “go-to” person literally requires one to be around for others to “go to,” notwithstanding one's virtual availability via cell, e-mail or otherwise. As a working attorney, can you get the assignments and work on the best projects if you are not around? Clients often do not allow us the luxury of adequate notice on projects, but rather demand immediate assistance. Are you there at the moment the rainmaking attorney needs you? Does “24/7″ mean you must eat, drink and sleep in the office?

The reality of being there when needed is important, but so is the perception of being available. And the perception of being hard-working goes hand-in-hand with the perception of being an attorney in great demand. Which leads us to our “blue jeans” story. The “suit and tie” formal attire rules were just beginning to weaken in the 1990s when our firm allowed the corporate department deal attorneys (who occasionally worked around the clock to negotiate and close big deals) to change into blue jeans for those all-night marathons. When they finished up the next morning, they would be seen in denim garb, on their way home for a few hours' sleep. Of course, some deals never turned into all-night events, but a few of the image-conscious associates would change to blue jeans anyway, and wear them in the office when they arrived an hour or so later than normal the next day. The rest of us were duly impressed by the growing number of corporate associates who must have been pulling all-nighters, because the blue jean attire proliferated ' although the billable hours didn't. Murphy's Law was at work: “Bad” blue jeans (i.e., those worn by attorneys who finished their deals well before midnight) were driving out the “good” blue jeans (i.e., those worn by attorneys whose deals truly took all night). For a while, blue jeans were a badge of honor, rather than mere casual attire that some firms now occasionally permit their attorneys to wear. But firm management finally caught on to the “bad” jeans. (I don't remember whether it was the monthly billings reports or tattling by the “good”-jeans wearers that brought the whole denim thing to a halt back then.)

When Should Attorneys Generally Be in the Office?

Beyond the minimal ethical requirements (such as those described in the 2010 New Jersey Joint Opinion described in Part One of this article), we know of no hard and fast rules on when you have to be in the office. Today's emphasis on billable hours is not “billable hours that start at 8:00 a.m. and finish at 6:00 p.m.” Nor is extra credit given for billable hours that start at 6:00 p.m. and finish at 8:00 a.m. Hours rendered at any time (if they are otherwise “good” hours) count equally. We submit a few rules of thumb that may apply for some of our readers, at least some of the time.

• Identify what firm management and the workplace expects of you, hours-wise ' even if your seniors don't live up to the model. This is clearly a case of “do as I say” and (depending on your workplace), also “do as I do.”
• Identify what your objective is, and how many hours it will take to achieve it. Is your goal to be a premier servicer of other attorneys, in one or more technical areas where you need to have established expertise? That may take countless hours ' in or out of the office ' to read, digest and stay abreast of technical developments that may be relevant to you. Is your objective to develop your own business clientele, in which case would you be better served mingling with them ' weekdays, weekday nights or weekends ' off premises? Is your aim to balance family commitments, personal lifestyle and outside interests with the demands of a law practice, and if so, can you maintain hours at the office while trying to accomplish everything? The only person who ever balanced his life's work perfectly was Eric Brenn, the dish-spinner on the old Ed Sullivan Show, who set a dozen plates spinning on top of a dozen long poles, and then dashed over to spin up each of the slowing plates that were about to crash to the floor. For the rest of us, perfect balance is only an aspiration, never to become a reality.
• For associates and junior partners, be there when virtually everyone else is; better yet, be there five minutes before everyone else arrives, and stay five minutes after. Avoid the “out of sight, out of mind” syndrome.
• Come down to the office once or twice a month on a weekend, to organize, visualize and strategize. (While you're there, it doesn't hurt your rep to leave voicemail messages for senior attorneys, proving you were a weekend warrior on the battlefield above and beyond the call of duty.)
• Late evening or weekend time on the premises can also enable you to do a little something extra ' consider preparing an article or speech for an industry or professional group, or a targeted group of clients. (You might just as easily prepare outside the office, if you have the mental discipline; but you won't be seen by colleagues or superiors on the premises if you do!)

Conclusion

There are no right or wrong answers as to exactly when an attorney should be in the office, or how many hours are enough (or too much). Physical presence without more may be good for perception, but does not necessarily translate into productivity, expansion of one's expertise, wisdom, wealth or well-being. We don't profess to have the answers. There are 168 hours in the week; how many of those hours do you need to be “in the office”? Zero is too little. One hundred is too much. What amount in between?

We welcome our readers' thoughts, comments and anecdotes on this point.

Sheldon I. Banoff, a member of this newsletter's Board of Editors, is a Partner in the Chicago office of Katten Muchin Rosenman LLP. He can be reached at [email protected].

Last month, we identified for our readers the basic concept of what designates an attorney's “office,” in a world of working at home; telecommuting; “virtual” law practices; “limited service” and “satellite” law offices; and offsite client meetings (at your local Starbucks or other neutral turf). See Sheldon I. Banoff, “When Should Attorneys Be in the Office? Part One,” LFPBR, Vol. 17, No. 7 (Sept. 2011), page 1. We identified the potential ramifications of having or not having an office on topics such as state licensure, the unauthorized practice of law, multi-state tax reporting and potential tax liabilities, and the potential violation of rules of professional conduct if one's letterhead, business cards or websites mislead the public as to the existence of an attorney's “office” where no office is deemed to exist.

