Arthur J. Ciampi (NYLJ/Rick Kopstein)
“I’d like to dial it back 5% or 10% and try to have a vacation that’s not just email with a view.” – Elon Musk
As we all mourn the official end of summer, it may seem like an inopportune time to speak about vacations, which for many, in September, seem to be light-years away. But despite what may seem like bad timing—summer gone, a fading memory of long days and warm weather, shorter days and more time in the office ahead—it is submitted that September is a very good time to examine how law firms treat vacations and sabbaticals even if only to rekindle the giddy hope of future time away from work.
In this month’s column, we examine some of the reasons for vacations and sabbaticals and suggest language for partnership agreements to address these important issues.
‘You need a vacation ….’
Studies overwhelmingly conclude that taking a vacation is good for you. The benefits include reduced stress, reduced risk of coronary disease, decreased susceptibility to depression, and better relationships. Liebel, “Vacations or Staycations, You Need Them in Order to Be Truly Productive,” Above The Law, March 8, 2016.
Important to hear for many law partners is that vacations also make you more productive: “The breaks you take from work pay you back manifold when you return because you come back with a fresher mind and newer thinking. Some of your best ideas come when you’re on vacation.” Singhania, Brainy Quotes. An Expedia.com survey concluded that 84 percent reported feeling “rejuvenated and reconnected with family and friends after a vacation, and 80 percent reported having a more positive outlook about their jobs when they take time away.” Shannon, “Work-Life Balance: Promoting a Vacation Friendly Firm,” Law Practice Magazine. Moreover, not taking a vacation can cause a decline in productivity: “When you are busy and exhausted all the time, you never give your brain a chance to turn off. Like a computer that is never shut down, our brains stop working properly, and take too long to load. There is cognitive decline. What results over time is insomnia, stress which can lead to depression, substance abuse, and even worse.” Liebel, supra.
Some encourage that, rather than fully disconnect from the practice of law while away from the office, one take advantage of the ever-present technology to have the best of both worlds. “These days you can take a cruise through the Arctic and still have access to WiFi, allowing you to keep in touch with clients and staff.” Sullivan, “Lawyers, You Don’t Just Deserve A Vacation, You Need One,” Strategist. Others, however, disagree and maintain that, to be beneficial, a vacation requires disconnection with the firm. For example, Jay Henderson, a managing partner of the Chicago office of PricewaterhouseCoopers, has stated: “Try not to call the office to discuss business matters or check voicemail or email. You are either on vacation or you’re at work; you shouldn’t try to be in two places at one time. Trust your colleagues to follow through on your behalf.” Shannon, supra.
In fact, in the world of finance, particularly in banking, vacations are often mandatory for a different reason. The FDIC and the New York State Banking Department recommend that employees in sensitive positions be required to take two consecutive weeks of vacation on an annual basis during which time such employees must be off-site and offline and not permitted to effect any transactions or banking business. Schnurman, “5 Reasons Why You Need to Make Key Employees Take Their Two-Week Vacations,” Forbes; Department of Financial Services, 1996 General Industry Letters, Vacation Policy. This policy is implemented to help detect and or prevent fraud and other illegal schemes. Id.
Some businesses outside of finance, and even some law firms, employ consecutive two-week mandatory vacations. They do so in part because the vacation preparation process encourages communication, fosters transparency, decentralizes tasks, creates shared responsibilities and trust, encourages communication, and prevents the building of “silos” whereby a single lawyer or group is isolated from the other lawyers or groups at the firm. The proponents of mandatory vacations claim that these benefits come from the planning and communication, which are required prior to taking a successful mandatory consecutive two-week vacation during which a lawyer is expected not to communicate with the firm or clients. For example, taking a two-week vacation in which one is “off the grid” forces communication and the training of others and likely results in putting those tasks in writing for future use. Id. A by-product of this process may also be new ideas on how to perform such tasks. Id.
Of course, resistance to mandatory vacations can certainly exist. Many lawyers claim that they cannot take time off because of client demands or the pressure to meet billing guidelines. In addition, they fear that they will be perceived as less motivated or dedicated to the firm and its clients which they are concerned will impact their success at the firm. Shannon, supra. Moreover, the preparation process described above can identify both weaknesses and strengths in the old and new approaches to a particular way of doing things and can also identify if someone is overloaded or saddled with tasks that do not fit their skill set. For this reason, as some lawyers are reluctant to have their way of doing things questioned or scrutinized or subject to change, they resist the two-week mandatory vacation policies. From a firm perspective, however, the end product of a consecutive two-week vacation should be a better decentralization and more widespread understanding of how the firm’s business is being conducted so that clients can be better served. Accordingly, for some firms it may be worth implementing.
A basic clause in a law firm partnership agreement which can be used to implement mandatory vacation is as follows:
Each Partner shall be eligible for four (4) weeks vacation. Nonetheless, all Partners are required to take a consecutive two (2) week vacation each calendar year (the “Mandatory Vacation”). Each Partner shall endeavor, by cooperation and communication among partners, and the making of appropriate plans and arrangements prior to such Mandatory Vacation, to ensure that during such Mandatory Vacation they will not be required to be in communication with the Firm, its Partners, Employees, or clients. Moreover, a Partner on Mandatory Vacation will use their best efforts not to be in such communication.
Law firm sabbaticals are even more rarely implemented than mandatory vacations. Sabbatical provisions are absent from many partnership agreements, and many partners, even in those partnerships that have such provisions in their agreements, are reluctant to take advantage of them. Among the difficulties expressed are that law firm partners are very motivated about their jobs and find it hard to step away from the firm which often provides both professional and social structure; are concerned about losing contact with clients; and are afraid that taking a sabbatical will create an impression that the partner cannot handle stress and will be perceived as needing time off. Rigdon, “Time Out, Time Off: Lawyers on Sabbatical,” D.C Bar July 2005.
Those who favor sabbaticals emphasize that sabbaticals can “attract new recruits and refresh old ones.” Id. A sabbatical is also seen as a means of allowing partners to recharge from the stress of law practice. In addition, like mandatory vacation, because a sabbatical requires careful planning to be successful, its implementation helps to institutionalize client relationships. Id. Proponents of sabbaticals also tout the flexibility of such programs, which permit partners to, among other things, travel, teach, pursue artistic endeavors, or spend time with their families. Id.
A basic provision in a law firm partnership agreement concerning sabbaticals is as follows:
Partners who have continuously served as Partners of the Firm for more than five (5) years, subject to the majority approval of the Management Committee, shall be eligible for a sabbatical from the Firm for up to 6 (six) weeks. The Partners shall cooperate and communicate to ensure that during such sabbatical the Partner on sabbatical will not be required to be in communication with the Firm, its partners, employees, or clients and the Partner on sabbatical shall use their best efforts not to be in such contact. The Management Committee shall set the terms and compensation, if any, for such partners on sabbatical, during the sabbatical period.
The summer may be over, but considering mandatory vacation and sabbatical programs remains a timely topic. Studies indicate that both programs can be used to help alleviate the stress of law practice on partners and to de-centralize and integrate a partner’s practice in the firm. Both programs require careful planning to be successful as well as notice to clients and firm personnel.