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Teleworking no longer has to be seen as merely an accommodation for some employees who are a valuable asset to a firm yet have a life-style that demands a more flexible schedule than the traditional 8 to 5 office hours can afford. Teleworking does not have to be viewed as some peripheral, negligible employment arrangement, but rather as an integral part of a firm's operational efficacy. In the socio-economic context in which firms conduct their business today, teleworking can be regarded as a progressively conceived component of a firm’s sustainable growth, of its successful business strategy.

While addressing some of the key elements of a successful teleworking program in a law firm, this article primarily seeks to introduce a view of teleworking as a means by which a firm can demonstrate to its clients that an effective teleworking program not only reduces overhead expenses and increases recruitment and retention of qualified professionals, while maintaining the same or even increasing the quality of legal services provided, but also aligns the firm’s social and environmental concerns with those of its clients. While the logistical minutiae of teleworking may be contingent upon the economics and culture of each individual law firm, the philosophical considerations underlying the idea and praxis of teleworking in the first place are applicable to the industry as a whole. The specific guidelines for a teleworking paralegal of a so called two-person shop may not be applicable to a teleworking associate of a three thousand plus lawyers multinational firm. The strategic outlook of both firms should, however, incorporate the theoretical understanding outlined in the following.

When prominent companies such as Wal-Mart, DuPont and Sun Microsystems have individuals with titles such as vice-president for corporate strategy and sustainability, chief sustainability officer, or vice-president of eco-responsibility respectively, serve on their executive staff and address shareholders at their annual meetings,¹ one should take note of the discourse on environmentally and socially responsible business growth becoming increasingly mainstream. When the first page of The Wall Street Journal contains, under the heading “New Consensus,” an article titled “In Climate Controversy, Industry Cedes Ground,” subtitled “Support Grows For Caps On CO₂ Emissions; Big Oil Battles Detroit,” that begins with a one sentence paragraph, “[The] global-warming debate is shifting from science to economics,”² one ought to embrace the economic reality that ecological concerns and issues related to sustainable development are evolving out of topics of scientific and academic debate, out of causes championed by non-profit organizations, and out of tasks assigned to public regulatory entities, into substantive elements of corporate strategy, hence becoming an integral part of the global marketplace.

A summary overview of the premier business newspaper, The Wall Street Journal, reveals a very telling message companies are trying to send their audience. For example, ExxonMobil, whose spokespersons until not long ago would not even admit the validity of scientific research linking carbon emissions to global warming,³ is now filling the newspaper with ads touting the company’s energy conservation efforts and environmentally friendly approach.⁴ Wal-Mart, another major corporate player, has been aggressively promoting both its energy efficient consumer products and its employment of more sustainable materials in its own store building projects.⁵

The lesson law firms should take from this unambiguous discourse on environmentally sustainable development, regardless of any ulterior corporate greed a skeptic may want to adduce as counter-argument, is that clients who talk the talk and, whether genuinely or not, make a point of walking the walk will have similar expectations of the businesses serving their needs. Lest anyone in the legal industry already forgot, with the call for aggressive steps toward diversity initiatives, law firms received a poignant reminder of the weight carried by their clients’ social and cultural expectations and took active steps to improve their diversity efforts in recruiting, hiring and professional development.⁶ A firm would be hard-pressed today to claim that effective diversity programs are not only a reasonable client expectation and requirement but also sound business strategy. In the words of Lenora Billings-Harris, a prominent consultant on the subject of diversity: "Worldwide social demographics are shifting, and firms need to embrace diversity in order to keep up with rapid change."⁷ Similarly, no law firm manager, whether partner or administrator, should ignore the corporate call for action on the energy front.

While the previous section highlighted initiatives reflective of the fairly recently adopted environmental consciousness of major corporations and the reasonable projection that the latter will have similar expectations from law firms representing their interests, one should not ignore the social and cultural component of sustainability. The recent history of diversity initiatives, for instance, serves not only as indicator of client expectations and demands but also of social and cultural transformations in the workplace and society at large.

