By Nadine Haines

On Wednesday 25 March, New Zealand entered a mandatory Level 4 lockdown period of four weeks (extended to five), intended to stamp out COVID-19. With only two days warning, non-essential businesses scrambled to ensure their staff could work from home, to protect the very survival of their business. For many industries and professions, such as tech companies and online businesses, this transition was relatively easy. Staff leaving the office on Tuesday 24 March simply picked up where they left off on Wednesday 25, utilising cloud platforms, video conferencing and other smart technologies to resume business in the ‘current new normal’.

Others, however, struggled to adapt. Without the necessary technologies to access vital information, and connect with colleagues, productivity was severely impacted. In addition, many workers were juggling several balls – including care of younger children and supervision of school-age children’s learning – while attempting to do their jobs effectively.

Law firms with existing flexible working systems will undoubtedly be less impacted by the economic impact of COVID-19. Such systems typically enable their staff to access company documentation and information from the cloud effectively from home, facilitate and attend virtual meetings, and self-manage their work requirements and deadlines to fit with other responsibilities they may have.

Flexible working can be generalised as any alternative work arrangement which falls outside of the traditional office-based, five-day, 37.5 or 40-hour working week. Common examples include part-time (working less than 37.5 or 40 hours), flexi-hours (eg, starting and finishing earlier), job-sharing, and working remotely.

Factors which drive flexible working

Many factors are driving the demand for flexible working. Research by The Australian Institute of Management and Sarah Taylor identified a growing sandwich generation, where employees are caring for both children and elderly parents. Other drivers include demographics, an ageing workforce, time/cost factors, technology, legislation and, enhanced work-life balance. (AIM 2012, Managing in aflexible work environment,and Sarah Taylor, 2017, Valuing our lawyers: the untapped potential of flexible working in the New Zealand legal profession.

Benefits of flexible working include attracting/retaining talent, increased productivity/efficiency, cost savings, enhanced culture/staff loyalty, greater employee creativity (intrapreneurship), reduced stress/healthier employees, increased job satisfaction, and enriched work-life balance.

While there are challenges shared by all sectors in implementing flexible working arrangements, three factors are specific to, and, especially challenging for the legal industry. These include the ability to meet client expectations, the legal services model, and law firm culture.

The legal industry can be generalised as having ‘high service delivery expectations to clients’ (McMahon, C & Pocock, B 2011 at page 10, Doing things differently: case studies of work-life innovation in six Australian workplaces. The traditional law firm functions on a single trusted advisor model, where clients typically deal with one lawyer. This model makes it difficult for people to work flexibly, while meeting high service levels. These views are supported by a 2009 study into perceptions of part-time work in Australian organisations. The study found that part-time staff were frequently excluded from client-facing work, to avoid the risk of poor perceptions, by clients, around staff availability (McDonald, P, Bradley, L & Brown, K 2009, "Full-time is a given here: part-time versus full-time job quality", British Journal of Management, vol 20, no. 2, pp. 143-157).

The legal services model, particularly billing structures, is well documented as a barrier to flexible working. The traditional model focuses on inputs to maximise the billable hour, thereby driving a culture of long working hours. This aligns with Neuberger’s view that the commitment required by law firm employees and partners is attributable to the billing structure (Neuberger, D (Lord) 2014. Accordingly, flexible working may be viewed negatively under the traditional law firm model, as it is not necessarily consistent with maximising billable hours.

Law firm culture is more difficult to address, as it overlaps almost every challenge faced by law firms in implementing flexible working. Some firms will have an existing positive culture, where new initiatives are met with enthusiasm and excitement. For others, resistance is likely to be encountered by many individuals, including management and partners. Dikkers et al. (cited in Timms, C, Brough, P, O’Driscoll, M, Kalliath, T, Siu, OL, Sit, C & Lo, D 2015, "Flexible work arrangements, work engagement, turnover intentions and psychological health", Asia Pacific Journal of Human Resources, vol 53, no 1, pp 83–103) proposed the concepts of supporting and hindering culture, suggesting that organisations with a supporting culture value work-life balance, while organisations with a hindering culture require employees to prioritise work above all else. Hindering culture is common in the traditional law firm model, with the industry well-known for its long hours, presenteeism, and competitive nature.

