As previously reported by Lawyers Weekly, many legal candidates have jumped ship coming out of statewide lockdowns to move either interstate or, when travel restrictions were eventually lifted, overseas. And those who have stayed value flexibility more than ever before.

However, there is a slight “mismatch” between what works best for the employer versus individual employees, Taylor Root partner and head of Australia Hayden Gordine revealed to Lawyers Weekly.

“The problem employers are facing is that mismatch can be fundamentally different between practice groups and teams. A practice group [that] is predominately junior or contentious-focused is likely to prioritise office time, while a team stacked with senior associates can almost entirely work from home. What we are seeing is a firm-wide policy generally based around a ratio of three days in the office and two days from home, but the reality is there are different working patterns within the firm for certain practice groups and teams,” he explained. 

“These differences show that there is no single solution, but a multipronged approach is working the best to attract and retain employees. The disconnection comes when individual employee expectations differ from what is best for the team. Due to the current employment market, employers are showing flexibility to these individuals in order to retain them, but this appears to be changing rapidly as work patterns settle.”

In certain situations, this mismatch is creating a number of issues for firms trying to attract lawyers — with mid-level lawyers and senior associates in high demand.

“In-house legal departments tend to have different extremes from five days in the office to completely remote. Five days in the office dramatically reduces the talent pool when seeking to hire,” Mr Gordine added.

“Within private practice, we have seen a number of situations where a firm has a policy of three days in the office, but the reality is the team is in four days per week. This has been less of an issue for junior lawyers but a major issue at senior associate level.”

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From what Major, Lindsey & Africa managing director Ricardo Paredes has been seeing, the “vast majority” of lawyers across the market enjoy the current hybrid workweek being offered within most firms.

“I think a certain level of trust has now been built between employer and employee for this to continue as a successful working model into the foreseeable future. If you look around the top-tier and mid-tier firms, firms have mandated their lawyers to come into the office three or four days a week, and from what I have observed, most lawyers are happy with such an arrangement,” he told Lawyers Weekly.

“It allows lawyers to enjoy the best of both worlds; they continue to obtain all the learnings and professional development opportunities that come from being present in the office and working alongside their colleagues, while still enjoying that one or two days from home that helps mix things up a bit. As long as the productivity levels when working from home don’t drop (and for the vast majority of lawyers, productivity, in fact, rises when they work from home), I think firms will continue to see the positive effects that flexibility provides both employees and their firm brand.”

This is something that can be seen in smaller firms compared to BigLaw firms, where culture and flexibility can outweigh salaries.

But despite the positives of flexibility, Naiman Clarke managing director Elvira Naiman said that it’s also creating numerous challenges for firms and candidates.

“The biggest problem that was occurring with WFH arrangements is that it was impossible to supervise and mentor junior lawyers. The lawyers who would usually take advantage of the organic learning that occurs when you are sitting within earshot of more senior lawyers, and despite the general logistics of working from home having vastly improved over the course of the pandemic, there is something to be said for being able to physically walk into someone offer and deal with a piece of drafting or a client issue,” she said.

“In some instances, we are having lawyers (even very junior ones) wanting five days WFH. Many firms have adopted a hybrid model of three days at the office [and] two from home. In rare instances, candidates are getting more WFH days than that, but these are largely senior lawyers without mentorship responsibility.”

Multiple partners have expressed concerns regarding missed mentoring and learning opportunities in the face of flexible working — and in May this year, UK firm Stephenson Harwood told its staff they could work from home permanently — provided they take a 20 per cent pay cut. Whilst this is a far cry from many BigLaw firms in Australia, certain categories of employees — such as those with a disability or parental or carer responsibilities — actually have a right under the Fair Work Act to make a request for flexible working arrangements.

Work-from-home policies are also something 90 per cent of candidates are now looking for post-pandemic, added Mr Paredes.

“Nine out of 10 lawyers I speak to ask me about the WFH policies of other firms (or specific practice groups) in the market. It has become a very important aspect of a job search for candidates as it is seen as directly tied to the firm’s or team’s culture. Since WFH policies emerged during COVID, I am yet to meet with a lawyer wanting to be back in the office five days a week without the option of working from home. I think that says something about the market in this day and age and what employees seek from their employers,” he said.

“All things equal, the more flexibility a firm or specific practice group offers, the more attractive the opportunity generally is for candidates. People naturally seek to have options in their life and workplace. If the option to WFH on any set or given days is offered, people will take that option, and more so than not, appreciate the trust from their employer, in turn being a productive and engaged member of the firm.”

However, in terms of WFH versus flexibility policies, there can be numerous differences, with each policy having slightly different elements.

“Flexibility is somewhat a different concept to working from home. There isn’t necessarily ‘flexibility’ when working from home versus working at the office. Flexibility as a concept means that where there are priorities (like family) which at times need to take precedence over work that an employer will be flexible with their demands on that person,” Ms Naiman explained.

“Some firms have always been good with the concept of ‘if the work is being done and the clients are happy — I don’t care when he/she does it’. Other firms find the concept of a parent needing to collect a sick child from daycare or taking an elderly parent to a doctor’s appointment as a real intrusion on the productivity of said lawyer. Most candidates we come across would absolutely like their employer to be ‘flexible’; they almost want the idea of flexibility to be an implied feature of their work lives.”

And moving forward, firms still mandating full time in the office during certain hours will “generally struggle to attract and retain staff”, according to Mr Gordine.

“[Flexibility is] extremely important and likely the number one priority for employees until it becomes the norm without question, therefore it also needs to be the no one priority for employers,” he said.

“There will always be workaholics and career-oriented people who care about work/life balance but are willing to make trade-offs for the sake of their jobs. If the work is meaningful, the compensation adequate, [and] there is career development and advancement, then employers will be able to source and retain talent. Market forces are counting against such firms at the moment, but market conditions are rapidly changing, and job security is raising up the ranks of priorities.”

This sentiment was echoed by Mr Paredes, who said that firms that don’t embrace flexibility and the WFH movement would become “second and third-tier choices” and be “unable to compete for the best talent in the market”.

“I think that firms [that] continue to offer flexibility will continue to build strong brands that lawyers and other employees will be attracted to. They will position themselves as being in tune with what employees want in this day and age and will be able to retain existing employees and stay competitive when hiring talent. I think this is important for firms to understand and to prioritise as a strategy moving forward, regardless of any potential economic headwinds that may come our way. As for candidates, it will become (if it hasn’t already) an expectation of theirs to be offered flexibility. Plain and simple,” he emphasised.

“Firms [that] don’t embrace flexibility will still run the risk of being seen by the markets as being out of touch. COVID changed things, and at least for the foreseeable future, expecting employees to return to a five-day, in-office workweek is not realistic given the candidate market and a strong desire for continued flexibility.”