In recent years, generational differences between senior partners and junior associates, shifts in their respective work habits and career expectations and their divergent worldviews have received a great deal of attention.⁸ The search for alternatives to the traditional partnership track bound lifestyle of a law firm associate has become a staple of both legal industry seminars and conferences and professional development programs in law firms.⁹ The once glorified hard earned path toward firm ownership is seen by many representatives of the younger generation of attorneys as an onerous journey, involving the notorious twelve to fourteen hours of travail in the office, in meager hopes of an illusive partnership of questionable desirability. This state of affairs and the perception thereof have been the topic of much discourse in recent legal industry literature.¹⁰

Few managing partners, firm administrators or human resources managers would argue with the assessment that today’s law firms are – and if they are not, they definitely should be – engaged in what is essentially a treasure hunt for creative ways of attracting, retaining and developing talented legal professionals. Few could deny that there are but two approaches the management of a law firm can take when beholding the future of its intellectual and social capital and hence the future of its existence as a business entity. One is to be pro-active in understanding the constantly changing dynamic of law firm demographics, including its cultural and social trends. The second one is to simply do nothing and let the chips fall where they may, so to speak. Though the latter may often initially seem to be the less time consuming and less costly approach, sound business sense would dictate that the former is a much wiser and, in the long run, more successful option.

The point of the previous two sections has been to offer a frame of reference for a law firm’s consideration of teleworking as an element of progressive organizational development. Teleworking cannot and should not be seen as something an entire firm should aspire to, nor can and should it be viewed as a solution to all employment relationship issues a firm faces on a daily basis. Teleworking can and should instead be viewed as one among many operational components that can address environmental and social concerns, not only without detriment to the bottom-line of a firm’s business but, in fact, with measurable value added to it. This section contains basic suggestions on understanding teleworking as part of a law firm’s business in general and on transforming a law firm’s existing teleworking program or implementing a new one in such a way as to make it a profitable, sustainable proposition.¹¹

Teleworking is by definition an outgrowth of the need for flexibility in employment relations. From an internal perspective, most law firms have a business model that lends itself particularly well to flexible working arrangements. Their ultimate goal is the generation of billable hours. Billable hours are “an outcome-based performance measurement system that levels the playing field between remote and office-based workers.”¹² Theoretically, it should not matter at all where an attorney or a paralegal is located, but rather what she generates, that is, how many billable dollars/hours. Hence, a supervisor can and should manage results rather than presence in the office. The locus of a timekeeper’s generation of billable work should be of little importance compared to the quality and quantity of the work. The same view can be upheld from an external perspective as well. A client should not be concerned with where the attorneys and paralegals working on the client’s cases are located, but rather with the quality and quantity of the services rendered. Though a billable hours based fee arrangement yields a more immediately identifiable performance measurement, alternative billing arrangements in no way preclude the applicability of the same outcome-based philosophy. Ultimately, a law firm is a professional services firm, i.e., a business entity providing intellectual goods, not physical merchandise that requires a physical location of assembly, physical means of production and a physical labor force. There is, at least theoretically, no reason why this sort of supply of goods could not accommodate a working arrangement like teleworking.

If legal services are not location-bound, why is teleworking not more prevalent in law firms? Essentially, for one reason only, namely, the engrained belief of a particular segment of the law firm establishment that an attorney’s or a paralegal’s presence in the office is a clear and distinct indication of hard work, good work, billable work, commitment to the client, devotion to the firm, promise for the future, continuation of business, and anything and everything from basic human decency to far reaching professional success and societal achievement. Though the previous statement is obviously an exaggeration, it contains the ideological kernel of resistance to teleworking as an effective, profitable, sustainable business element. The following passage, including a quote from an associate of a large international firm, captures this idea very well:

Today’s associates grew up riding the great wave of technology. As a result, they are used to the perks of technology-enabled capabilities, like speed, efficiency and remote access. Such perks can enable outside interests to co-exist with billable time. But try telling that to senior partners, some of whom still may not be comfortable with technology. “There is a generation gap that presupposes that if you are not in the office, then you are not working.”¹³

The secret to combating the obsession with being in the office and to inculcating the view that a law firm should be regarded as a net-centric rather than a building-centric organization, particularly in a day and time when technology enables nearly instant cross-continental audio-visual communication, may remain just that, a secret. That does not mean, however, that no steps can be taken to implement and/or continue an effective and profitable teleworking program. Such a program revolves around two essential ingredients, namely, solid technology and sound guidelines.

