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For most folks, the term “leave” means to leave. Even in the workaholic, billable hour model of Biglaw, people expect that when they invoke family or medical leave they will actually get to leave their job and deal with whatever issue they have to deal with.
One Biglaw firm recently took an opportunity to disabuse attorneys of this notion, reminding them that family and medical leave is all well and good, but that there’s more than enough time in the day to look up from your ventilator and do a little work for the firm!
This comes from Pryor Cashman’s Donald Zakarin, co-chair of the firm’s Litigation and Music Groups and the M+E Litigation Practice:
On the one hand, this is some truth here.
The firm owes its lawyers leave, but a a licensed attorney’s professional and ethical obligations run separate from employment. A client’s malpractice claim doesn’t really care if the lawyer missed that deadline because of leave or incompetence. Courts are out here actively denying scheduling changes for pregnant lawyers, if you want a sense of how the gatekeepers of the profession perceive the issue. It may not be right, but it’s reality and firms can’t have anything slip through the cracks.
But on the other, more accurate hand… this is 100 percent the firm’s problem and not an individual attorney’s. Historically, when correspondence came in through the mail or over the phone and got intercepted by admins, lawyers didn’t have to deal with this problem on leave.
Family and medical challenges aren’t any less difficult just because law firms spent the last 20 years going digital and laying off secretaries.
Firms have a whole host of straightforward measures they can take to keep clients protected when an individual attorney goes on leave. Checking email is actually one of the simplest. Verify that other attorneys in the firm are listed to receive ECF notifications! Set up an out-of-office notification at the administrative level! Have an “out of office” admin on call who is cc’d any time that message is triggered and can then perform any needed followup!
Even better, automate the process so emails related to specific matters get forwarded to appropriate team members! I mean… have you ever heard of ZERO? They’ve been doing this for a long time at this point. Treat leave like the firm would treat an attorney leaving the firm and employ systems that identify the subject based on the addressees and the context and then pushes messages where they need to go.
Speaking of professional obligations, this is part of why attorneys join a firm in the first place. Lawyers congregate with other lawyers so they don’t don’t have to sit staring at their child in the NICU or schedule a funeral for their spouse and keep stepping away to sort through 200 emails in case ONE relevant email went SOLELY to the attorney on leave. Even if the situation isn’t dire, someone trying to care for a two-week-old already has a full plate of overneedy whining to deal with without worrying about a client.
Depending on individual attorneys to do this kind of work during leave isn’t just bad for the lawyers, it’s bad for clients. You don’t WANT to leave it to a human being dealing with whatever the issue is on leave to figure out their email. You owe it to the clients to deploy system-level procedures instead of banking on, “Yo, Cindy, if you aren’t too busy with that broken leg, can you take a second to VPN in and methodically check all your messages in case you missed something?” The firm’s obligation — to clients and attorneys alike — is to figure out how to serve clients even when an individual lawyer isn’t available.
Asking the lawyer to check email on leave is, admittedly, one solution. But as solutions go, it’s a bad 1997 answer to a 2023 problem.
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.
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