To Spy or Not To Spy
By now, most of us are veterans at remote work (right)? In her State of the Judiciary address earlier this month, Wisconsin’s Chief Justice Annette Ziegler pointed out that some of the COVID-19 adaptations, including videoconferencing, were here to stay in at least some form.
And if we’re back in the office or never really left, we’ve mastered Zoom and navigating a deposition with dogs barking and the garbage truck backing up in the background. Whether law firms continue to permit (or require) employees to work remotely more often than not remains to be seen; surveys routinely show that people see being able to work from home as a perk, to the point of sacrificing some pay to do so.
To that end, in January, the State Bar Professional Ethics Committee (on which I sit) approved an opinion on working remotely, EF-21-02. I’ll be writing more about this new remote-work normal and ethical implications, but today I’d like to talk about an often overlooked facet—supervision.
Two Supreme Court Rules are implicated here—SCR 20:5.1 (responsibilities of partners, managers, and supervisory lawyers) and SCR 20:5.3 (responsibilities regarding nonlawyer assistance). Senior lawyers generally have a responsibility to supervise those working under them, and to ensure that all lawyers in the firm conform to the Rules and that the conduct of nonlawyer assistants and vendors is compatible with the Rules. Doing so can be challenging when the junior lawyers and assistants under supervision are scattered across the metro area (or perhaps across the world), but the responsibility remains.
The opinion suggests the following:
Developing a structure to adhere to a schedule, facilitate collaboration, communication, and conduct regular meetings by videoconference can help achieve the level of supervision envisioned by the rules. Regular mandatory training, review of the circumstances of a remotely-working lawyer, the assignment of experienced mentors to new lawyers, and the creation of teams are also strategies that can facilitate efficiency in the context of remote work.
Now, how (and whether) this is going to work in practice will vary depending on firm size, practice area, and the individuals involved. Chances are, a senior paralegal will need less direct supervision than a lawyer who was admitted a few months ago. And, there is always a tension between holding check-in meetings (which employees may see as meetings for the sake of meetings, or meeting that should have been emails), and billable work.
Unfortunately, some firms (particularly contract lawyer firms) have taken this to an extreme. As reported by the Washington Post (paywalled, sorry), some firms are utilizing facial recognition software and other forms of video monitoring to ensure that their employees are doing the work that they’re being paid to do. The employees (quite rightfully, in my opinion) slammed this practice as invasive, and also prejudicial against employees of color for whom facial recognition software does not work as well. The software is supposed to be able to catch employees taking pictures of confidential documents or allowing unauthorized people to view their work, but it ends up mistaking braids in Black hair as recording devices or tattling when the employee gets up to use the restroom or listens to music on headphones. The software will kick an employee out for “inattention” and make them log in again. There is a greater concern that mistakenly flagging someone for compromising client information because they listened to a podcast or adjusted their glasses or had natural hair could expose these employees to professional discipline or adverse employment outcomes for behavior that is normal and acceptable (and may not be similarly flagged for white employees).
This is a profession built on trust; lawyers in their oath and in their Rules promise integrity and confidentiality. It may not be a violation of the Rules for a boss to insist on invasive surveillance tactics for their remote workers. However, if a boss knows about racially discriminatory monitoring software and uses it anyway, they may be at least arguably be running afoul of Model Rule 8.4(g) if their jurisdiction has adopted
Nonetheless, I can’t imagine that surveilling your remote employees—through cameras, keyloggers, or otherwise—helps to foster a collegial and productive environment. And given that employers are facing unprecedented turnover, dubbed the Great Resignation by some, spying on your employees when they could go work for someone else who trusts them and judges them on their work may not be the brightest idea.
