COVID-19
A rollercoaster ride
Nobody escaped the long shadow cast by the pandemic. Muireann Bolger heard from several lawyers about their personal ups and downs during these extraordinary times.
“Psychologically, the pandemic has been a complete rollercoaster, and we are all exhausted. Everyone has had their life disrupted in some way,” says Vera Suarez, partner at Haynes and Boone in Dallas, Texas, as she reflects on the upheaval triggered by COVID-19.
The worldwide health crisis forced the business world, including the IP sector, to swiftly adapt to new ways of working as staff grappled with unprecedented challenges.
According to lawyers, this quickfire revolution in their professional lives delivered both benefits and drawbacks, while leaving a question mark over the long-term impact on diversity and inclusion (D&I) initiatives.
A dark legacy
According to research, the pandemic could have ominous consequences.
The findings of the sixth annual “Women in the Workplace” report, published by McKinsey and LeanIn.org in September 2021, revealed that more than one in four women in corporate America are considering downgrading their careers or leaving the workforce as they struggle to balance childcare and work commitments during the ongoing pandemic.
This trend is also blighting the legal sector, according to a study by the American Bar Association, “Practicing Law in the Pandemic and Moving Forward: Results and Best Practices from a Nationwide Survey of the Legal Profession”, published in April 2021.
The survey showed that among the female attorneys surveyed, more than half with children aged five or younger and 41% with children aged six to 13 are contemplating a change in their working hours.
These findings come as a little surprise to Suarez. “There is no doubt that primary caretakers—who are most often working mothers—were in the very demanding situation of finding time to work while also trying to provide childcare and/or managing home-schooling,” she says.
“It has been very difficult, especially for those of us with partners who are essential or frontline workers whose work needed to be prioritised. I believe how firms reacted to this widespread issue may become a differentiator when it comes to recruitment in the future.
Female attorneys with children aged five or younger who are considering a change to their working hours
Source: American Bar Association, April 2021
“Some firms have supported attorneys who were or are temporarily struggling, and others have not,” she cautions.
Julia-Anne Matheson, partner at Potomac Law in Washington, DC, believes that COVID-19 has exacerbated an enduring problem.
“As women, we still face the double bind that the pandemic has re-exposed. With very few exceptions, we bear the primary responsibility for children and the home, and that disproportionate burden frustrates career advancement,” Matheson warns.
Longer working days
Lawyers say that working from home during the pandemic lengthened the working day, a consensus supported by the findings of WIPR’s diversity survey.
“People may have saved time by not commuting but many, like myself, have ended up working more,” reflects Jean Lee, president of the Washington, DC-based Minority Corporate Counsel Association, who also believes that COVID-19 has exerted an extremely adverse effect on women.
“I don’t want to minimise the role of working fathers, but inevitably—and certainly in the US—the pandemic’s greatest impact has been on working mothers. A lot of women have left the law to take care of children and sick family members, including parents and in-laws.”
This issue particularly affected women of colour, she argues, who are more likely to be living in a multi-generational family home.
Anita Shaw, IP law counsel at IBM in the UK, agrees that the past year’s turmoil has dealt a hard blow to female lawyers from diverse backgrounds.
“When it comes to ethnic minorities, their tendency to live with and care for extended family is a cultural aspect that means the pandemic has disproportionately affected them,” she notes.
”It has been very difficult, especially for those of us with partners who are essential or frontline workers whose work needed to be prioritised.”
Vera Suarez, Haynes and Boone
The upsides
Conversely, the pandemic has shown law what advances in technology can achieve, paving the way for the adoption of more flexible working practices as the threat of the pandemic subsides.
Tiki Dare, president of the International Trademark Association (INTA) and general counsel at Oracle in San Francisco, predicts that hybrid work structures will be here to stay, potentially leading to a better work-life balance and improved diversity within the legal workforce.
“For women, flexibility, including working remotely, is the most important factor to achieving satisfactory work-life integration, according to INTA’s ‘The Women’s LeadershIP Initiative Report and Best Practices Toolkit’,” she explains. The February 2021 report found that work-life integration policies may help bridge the underrepresentation of women in senior leadership in the IP field.
Others argue that virtual working brought significant benefits for both women and men, especially when it came to attending online events that would have otherwise required expensive and time-consuming travel.
“Socialising through platforms replaced real networking but, in a way, made the contact more personal as we were able to see where people work, their home environment, etc,” reflects Iris Quadrio, partner at Marval O’Farrell Mairal in Argentina.
“It also made it easier for women returning from maternity leave to resume work,” she adds.
Working from home opened a window into the lives of co-workers, echoes Hayley Talbert, partner at Seed IP in Seattle, Washington.
“We now observe and interact with our colleagues in ways that involve all members of their family: children, spouses, parents, and pets. The pandemic has made it easier to be empathetic to the situations other attorneys are experiencing.”
According to Talbert, practitioners and firms encountered difficulties when there was a lack of communication and unrealistic expectations about what can be achieved.
Firms in which leaders and managers took a more proactive approach in helping teams understand what is expected under such pressurised circumstances ultimately met with success, she adds.
“The pandemic has offered us an opportunity to rethink our ‘office culture’,” points out IBM’s Shaw.
“The realities of working remotely meant that my kids have wandered into the office mid-meeting—this was hard to cope with at the outset, but as time has gone on, I’ve become more comfortable about checking in on colleagues to discuss life outside work.
“If anything, the pandemic has brought us all closer in this respect.”
Shaw forecasts that more companies and firms in the legal sector will adopt a hybrid model where “in-person working will be for specific collaboration and innovation requirements, and complemented by remote working”.
”Law firms need to change to accommodate different people with different visions of their lives and ways of working.”