The technological requirements for a teleworking program are minimal, both materially and financially speaking. Teleworking is based on the availability of a virtual private network (VPN) and high speed internet access. All else is but incidental. The cost of utilizing a VPN is fairly low, and most firms with multiple offices have one already anyway. The cost of a high speed internet connection in the teleworker’s home, as well as the cost of all other equipment necessary to properly telework, such as a computer, a phone, an office set-up, basic office supplies, etc., can all be deferred to the teleworker herself, as part of the teleworking agreement.

A firm may choose, of course, to invest in additional technological support for teleworkers, such as laptops, desktop computers, printers, phones, fax machines, etc. One ought to keep in mind, however, that the more the firm supplies, the more the firm is responsible for. Also, though there should be few if any concerns regarding disparate treatment of an employee who teleworks over against one who does not, one ought to be reluctant to supply different technological support to different teleworkers who perform similar jobs. In other words, one should ponder the financial and legal implications carefully before deciding to equip teleworkers with more than necessary. A teleworking program is more likely to be successful if the burden of responsibility rests with the employee rather than the employer.¹⁴ A law firm can have a functional teleworking program with no expense in addition to its regular overhead, other than that of a VPN and, of course, the initial time invested in drafting proper guidelines and protocols.

Carefully drafted guidelines and protocols for teleworking and a well written teleworking agreement are the backbone of a successful teleworking program. Fortunately, there is an abundance of free relevant information available from a variety of sources, and most attorneys in a law firm will possess much of the knowledge necessary to fine-tune and tailor standard verbiage to the specific circumstances of the firm.¹⁵ Depending on each organization’s size, areas of law, number of offices, scope of teleworking program, and so on, teleworking guidelines and agreements may differ from firm to firm. Regardless of individuating factors, though, a viable teleworking arrangement in any law firm is firmly grounded in two theoretical bases that should be clearly expressed in the guidelines, agreements and all other related documentation, namely, limitation in scope and flexibility. A teleworking program that provides for a reasonable and legally sanctioned degree of latitude, and from which no one in the firm, from the most senior partner to the most junior paralegal, has unrealistic expectations, cannot but be both manageable and effective, hence disproving the view that presence in the office necessarily translates into productivity.

Limitation in scope can be achieved through simple internal communication, which is a formal way of saying: through talking to the right people. There is no need to pay McKinsey or Deloitte to perform an elaborate feasibility study on which supervisor-employee relationships in a firm most likely lend themselves to successful teleworking arrangement. All it takes is a brief rational request from firm management to all individuals in a supervisory role to assess, first, their own openness to a teleworking relationship with their employees, and second, their employees’ suitableness to such. This assessment may be carried out along the following basic lines:

Once this assessment is made at the supervisory level, those supervisors expressing an interest in allowing their employees to telework can be assisted in discussing teleworking with said employees. This amounts to no more than simply presenting teleworking as an option and then, if the employees themselves express an interest, covering the essential aspects of the arrangement.

The fundamental concepts of a teleworking arrangement are best expressed in the following paragraphs. They contain the sum totum of an effective teleworking program. Beyond these ideas, everything else is circumstantial and can be woven in and out of a firm’s teleworking documentation depending on the specifics of the firm.

Teleworking, the practice of working at home for a limited number of days instead of working in FIRM’s office, is a work alternative that FIRM offers to some employees when it benefits both FIRM and the employee. Teleworking is not a formal employee benefit, but a work scheduling practice that helps employees balance the demands of their work and personal lives. Teleworking is a privilege, not a universal benefit or employee right.

A candidate for teleworking must be a FIRM employee with a history of good or better job performance ratings and with no record of conduct issues. An employee that is considered for teleworking must be able to work independently, be a self-starter, and demonstrate skills managing time in a productive manner. The decision to telework must be approved by the employee’s supervising partner.¹⁶

Scope of Agreement – Employee agrees to perform services for FIRM as “teleworker.” Employee agrees that teleworking is voluntary and may be terminated at any time, by either the Employee or FIRM, with or without cause.