This month, we focus on how long, when and why a lawyer should be “in the office.” Our analysis is not based on human resource or time management expertise (as your author has neither), but rather on, among other things, observations and anecdotes from our 37 years' experience as an attorney working in a medium and large law firm.

Things We Have Heard

How many of the following have been said by or about you or your lawyer colleagues?

• “He's not in right now, but he can be reached via his e-mail or cell phone.”
• “She's not in today, but is working from home and is checking her messages regularly.”
• “This memo is due Monday morning, but I'll do it over the weekend at my local coffee shop ' no need to come into the office.”
• “When I started in practice 25 years ago, you would find many associates and partners in on weekends. I came down last Saturday and the place was a ghost town.”
• “I wish I could work at home a couple of days every week, but my department head wants me around.”
• “If that client calls tomorrow, tell him I'm in the conference room and then transfer him to my mobile number ' I'll be working from home.”

How Long Should You Be in the Office?

Exactly how long should you be in the office each day? The answer may depend on numerous factors, including whether you are an attorney in a law firm (or are a sole practitioner), what your career track and area(s) of practice suggest for you, what firm management expects of you, and what your clients demand of you. When this author was a first-year associate and dinosaurs roamed the Earth, one of the firm's senior partners told me, “Shelly, we just want a good half day's work out of you, and what you do with your other 12 hours is your business.” He had a smile on his face, but was he joking? To this day, I don't know. But I took the advice as an indication of what a young, growing firm would expect of its associates at the bottom rung of the ladder.

Did I have to be “in the office” to meet my senior partner's mandate? Given the nature of my practice (tax research and planning), the location and lack of portability of the tax treatises and other tax materials, and the inability to access on-line research other than on the firm's premises, I had three options: 1) work at my desk; 2) work in the firm's library; or 3) work off premises at a bar association or law school library. I rarely went off premises to do work. I wasn't worried about missing a client's call ' I had no clients to call me! I worried about missing a partner who might be looking for me to discuss a current or new client matter.

It's hard to believe that once upon a time back in the 1970s and 1980s, there was no such thing as a “billable hour requirement,” merely “general expectations.” (Of course, back then the police said there was no monthly “quota” for speeding tickets, either.) But even then, there were expectations and norms that junior and middle-level attorneys were expected to achieve. And in the days before PDAs, laptop computers, the Internet, research via Google and other technological breakthroughs we now take for granted, putting in the hours generally meant being at the office.

An attorney's compensation and career advancement can be largely impacted by how many hours one is in the office each week. In many, if not most, medium and large law firms, the quantification of total hours (particularly those that are billable and collectible) is a major factor in law firm profitability and the working attorney's compensation. Ethical rules and engagement letter terms typically mandate accurate reporting (and certainly prohibit over-reporting) of hours billed. Thus, you can be in the office as long as you desire; there are no rules of professional conduct that limit you from putting in the daily 12 hours that my senior partner (jokingly?) informed me were his expectation.

When Should You Be in the Office?

In Part One of this article, we discussed ethics opinions issued recently in New Jersey and Florida, which frown upon “virtual” law offices and require a physical location maintained by the law firm or lawyer, with each state having further requirements for the firm or lawyer. The recent New Jersey Joint Opinion we discussed raises a concern that a client will be unable to obtain access to his or her attorney if the attorney does not have a physical office location. When does an attorney need to be in the office for access by clients? An attorney handling a criminal defense case should not be meeting with clients in
coffee shops or other open public facilities, as the surroundings do not provide adequate confidentiality for the matters being discussed. Similarly, clients who are older and less comfortable using technology to communicate, such as an elder law practice, are better suited to meetings in a physical office. However, many other clients do not have legal needs that fit into these categories of practice or need a traditional law office environment to accomplish their legal needs. See Stephanie L. Kimbro, “Practicing Law Without an Office Address: How the Bona Fide Office Requirement Affects Virtual Law Practice,” 36 U. Dayton L. Rev. 1 (2010). Ms. Kimbro observes that concerns about attorney accessibility seem especially outdated given the fact that the use of technology today actually makes an attorney even more easily accessible than when communications were limited to office visits or phone calls.

Another concern of the NJ Joint Opinion is that the public may be misled by different office sharing arrangements where the attorney may work remotely until scheduling a fixed appointment with a client. Some states take a position contrary to New Jersey's and do not require that the attorney list the physical address in any advertisements or letterhead for the virtual law office. Indeed, providing a post office box address would be acceptable so long as the attorney does not claim that the legal services themselves are being performed at the post office box address. See, e.g., Pennsylvania Bar Association Comm. on Legal Ethics and Professional Responsibility, Formal Op. 2010-200 (2010). To the extent that virtual law offices are considered to be permissible forms of practicing law, the professional practice requirement (in some states) for an attorney to physically be in a specified office is reduced or eliminated.

