NSW Chief Justice’s comments regarding remote work reveals intransigence

Opinion - David Krolikowski

I was disconcerted by new NSW Chief Justice Bell’s comments in his swearing in ceremony on 7 March 2022. He argued the absence of lawyers from chambers and solicitors’ offices would sap firms of vitality and stunt the personal growth and professional development of young lawyers. Although acknowledging some of the benefits of remote work, his statements smacked of an attitude that “the old ways are best ways” and reflected a disappointing reluctance to fully embrace and evolve with the opportunities that hybrid work arrangements provide the legal profession.

While it is impractical and undesirable for all legal work to be conducted remotely relying upon electronic interfaces, the Chief Justice’s statements severely underrated the way in which work-from-home legal practice has provided a chance for a more diverse and healthy profession.

Lawyers have had different experiences through the social distancing phases of COVID-19. For some, the lack of regular in-person social contact was challenging. However, for many, it was a welcome relief each day to be away from the ongoing noise and interruptions, regular needless and unnecessarily long meetings, the obligations to engage in small talk with colleagues and to be able avoid the crush and frustration of the daily commute.

Pertinently, for many, the focus required to carefully consider complex issues, digest detailed information, or ruminate upon strategy and options, is not aided by the commotion and clamour of the office. Deep thinking is often a critical part of the work lawyers (and judges) undertake. Accordingly, there is much to be said for time where we can temporarily distance ourselves from others to best carry out such labour. The fact that many modern offices now have quiet areas for work and reflection acknowledges this point. However, the reality is that such areas are limited and, in some firms, are annexed by more senior or dominating individuals.

That is not to say that there is no role for the office. An office can constitute a hub for social interaction, idea-sharing, debate and team-building. Further, being immersed in an active workplace presents passive learning opportunities. However, it is not necessary, and is counter-productive, to be in a busy, hectic environment on a permanent basis. While pandemic-induced isolation has been raised as a mental health risk, for many that must be balanced against the stress of commuting and being in a raucous pressure-filled environment, in addition to increased exposure to the COVID-19 and other communicable diseases.

The flexibility offered by remote working has created opportunities for lawyers who take on the primary care-giving responsibilities in their families – generally females. I’m in contact with many mothers to whom the normalisation of hybrid and home working arrangements has been a massive boon. Being in the office from 9 to 5 or 8 to 6 (or more) adversely impacts the ability to support and connect with children during drop off and pick up, care for elderly parents, and even attend health appointments. While our profession is becoming more accommodating in this regard, COVID-19 illustrated that basing oneself at home facilitates greater involvement with our families’ every day experiences, and that it is possible to effectively and efficiently fit work in around the demands of life. Personally, this was poignantly celebrated when my young daughter announced that one of the best things that had ever happened in her life was me ceasing to depart for work early in the morning and return late in the evening. Likewise, eradicating a daily commute, offers more time for self-improvement through meditation, exercise and other forms of self-care.

Of course, there are challenges with working remotely. Some people’s living arrangements are simply not conducive to acting as a working environment. Interruptions still occur. And, as the Chief Justice notes, it can be challenging to achieve a work-life balance “when work takes over the living room”. However, such encroachment was occurring well prior to the advent of remote working. No doubt, many older lawyers remember taking home briefs to review, cases and documents to read, and draft advices to craft or settle, well before mobile phones, laptops and cloud computing became common. Some people prefer to work in the office – that’s fine. But a rigid decree that all staff be present in the office on specified days / hours or for a minimum percentage each week goes too far.

A significant challenge for the legal profession is to find new ways to educate, train and support graduates and junior solicitors without being physically proximate. We must remain conscious of involving them in discussions and communications, and spend time explaining rationales, strategies, drafting and other legal essentials. It is not acceptable for a lawyer’s physical absence to be used as a justification for failing to provide appropriate guidance and support. Participation can be achieved through copying them into email correspondence, including them in videoconferences, and holding regular catch ups and debriefs. And new ways of connecting and communicating via technology and apps will undoubtedly evolve. Virtual reality may emerge as a useful tool.

We will all have to adapt to new devices. Recently, I listened to a podcast which described the importance of being sufficiently distant from the camera during a videoconference to enable your body language to support and reinforce your communication. Applying similar techniques will become a critical part of professional skills development. While telephone or on-screen hearings and meetings may arguably inhibit some aspects of communication, others can be elevated. Studies have shown that voice-only communication can enhance empathetic accuracy, as noted by organisational psychologist, Adam Grant. In other words, listening without the distraction of seeing can lead to superior insight into the message.

As has always been the case, some legal leaders will better than others at harnessing the tools at their disposal to provide effective training. Some will prefer to provide training in person, and some will prefer to receive it that way. But it is critical that as the world changes, we enthusiastically welcome new vocational systems that provide real benefits and flexibility, rather than insist upon reverting to the comfort of familiar methods.

There is a vitality and buzz created by busy offices and chambers and the chance encounters they create. And traditionally, the culture of a firm or chambers is shaped by the social interactions that occur in the offices. However, the world has changed, and new trends are emerging as a result of revised ways of interacting and working. Accordingly, the legal profession must evolve and spawn new approaches to education and collaboration. Sacrificing the incredible opportunities revealed by enforced social distancing to preserve an unimaginative understanding of training methods and culture maintenance would be a massive waste and a backwards step.

David Krolikowski