Term of Agreement – Employee agrees to telework during an initial 60 day trial period beginning ___ and ending ___. This agreement may be extended beyond the initial trial period if agreeable to FIRM and to the employee. In such case, the terms of this agreement shall be reviewed and updated if necessary.

Termination of Agreement – Employee’s participation as a teleworker is entirely voluntary. Teleworking is available only to eligible employees, at FIRM’s sole discretion. Teleworking is not an employee benefit intended to be available to the entire firm. As such, no employee is entitled to, or guaranteed the opportunity to, telework. Either party may terminate Employee’s participation in the program, with or without cause, upon reasonable notice, in writing, to the other party. FIRM will not be held responsible for costs, damages or losses resulting from cessation of participation in the teleworking program. This Agreement is not a contract of employment and may not be construed as such.¹⁷

As is evident from these stipulations, a teleworking program in a law firm does not have to be and should not become part of an employee benefits package. As long as the same program guidelines are applied to all employees who participate in the program, there is little reason to be concerned about disparate treatment toward employees who are non-participants. One cannot emphasize enough how crucial it is to appropriate a healthy understanding of teleworking as something that is not for everybody, cannot be for everybody, should not be expected from everybody and should never be presented as such.

The limitation in scope of a firm’s successful teleworking program also extends to the level of “buy-in” that can reasonably be expected from the firm’s shareholders. Some supervisors will simply never agree to having their employees telework, whether or not they endorse teleworking in principle. Nonetheless, the “beauty” of a well thought out teleworking program lies precisely in the fact that it can exist without harming those opposed to it in any way whatsoever, since they simply do not have to be involved. This could also be seen as another reason to maintain the amount of technology invested in teleworkers to a minimum, so that those shareholders who may not agree with the business value added to the firm by the teleworking program will not feel as though they are unduly sharing in the overhead cost of maintaining it.

Teleworking may be effective anywhere from 1 hour per week, to 10 hours per week, to 20 hours per month, or any amount of time that best suits the already existing working relationship between a supervisor and her employees. What may work one week or one month may not be manageable in the following. Proximity to the physical files related to one particular case may be essential. Participation in team sessions for an important trial preparation in another case may be necessary. Neither one of these scenarios, however, precludes teleworking from being possible in principle, when the opportunity lends itself. Once a teleworking program that is limited in scope has been put in place, teleworkers should easily “drift” in and out of participation in whichever way is most lucrative for both their firm and themselves.

The following hypothetical scenario illustrates real life experiences most likely encountered by anyone who has spent more than a few days in an office environment. It exemplifies how an employee’s coming to and being in the office for a rigorous 7.5 or more hours every single day, can in fact lead to less productivity at a higher cost to the firm, while her teleworking, on even a limited basis, can lead to increased productivity at a higher benefit not only to the firm but also to the more extended community and the environment. The point this scenario brings home is that teleworking can be viewed as a progressive strategic move on the part of a firm that understands itself as both in tune with its direct or indirect clientele as well as its larger economic, social, political and environmental context.

Imagine a fictional paralegal named Sue. Sue works for a law firm located in a central part of Atlanta, 20 miles from Sue’s home. Although one of the fastest growing metropolitan areas of the United States with a thriving economy and steady population influx, the Metro Atlanta area does not currently boast a public transit system that can accommodate the number of commuters pouring in and out of its borders on any given day.¹⁸ Sue therefore drives to work and gives herself plenty of time so as not to be tardy. On this particular day, there is yet another accident on the interstate highway on which she usually travels to work. The accident causes significant delays. Sue calls her supervising attorney, who happens to live in a new condominium two blocks away from the firm, hence not having to battle traffic, and informs her that she will be late. The attorney, however, had urgent work that she expected Sue to accomplish as soon as possible, work that will now have to be delayed.