Aside from the ethics opinion vantage, when should an attorney be in the office? From a career advancement viewpoint, there is something to be said for the old adage, “Out of sight, out of mind.” Being a “go-to” person literally requires one to be around for others to “go to,” notwithstanding one's virtual availability via cell, e-mail or otherwise. As a working attorney, can you get the assignments and work on the best projects if you are not around? Clients often do not allow us the luxury of adequate notice on projects, but rather demand immediate assistance. Are you there at the moment the rainmaking attorney needs you? Does “24/7″ mean you must eat, drink and sleep in the office?

The reality of being there when needed is important, but so is the perception of being available. And the perception of being hard-working goes hand-in-hand with the perception of being an attorney in great demand. Which leads us to our “blue jeans” story. The “suit and tie” formal attire rules were just beginning to weaken in the 1990s when our firm allowed the corporate department deal attorneys (who occasionally worked around the clock to negotiate and close big deals) to change into blue jeans for those all-night marathons. When they finished up the next morning, they would be seen in denim garb, on their way home for a few hours' sleep. Of course, some deals never turned into all-night events, but a few of the image-conscious associates would change to blue jeans anyway, and wear them in the office when they arrived an hour or so later than normal the next day. The rest of us were duly impressed by the growing number of corporate associates who must have been pulling all-nighters, because the blue jean attire proliferated ' although the billable hours didn't. Murphy's Law was at work: “Bad” blue jeans (i.e., those worn by attorneys who finished their deals well before midnight) were driving out the “good” blue jeans (i.e., those worn by attorneys whose deals truly took all night). For a while, blue jeans were a badge of honor, rather than mere casual attire that some firms now occasionally permit their attorneys to wear. But firm management finally caught on to the “bad” jeans. (I don't remember whether it was the monthly billings reports or tattling by the “good”-jeans wearers that brought the whole denim thing to a halt back then.)

When Should Attorneys Generally Be in the Office?

Beyond the minimal ethical requirements (such as those described in the 2010 New Jersey Joint Opinion described in Part One of this article), we know of no hard and fast rules on when you have to be in the office. Today's emphasis on billable hours is not “billable hours that start at 8:00 a.m. and finish at 6:00 p.m.” Nor is extra credit given for billable hours that start at 6:00 p.m. and finish at 8:00 a.m. Hours rendered at any time (if they are otherwise “good” hours) count equally. We submit a few rules of thumb that may apply for some of our readers, at least some of the time.

• Identify what firm management and the workplace expects of you, hours-wise ' even if your seniors don't live up to the model. This is clearly a case of “do as I say” and (depending on your workplace), also “do as I do.”
• Identify what your objective is, and how many hours it will take to achieve it. Is your goal to be a premier servicer of other attorneys, in one or more technical areas where you need to have established expertise? That may take countless hours ' in or out of the office ' to read, digest and stay abreast of technical developments that may be relevant to you. Is your objective to develop your own business clientele, in which case would you be better served mingling with them ' weekdays, weekday nights or weekends ' off premises? Is your aim to balance family commitments, personal lifestyle and outside interests with the demands of a law practice, and if so, can you maintain hours at the office while trying to accomplish everything? The only person who ever balanced his life's work perfectly was Eric Brenn, the dish-spinner on the old Ed Sullivan Show, who set a dozen plates spinning on top of a dozen long poles, and then dashed over to spin up each of the slowing plates that were about to crash to the floor. For the rest of us, perfect balance is only an aspiration, never to become a reality.
• For associates and junior partners, be there when virtually everyone else is; better yet, be there five minutes before everyone else arrives, and stay five minutes after. Avoid the “out of sight, out of mind” syndrome.
• Come down to the office once or twice a month on a weekend, to organize, visualize and strategize. (While you're there, it doesn't hurt your rep to leave voicemail messages for senior attorneys, proving you were a weekend warrior on the battlefield above and beyond the call of duty.)
• Late evening or weekend time on the premises can also enable you to do a little something extra ' consider preparing an article or speech for an industry or professional group, or a targeted group of clients. (You might just as easily prepare outside the office, if you have the mental discipline; but you won't be seen by colleagues or superiors on the premises if you do!)

Conclusion

There are no right or wrong answers as to exactly when an attorney should be in the office, or how many hours are enough (or too much). Physical presence without more may be good for perception, but does not necessarily translate into productivity, expansion of one's expertise, wisdom, wealth or well-being. We don't profess to have the answers. There are 168 hours in the week; how many of those hours do you need to be “in the office”? Zero is too little. One hundred is too much. What amount in between?

We welcome our readers' thoughts, comments and anecdotes on this point.

Sheldon I. Banoff, a member of this newsletter's Board of Editors, is a Partner in the Chicago office of Katten Muchin Rosenman LLP. He can be reached at [email protected].