The Legal intelligencer - Lawyers Need Proper HR Training to Be Better Supervisors and to Reduce Risk

While there have been rising movements in many states recently (and also significant Supreme Court decisions) aiming at eliminating DEI initiatives, that does not mean we will see a drop in discriminatio claims. Recent headlines popping up with discrimination claims made by attorneys at various Big Law firms, including most recently against Troutman Pepper, mirror this trend.  While it remains to be seen whether the jury got it right when it recently found that Davis Polk did not retaliate against its former Black associate, most firms should use these cases as opportunities  to reassess their internal coaching, mentoring, and supervising policies for attorneys and staff.   

In the wake of these discrimination claims, an article entitled, Discrimination Lawsuits Put Partners’ Feedback for Associates Under the Microscope, highlights the public reactions to many of these recent lawsuits and shines light on a worrisome trend among attorneys. Regardless of how successful they are in their careers, many attorneys continuously subordinate performance reviews and ongoing feedback, putting their firms in jeopardy. Attorneys can eliminate or diminish the risk of discrimination claims for their law firms if the following guidelines are put in place.  While these directives are focused on law firms, they can be applied to any employer/employee setting.  

Have Well Written Employment Practice Policies  

While this first pointer may seem like it should go without saying, you would be surprised by the number of law firms and business clients I see that lack a strong foundation when it comes to written employment practices.  In my experience, employers who do not properly document through employee handbooks and other written policies that govern employment are the ones who tend to get into the most trouble and have a greater risk of discrimination claims.  Before I go into some of the areas that should be included in an employer’s written policies and procedures, I want to note what I tell every single one of my law firm and other business clients:  a written policy is only useful if you enforce it as written.  Meaning if you have a written policy that says one thing but in practice, your employees are held to different standards or the policies are never actually enforced, you might as well not have the policy at all.   

When drafting employment policies, you want to be realistic about whether or not your team will abide by the policy as written.  In law firms, you have a laundry list of differing classes of employees and some are harder to manage than others.  It is a lot simpler to get your support team (secretaries, paralegals, administrators) to follow the written policies than it is to wrangle that one (or two or three…) equity partner who doesn’t want to be told how to do anything.  But to stay out of harm’s way, everyone must follow the rules the way they are written.   

The main sticking point with any written policy is that it must be equally enforced.  You get into major trouble when you allow one person to bend the rules and not be disciplined while disciplining others on their first infraction.  An unequal application of the rules is a common situation in which claims of discrimination arise and stick.  For a law firm, a few of the policies you would want to have written out include disciplinary policies, reporting procedures, performance metrics for promotion, and any other policy that is weighed during employee review periods.   

For discipline policies, progressive discipline is usually the best approach although there will be instances (like theft, malpractice, etc.) that call for immediate dismissal.  It is important that the policy is clear and the steps outlined are equally applied to all employees.  However, it is perfectly acceptable to have a different type of progressive discipline for various classes of employees (for instance, one policy for the support team and associates and a different policy for equity members).   

When it comes to reporting procedures, you want to have a policy in place that allows every class of employee to report inappropriate conduct safely and confidentially.  Firms need to consider the reporting structure especially if the offender happens to be a high-level or key employee. For example, you should not list the managing member as the sole person designated to receive the complaints, with no one else listed to receive reports, if the offender happens to be the managing member.       

As for creating policies around performance metrics or detailing the steps of how an associate can progress to partner status, make sure the policy is not ambiguous or open to interpretation.  While all policies should be clearly defined, it is particularly important in this area as it often leads to claims of discrimination when those enforcing the policies are given unfettered discretion to pick and choose who gets top-ranking performance or promotion opportunities.    

Enforce the Rules  

The written policy is the first step to ensuring equal treatment for all employees but the next step (actually enforcing the policies equally) is where law firms and other employers frequently get into trouble. As we all know, it is less challenging to have support team members (like supervising paralegals, office administrators, or managers) follow and enforce the rules than it is when attorneys are also acting as supervisors (whether over other staff or junior attorneys).   

Therefore, I recommend that clients bring me or some other outside professional into their firm to conduct leadership training for their employees with supervisory responsibilities.  This training provides staff with the tools to properly and equally enforce the firm’s policies, emphasizing the risk a firm faces when supervisors enforce rules some of the time or only to certain team members.   

If you realize that how a policy is enforced does not match the written version in the handbook, simply update the written policy to match how it is in practice at the next opportunity.  The biggest risk a firm faces is having a policy that is not properly enforced by everyone in charge – you cannot have supervisors (including supervisory attorneys) who unilaterally decide that they only want to enforce certain policies for some of their team.   

Document Performance Properly 

Documenting performance is a problem for many employers, not just law firms.  However, with my law firm clients, I see this issue reoccurring more often.  Most people think documenting performance only relates to documenting poor performance – but that is not the case.  All performance, whether good or bad, should be documented on an ongoing – and not just annual – basis.  Law firms should not leave performance reviews to a once-a-year endeavor; the most effective performance review happens year-round whether that be bi-monthly or quarterly. The annual performance review is impractical and costly – if you know an employee is performing poorly and not meeting expectations why wait until the end of the year to document it or change it? 

When assessing an employee’s performance, it does not have to be done in writing the first (or even the second) time.  Performance feedback can and should be delivered verbally where both the person delivering the feedback and the person receiving the feedback have an opportunity to discuss the performance expectations going forward.  However, the misstep most firms make next is not having the discussion properly documented.  It is imperative that following the meeting, the person receiving the feedback is tasked with sending a confirmation email to the person who delivered the feedback.  The follow-up email should include the performance concerns that were discussed, the expectations to correct the lackluster performance, and any deadlines or other details that were discussed.   

By having the person who received the feedback take this step, you are ensuring that they are on the same page as their supervisor and that they understand their obligations and expectations going forward.  When time or other circumstances do not allow for an in-person meeting, communicating performance feedback over email is acceptable.  Providing such virtual feedback should be done in a clear, concise, and thought-out manner.  While we all get frustrated when mistakes are made (especially reoccurring mistakes), if the way we communicate this frustration is done in a tone that lacks respect, the message being communicated can get lost due to poor delivery.   

Supervising attorneys must remember to assess all their charges using equal metrics that are more objective than subjective.  Providing specific feedback versus general feedback is always more beneficial both from a documenting perspective and also from the perspective of the person who is receiving the feedback.  For example, telling an associate that they took too long to draft a motion is not as helpful as if the feedback given was that a motion of this type should not take longer than six hours to draft.  In this example, I would also ask the associate why they thought the drafting process took them so long so that practice pointers could be given to help assist them on their next assignment.        

Documenting good and bad performance is more of an art form than a science.  But assessing everyone equally using the same metrics and standards is the best way to stay out of hot water.  Many discrimination claims that arise in a law firm setting are the result of unequal treatment through improper performance reviews and feedback and unfair treatment through misapplication of policies. 

Lawyers excel in many areas but are not always the best business leaders or human resource professionals.  There are resources available for law firms to get the proper guidance on policies, performance reviews, and other HR-focused areas from lawyers like me who specialize in employment law or even from trade associations like the ALA or SHRM.  The best path forward is with support and reinforcement as the risks far outweigh any cost saving you may get by trying to do it all yourself.

Reprinted with permission from the February 06, 2024  issue of The Legal Intelligencer. © 2024 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.