Thanks to the horrendous traffic problems, Sue arrives late for work. The parking lot is now fuller and therefore it takes Sue longer to find somewhere to park, and when she finally finds a parking spot, it is much further from the firm office than the ones in which she would park otherwise. Her delay has now been exacerbated. When Sue finally arrives at her actual workstation, she is already frustrated by the heavy traffic, lack of nearby parking and long walk to the office. Her frustration is now increasing due to her supervising attorney’s explicit irritation with the delay of her project. Sue’s delay continues due to her attempts to explain to her supervisor why she was late, then by her time spent in the break room, pouring more coffee than usual and discussing the bad way in which traffic has affected her. Sue now starts to worry about taking off from work for her son’s doctor’s appointment the following day, given that her supervisor is concerned about her tardiness and that she may not be able to finish the work expected of her in due time. Sue’s frustration is now increasing, and yet again more time is wasted when she calls the doctor’s office to reschedule her son’s appointment, being placed on hold for a while, and then complaining to her close co-workers on how great the doctor himself is but how difficult his receptionist can be. Sue’s stress level increases further when she contemplates the financial implications as well, since there was not enough notice of cancellation of appointment, so she will now have to pay an additional fee at the time of her appointment.

There is no need to continue with the minutiae of this narrative. Anyone familiar with the daily office life has seen this sort of scenario play out more than once. The point is that this paralegal’s work product, overall performance and health can be negatively affected by compounded delays in her actual productivity, heightened stress level, wasted time of co-workers and supervisor. If the above scenario occurs two to three more times within a few months, although the paralegal is an otherwise excellent employee, she may face disciplinary action affecting her compensation, benefits, etc., which in turn may further increase her stress level, yet again contributing to even lower productivity, higher risks of adverse health events, therefore higher risks of medical expenses that in the long run will cost both her and the firm more money.

One solution to overcoming the long-term negative impact of scenarios such as above is, of course, allowing Sue to telework. The entire chain of what, on the surface, appear to be mere mundane inconveniences but, in the long run, can become significantly negative factors would simply be avoided altogether if Sue were able to work from home. Even if she were allowed to do so only half of the day, the arrangement would imply either her being able to travel at times other than peak traffic hours or her being able to schedule her son’s doctor appointment outside of the hours when she is physically present in the firm’s office, or both. Sue’s being able to telework allows her to be more productive, healthier and a more satisfied and hence loyal employee. It also saves the firm money by keeping her medical expenses from increasing, from having to discipline or possibly dismiss her, from having to employ additional help to work on projects in which she has been delayed, and from having her supervisor in a position to obtain the work she needs in a timely fashion, of higher quality, and with the result of having the supervisor herself be more productive, happier and healthier. One Sue, so to speak, may not make or break a firm’s success. Many “Sues” and all of their supervisors, however, can have a dramatic impact on the firm’s achievements, either a negative one, when being in the office at all times is considered essential to their performance, or a positive one, when being productive, regardless of location, is seen as the key ingredient of their and the firm’s competitiveness.

Aside from the evident advantages of a teleworking Sue, in terms of her and her supervisor’s increased productivity, there are other positive implications of her working from home rather than in the office that are often not given any consideration by firm management. When Sue is working from home, even just part of the day, her workstation computer and desk/office light can be turned off; she does not use the elevator in the building or the microwave in the firm break room; she does not use water in the restroom and break room. She uses fewer office supplies, disposable utensils, paper products, tea, coffee, and any other goods that the firm provides to its employees, whether for personal convenience or in order to facilitate their performance of their job. The cost for all these so called minor, incidental items can be shifted to the teleworking employee. Though the savings generated by one Sue teleworking one day per week may arguably never translate into any significant savings to the firm, one cannot deny the positive impact on a firm’s overhead expenses if many “Sues” telework several days per week, for many years. From the firm’s perspective, it is simply undeniable that a teleworker is a more energy efficient human resource than an employee working in the office eight hours per day, five days per week.

Last but not least, if Sue usually commutes to work in a personal vehicle powered by a traditional combustion engine, her teleworking instead allows her to use less fuel, having to drive less, or having to drive at less congested times. This results not only in less fossil-fuel being consumed, but also in fewer carbon emissions being released into the air. Once again, one person may have little impact, but that impact multiplied can gain significance.

When the President and CEO of PepsiCo, Indra Nooyi, states that “[financial] achievement can and must go hand-in-hand with social and environmental performance,”¹⁹ the leadership of a law firm can either heed the emphasis on sustainability in the growth of its business or simply continue with its established growth practices and antiquated business models, however unsuccessful, amorphous and imprecise they may haven proven to be. This article is based on the assumption that the former is a more astute and, in the long run, successful embrace of the current socio-economic conditions of the world of law firm clientele. Unless a paradigm shift occurs in the culture of younger professionals, they will continue to seek a more balanced life-style necessitating flexible schedules and mobility and to be increasingly concerned with socially and environmentally responsible business practices.