With flexible working defined and the drivers, benefits and, challenges discussed, how can law firms practically implement flexible working? Given this level of change requires a significant modification of business practices, effective change management, together with top management support, is critical. There are two change management theories and frameworks can be used to guide the implementation process.

Theories of planned change are the backbone of successful change initiatives. These frameworks outline the steps and actions which must be followed for a change initiative to be effective (Waddell, DM, Creed, A, Cummings, TG & Worley, CG 2017, Organisational change: development and transformation, 6th ed, Cengage Learning, Australia). While there are many planned change models, utilising an appropriate model is crucial, as ad-hoc change initiatives are unlikely to be successful. Research shows 70% of all change initiatives fail, and 29% are undertaken with no formal structure (Blanchard, K 2010, "Mastering the art of change", Training Journal, January, pp 44-47).

The second framework is organisation design. This is undertaken when the change initiative requires ‘new ways for the organisation to function and members to behave’ (Waddell et al. 2017, p 330). It considers aspects such as structure, work design, human resource practices and management, and information systems. Organisation design can bring many benefits. For example, redesigning a workplace to be activity-based and introducing flatter organisational structures can improve creativity, collaboration, and ideas generation (AIM 2012).

Finally, research has identified management support as a critical success factor. The New Zealand Law Society, in its flexible working guidelines, encourages partners and managers to ‘lead from the top’ when implementing flexibility. While AIM (2012, p 21), consider managerial attitudes to flexible working to be ‘make or break’ factors. Without management support, a change initiative is unlikely to succeed.

However, before embarking on a change management initiative to implement flexible working, the three primary challenges discussed earlier must be acknowledged and addressed. This can be undertaken in the following ways:

Meeting client expectations

• Open an early dialogue with clients and be proactive about addressing negative perceptions. A Perth firm, in its flexible working implementation, found early communication and regular check-ins, to ensure the client’s needs are being met, to be beneficial (McMahon & Pocock 2011).
• Create a working group, with representatives from all levels of the firm, to brainstorm ideas. Develop a pilot programme and enlist one or two trusted clients to trial it. Monitor to ensure client satisfaction.
• Write success stories and collect and collate customer testimonials for future use.

Legal services model

• Rethink the legal services model and the firm’s strategic direction. Consider the long-term gain, rather than the short-term pain of moving away from time-focused billing. Concentrate on outputs rather than inputs.
• Utilise organisational design principles to redesign how the work could be done and how it could be supported under a flexible working framework.

Culture

• Address the underlying cultural elements within your firm. Is there a culture of long hours and/or presenteeism? Undertake an anonymous staff engagement survey, ideally by an external third party, to determine where the issues lie.
• Tackle the most significant issues first and ensure managers at all levels are actively encouraging the uptake of new practices, once implemented.

Expertise

Where the change seems difficult, or even impossible, bring in the big guns. An experienced change management consultant comes armed with the knowledge and tools to help organisations introduce meaningful change. The right change consultant will expertly guide the change initiative, working with law firm managers and personnel to bring about positive, lasting change.

In summary, the challenges of meeting client expectations, the legal services model and law firm culture must be addressed and overcome, before commencing the change initiative. Top management support and the use of an effective, experienced change management consultant are critical to success. As are the right change management tools, which support a positive approach to the change and effectively address employee concerns and resistance.

The impact of COVID-19 has and will continue to force law firms to confront new ways of working. Those who view this forced change as a catalyst to implement flexible working will be better placed to remain competitive in this ever-changing legal landscape.

Nadine Haines nadine.haines@icloud.com is a former Practice Manager of Wellington firm Wigley & Company and is now based in Christchurch. This article contains excerpts from her MBA final project “Implementing flexible working in the legal industry: overcoming the challenges from a change management perspective”.