While You Were Out: Ethical Considerations for Making the Most of Your Time Away From The Office

January 27, 2023

Reading time: 5 minutes

By Kate Gould

As a new lawyer about to take my first vacation, I remember assuring the managing partner that I would be available by phone and checking my email. Although he did not discourage my accessibility, he recalled what taking a vacation was like before being tethered to a Blackberry (these were pre-iPhone days). He said something to the effect of, “There was no laptop to take with you or email to check on your phone. We would just return to the office to a little pile of pink messages on our desk.”

Nowadays, our legal assistants don’t even take phone messages. Clients leave voicemails which instantaneously pop up on our phones. There really is no escaping the practice of law unless you make a conscious effort to temporarily “unplug” from your work. With a little planning this can – and should – be done. Of course, there are ethical considerations to taking time away from the office.

Why You Need (and Deserve!) a Break

For attorneys, heavy caseloads, never-ending client demands, and spending time away from family or friends can all lead to burnout. Burnout is quite literally that slow burn which simmers until it eventually affects the quality of your work. While it can manifest in different ways for different people, burnout generally affects the vigor with which you practice law. The energy and enthusiasm you typically exhibit may be replaced with a lack of interest, overall job dissatisfaction, and poor performance. The pandemic
exacerbated these feelings for many lawyers and caused them to examine their work-life balance (or lack
thereof) leading, in part, to the Great Resignation. Perhaps those who chose to leave the profession may have stayed if the legal world was more cognizant of the need for an actual break.

While we cannot shirk our professional responsibilities while away from the office, we can and should periodically step away. Specifically, while we are charged with keeping our clients reasonably informed and to work diligently on their cases, we do have a duty to remain competent in our representation. By taking an extended vacation or even just a couple days off, we can avoid burnout and maintain the level of competence our clients have come to expect.

Model Rules of Professional Conduct

A few Model Rules of Professional Conduct come into play as you prepare to take a vacation or short absence from the office.

First, Rule 1.1 of the Model Rules requires competence. Whether away on vacation or recovering from surgery, lawyers remain accountable to their clients to provide competent representation during any absence. Unfortunately, despite adequate planning, some emergencies cannot be anticipated. So, while “unplugging,” it may be necessary to maintain some level of contact with your office to ensure this duty is fulfilled.

Second, Rule 1.3 of the Model Rules states that “[a] lawyer shall act with reasonable diligence and promptness in representing a client.” Just like the requirement to be competent, a lawyer’s duty to remain diligent in their representation is not somehow suspended during vacation or a short term absence from the office. You cannot simply check out and ignore deadlines during this time. In the litigation world in particular, calls or inquiries from the court should be promptly addressed by you or another attorney in your absence who is familiar with the case.

Finally, under Rule 1.4 of the Model Rules, lawyers are required to keep the lines of communication with their clients open at all times. They must keep their client reasonably informed about the status of their case and comply with reasonable requests for information. Under Rule 1.4, lawyers are further responsible to explain a matter to the extent reasonably necessary to allow the client to make informed decisions about the representation.

Are you sensing a theme? Much to the chagrin of some clients, you aren’t “on call” at all times to answer their burning legal questions. The standard is reasonableness. And while we all strive to promptly respond to our clients and offer them timely legal advice, it doesn’t mean you need to get that underwater phone case for your snorkeling trip. That being said, by providing a timeline for when your clients can expect to hear from you or someone in your office, you can satisfy this reasonableness standard.

By setting boundaries and tempering client expectations for a vacation or temporary absence from the office, you can enjoy your time away while fulfilling your professional responsibilities.

Best Practices When Out of the Office

Although completely unplugging may not be possible, there are some pre-vacation strategies you can implement, so you can return to the office feeling renewed and refreshed.

Notify clients. By letting your clients know you will be away, you will likely avoid an interruption on your trip. Chances are, your client will appreciate the fact you gave them advance notice and respect that boundary. You can always suggest they contact your assistant who can help determine whether something is an emergency or if you can address the matter when you return.

Coordinate with your legal staff and fellow attorneys. Ask that your legal assistant be in the office when you are away. By having someone familiar with your cases in the office, you and your clients will have greater peace of mind that nothing will slip through the cracks while you are gone. You can also ask that your assistant run any questions by an attorney in the office by coordinating with that attorney before you leave.

Calendar some breathing room. Be sure to timely mark out your vacation time on your calendar so nothing is scheduled on your anticipated days out of the office. It is also helpful to set aside a day prior to your trip to go through your file list and make sure you haven’t missed any upcoming deadlines. Also, it may be hard to relax on vacation knowing there is a hearing or client meeting scheduled on the day you return to the office. So upon your return, think about reserving a day to catch up on email and voicemails.

Set your away messages. Record a voicemail message advising of the dates you will be out of the office and who can be contacted for immediate assistance. Likewise, setting an automatic email reply with the same information and instructions is an easy way to set expectations as to when your clients will hear from you upon return from vacation.

Short term coverage. As a solo practitioner, you may have a reciprocal arrangement with a colleague to cover each other’s practices when you are out of town. Be sure to brief them on anything you anticipate might come up and let them know under what circumstances to reach you when you are gone.

As with most things, striking the balance between going “off the grid” and being available depends on the lawyer and their practice. Some lawyers may be completely comfortable allowing their associates to handle their files in their absence. Others may struggle to not answer every email received while sitting on the beach. That being said, it is possible to take time to relax and recharge while adhering to your ethical obligations “while you [are] out.”

Kate is a Risk Management Consultant at Attorney Protective. When she isn’t offering AttPro insureds
risk management guidance, you might find her planning her next vacation out West.

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Information provided by AttPro Ally is not intended as legal advice. This publication provides best practices for use in connection with general circumstances and ordinarily does not address specific situations. Specific situations should be discussed with legal counsel licensed in the appropriate jurisdiction. By publishing practice and risk prevention tips, Attorney Protective neither implies nor provides any guarantee that claims can be prevented by the use of the suggested practices. Though the contents of AttPro Ally have been carefully researched, Attorney Protective makes no warranty as to its accuracy, applicability, or timeliness. Anyone wishing to reproduce any part of the AttPro Ally content must request permission from Attorney Protective by calling 877-728-8776 or sending an email to [email protected].

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