When properly conceptualized and implemented, a teleworking program can demonstrate a firm’s forward thinking by blending responsible citizenship with sound business strategy. A law firm that intends to remain competitive in the contemporary global economy can and should regard teleworking as an essential tool in aligning business interests and achievements with socio-cultural awareness and environmental concerns.

1. See, e.g., Andrew Ruben, Wal-Mart’s vice-president for corporate strategy and sustainability, speaking at his company’s 2006 shareholders’ meeting, http://walmart.feedroom.com, [accessed 1/30/07].

2. Jeffrey Ball, Jan. 23, 2007, pp. A1, A17.

3. "ExxonMobil softens its climate-change stance," Jeffrey Ball, The Wall Street Journal, Jan. 21, 2007, available at http://www.climateark.org/shared/reader/welcome.aspx?linkid=67326 [accessed 3/12/2007].

4. See, e.g., advertisements on pp. A7 and A16 of The Wall Street Journal, Feb. 16, 2007.

5. See , e.g., “Yahoo, Wal-Mart join light bulb campaign to fight global warming,” Terence Chea, Associated Press, Feb. 21, 2007, available at http://www.examiner.com/a-578150~Yahoo__Wal_Mart_join_light_bulb_campaign_to_fight_global_warming.html [accessed 3/12/2007]; also, “Wal-Mart renews green pledge at S.F. forum,” Kate Williamson, The Examiner, Feb. 22, 2007, available at http://www.examiner.com/a-579017~Wal_Mart_renews_green_pledge_at_S_F__forum.html [accessed 3/12/2007].

6. See, e.g., “Diversity Symposium to Focus on GC’s Challenge,” Meredith Hobbs, Daily Report, Jun. 27, 2005, pp. 1,4; “Wal-Mart May Roll Back Business With Some Firms. Outside counsel must have diversity at the top, GC says,” ibid., Jul. 6, 2005, pp. 1,2; also, “Law firms step up gay-hiring initiatives, Leigh Jones, ibid., Jul 21, 2006, pp. 1,5.

7. Diversity means business,” Legal Management, Association of Legal Administrators, Sep./Oct. 2006, pp. 26-34.

8. See, e.g., “The Great Divide. Partners and Associates Are at Odds Over Opposing Approaches to Work, Play and the Practice of Law,” Jill Schachner Chanen, ABA Journal, American Bar Association, May 2006, pp. 45-49, for a succinct but very insightful treatment of the subject.

9. See, e.g., “Lawyer Satisfaction,” Partner’s Report for Law Firm Owners, Institute Of Management & Administration, Aug. 2006, available at http://www.ioma.com/issues/PRLAW/2006_8/1609221-1.html [accessed 7/18/2006]; “Counsel on Call taps lawyers’ need for flexibility,” Leslie Williams Johnson, Atlanta Business Chronicle, Feb. 10-16, 2006, p. 3B; “The Elusive Work-Life Balance: Can You Really Have It All?” e-announcement of upcoming webcast by West LegalWorks, Thomson West, Feb. 27, 2007; “Emerging Strategies in the War for Talent: New Models for Professional Development and Training,” brochure for upcoming conference by West LegalWorks, Thomson West, May 10-11, 2007.

10. A comprehensive treatment of the subject can be found in “Is Partnership their Goal? Next Generation of Professionals May Not Want What You’ve Got,” Karen MacKay, Legal Management, Association of Legal Administrators, May/Jun. 2005, pp. 42-49. See also “Law-Firm Life Doesn’t Suit Some Associates,” Ashby Jones, The Wall Street Journal, May 2, 2006, p. B6; “Midlevel associates grouse about workload,” Elizabeth Goldberg, Daily Report, Aug. 4, 2006, pp. 1, 8-9. For a reference to similar concerns outside of the legal industry, see, e.g., “A New Generation Gap: Differences Emerge Among Women in the Workplace,” Jeffrey Zaslow, The Wall Street Journal, May 4, 2006, p. D1.