Biglaw, Billable Hours, Boutique Law Firms, Small Law Firms

From Biglaw to Boutique: Working from Home

Tom Wallerstein

“I am having a root canal this morning, so I’ll be working from home.”

Some attorneys use the expression “working from home” to mean that they are mostly taking the day off for one reason or another. In other words, they really mean that they are “not working.”

Other times, “working from home” really means “I’m still working, just not in the office.” I might do this, for example, to avoid a long commute or because I can better tackle my project at home, perhaps because my home will offer fewer distractions.

Assuming that “working from home” means that you still are working, albeit in a different physical location, should a firm care when or whether an attorney comes into the office, provided nothing time-sensitive needs to be accomplished that day?

I think so.

Elie recently wrote a post criticizing heavy-handed punctuality rules meant to ensure that staff are in the office by a certain time. Later, a colleague of mine expressed his opinion that, provided billable hours are high, face time is not so important. Last week we saw a flowchart describing when it is ok to go home for the day.

But there are several reasons why, from the firm’s perspective, physical attendance can be important, especially in a smaller firm or boutique.

As I expressed in an earlier post, “[b]eing present . . . allows you to discuss cases or ad hoc legal questions that arise, but that would not warrant a telephone call or email. If I see an associate at his or her desk, I am much more likely to pick their brain about something. If I know the associate is working from home, I may not bother to email or call with the same question.” Thus, the firm gains more value from an associate who is present in the office than it does from one who is working remotely, even if they are billing the same number of hours.

Billable hours also cannot substitute for having partner/manager supervision of the office, especially in a small firm. All employees, even professionals, tend to be more productive and efficient when they have appropriate supervision.

It also is important to have partner coverage for emergencies that arise, for clients that call, or other contingencies. Clients and colleagues who call the office and learn that no partners are available may not mention it, but they may believe that the office is not “serious” and fear that their matter is not getting the attention it would receive in a big firm.

Another factor is the cumulative effect of delay. For example, an associate might have discovery requests ready to serve, but needs partner sign-off. If no partner is around to do that, the discovery doesn’t get served that day. In itself, that might not be a big deal, but that dynamic is repeated over and over. Things that might get done today get deferred until tomorrow. Even if the partners are available remotely, associates and staff will defer acting on things until they can speak to a partner in person. The cumulative effect of this delay is to leave money on the table.

Finally, an attorney who is “working from home” is often less productive than when they are working in an office.

A firm can’t guarantee that hours spent in the office will be spent productively. But by expecting attorneys to be in the office for certain minimum times, it can ensure it will gain these other benefits.

None of this is to say that rigid punctuality rules are necessary. I agree with Elie that attorneys should be able to come in earlier or leave later when convenient. One of the advantages of being a professional is being treated like an adult.

But small law firms also have important differences from Biglaw. For one, annual billing requirements are often less onerous. Assume your employer reasonably expects you to work at least full time, or 40-hour weeks for 48 weeks per year. This equates to working 1,920 hours per year. If you are billing 2,400 or more hours a year, then you necessarily are working far more than 1,920 hours per year, regardless of where you physically are at any given time. But if you are billing 1,500 or fewer, then, conceivably, you are working fewer than 1,920 hours per year (depending on your billing-to-working ratio). In other words, at some point, the firm cannot use billable hours as a proxy for working at least 40-hour weeks.

Also, in Biglaw, there will always be other associates who can be called upon for discrete projects or emergency help. In a small firm, one less body could be critical. Similarly, in Biglaw, cases tend to be bigger, and with bigger teams. Each individual team member is less important and there is more likely to be someone else who knows what is going on in a given case. In a small firm environment, each attorney more likely plays a critical and irreplaceable role in their case.

In Biglaw, the firm economics can absorb the loss of two or three associates on a given day. In a small firm, that has disproportionately greater effect on the bottom line.

Maybe you’re planning on leaving your firm for greener pastures. You still have to work that eight-hour day, whether you like your job or not. It behooves you to keep your day job until your night job pays.

I don’t think it is ever acceptable for managers to act like tyrants. Rigid punctuality rules strike me as unnecessary and inappropriate for attorneys. But expecting a minimum or defined amount of in-office time is not treating associates like children. Even professionals are sometimes required to be physically present at certain prescribed times.

Attorneys should consider why their firms might want them in the office, even if they are capable of working from home. By understanding the firm’s perspective, you are better able to manage expectations and get time off when you need it and deserve it.


Tom Wallerstein lives in San Francisco and is a partner with Colt Wallerstein LLP, a Silicon Valley litigation boutique. The firm’s practice focuses on high tech trade secret, employment, and general complex-commercial litigation. He can be reached at tomwallerstein@coltwallerstein.com.

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