Jackie Mulryne, Arnold & Porter
Women ‘need to be vocal’
Female lawyers argue that women must fight their corner and insist on what expectations can be met during this crisis—and what changes need to come in its aftermath.
“During the pandemic, I’ve been teleworking with my toddler daughter and son, so my efforts to do anything outside the home have been negligible,” says Molly Torsen Stech, attorney advisor, copyright law and policy at the US Patent and Trademark Office in Washington, DC.
“This experience has re-emphasised the importance of being a role model for my children, and the need to be clear about what can be feasibly achieved during a crisis,” she adds.
Jackie Mulryne, partner at Arnold & Porter in London, and lead of the London office’s women’s group, believes that the crisis will likely force firms to re-evaluate their policies and procedures.
“The pandemic in some ways has helped to normalise working flexibly and to acknowledge childcare and other responsibilities,” she explains.
Looking to the future, Mulryne insists that: “law firms need to change to accommodate different people with different visions of their lives and ways of working. We also need more women and other individuals from diverse groups at the top to be vocal about the need for change.”
As an IP attorney and a single mother with a small child and a teenager who has special needs, Julie Katz, founding partner at Katz Group in Chicago, has particularly felt the pressure. But like her peers, she found ways of adjusting.
“To their credit, my children have learned to adapt to my work needs and I have learned to adapt to theirs. We practised quiet time when I needed to be on a video platform with a client or judge. And when I had a moment, I checked on them so they didn’t feel isolated or separated from me.”
Like Shaw, Katz predicts the legal sector will adopt a hybrid model in the future. “I expect that more law firms will reopen their offices. Lawyers will be eager to get out of their houses and once again engage with co-workers face to face—albeit perhaps, in a socially distanced manner,” she says.
“On the flip side, the courts have discovered that status hearings and other types of litigation updates don’t need to be in-person and can actually be more efficient when done remotely.”
For Beth Ferrill, partner at Finnegan, Henderson, Farabow, Garrett & Dunner in Washington DC, remote working has been a positive experience. “I am a single mother of nine-year-old twins who have been attending school virtually. With the reduction in travel and commuting time, I have more time to handle increased childcare and virtual schooling responsibilities,” she says.
“This past year was certainly difficult, but one positive outcome is that I have been able to take advantage of additional work opportunities,” Ferrill says.
“Because I have more flexibility in my schedule, I have been able to take on depositions, client meetings, speaking opportunities at conferences, and court arguments.”
”This past year was certainly difficult, but one positive outcome is that I have been able to take advantage of additional work opportunities.”
Beth Ferrill, Finnegan
No going back
Before COVID-19, she reflects, these tasks would have been challenging to schedule while balancing childcare, travel time, and commuting. “I have always worked long hours, but now it feels that my working hours are more effective and efficient.”
Ferrill is hopeful that as restrictions are gradually lifted, the legal sector will retain the “good” remote practices to boost efficient working, “while eventually returning to those activities that truly need to be done in person or at a particular location”.
IP is, Melissa LaBauve, partner at Fleckman & McGlynn in Austin Texas notes, a practice area well suited for remote work, but she cautions that firms must ensure that staff can strike a good work-life balance and that D&I goals are sustained.
“The IP office of the future will likely be more decentralised with a diminished need for expensive office space and a significant increase in an investment in technology,” she predicts.
Lawyers tell WIPR that a continued acceptance of remote work in a post-COVID-19 world may present a wealth of opportunities for those in need of a greater work-life balance, but only if firms take measures to avoid employee burn-out or a sense of disconnection.
LaBauve warns: “Remote work as a long-term solution is viable only if employers commit to fostering a sense of belonging and connectivity, ensure that remote work is meaningful, and provide opportunities for advancement.”
Arnold & Porter’s Mulryne envisions that the pandemic could potentially deliver a fundamental and irrevocable shift in our working lives.
“I can’t see us going back to the old way of working— being in the office late every day—and I hope this is the start of a new permanent shift in the way we work, and that it will help support women, particularly as more men see the benefits of working flexibly too,” she concludes.
Long-term effects on D&I
When it comes to assessing the long-term effects of the pandemic on D&I, it seems that the jury is still out. There are some concerns that the economic impacts could have an adverse long-term outcome for D&I initiatives.
Speaking to WIPR at the launch of INTA’s Women in LeadershIP report in February 2021, past INTA president and general counsel at NBC Properties, Ayala Deutsch, warned: “One of the consequences of COVID-19 is economic, and D&I budgets are often the first to go when times are economically hard.”
INTA’s Tiki Dare, who took over from Deutsch in January 2021, believes that the legal sector needs vigilantly to ensure that D&I progress does not fall by the wayside.
“It remains to be seen how mental health and diversity initiatives will fare among law firms in a post-COVID-19 environment. The economic crisis may have temporarily distracted firms from such long-term initiatives as they struggle for their survival,” she cautions.
A change in attitudes to D&I within law firms would be a major mistake, Dare adds. “Clients increasingly look to law firms with diverse and inclusive teams and diversity initiatives. Consumers also look to brands to do the right thing.”
On the other hand, lawyers tell WIPR that a new partially remote, virtual culture could help deliver progress when it comes to D&I.
“The pandemic is a shared experience and also very publicly acknowledged, which is helping to reduce stigma around mental health,” Suarez believes.
“Most of us have never before experienced a pandemic, and there is a collective acceptance that it is likely to affect our wellbeing.”
She predicts that as virtual communication has been normalised, support networks for diverse employees will become less office-dominated.
“I hope this will result in stronger support systems for attorneys of all backgrounds. Making the IP office more equal post-COVID-19 requires thoughtful recruiting, training and education of all attorneys,” she concludes.
Images, from top: Shutterstock / nasidastudio, bogdanhoda, Mongkolchon Akesin