Why Midsize and Large Law Firms Should Consider Using an Ombudsman
Conflict: Familiar, Inevitable, and Challenging to Manage Formally
Most organizations have conflict. In a law firm setting, organizational conflict might involve employment decisions, such as performance reviews, partnership decisions, or claims of mistreatment ranging from annoying behavior to actionable discrimination or harassment. Law firm conflict might also involve ethical issues (conflicts of interest, client trust fund management)
The existence of such conflict is entirely understandable, even predictable- law firms are certainly not unique in having these challenges. But the additional pressures under which law firms operate puts more pressure on firms to manage their conflict well, or suffer the consequences, which include loss of reputation, bar association discipline, and unwanted turnover – all of which translate into lost billables and revenue, and clients looking for new representation.
What is important to address is how conflicts are managed within the firm. We would like to think that issues are dealt with when people come and talk with the managing partner, practice group leader, office manager, HR professional, or other firm resource. But often that does not happen.
Why might law firm staff or attorneys be unwilling to raise conflicts and other issue of concern with the formal channels available to them? There are at least several reasons why not. The first is that people often do not feel “safe” talking with any of these formal resources. They fear retribution of some kind, are concerned about the perceived stigma of raising an issue, or might feel embarrassed. Would a legal secretary or assistant talk with the office manager about her being asked by an attorney to be “creative” with an expense report?
Related to this fear is the fact that these conversations are not confidential. Would a young associate approach the managing partner about her perception that a practice group leader is abusive? Or discriminating against her or someone else?
Another reason attorneys and staff might not raise issues is their belief that those formal resources will not be able to effectively act in support of them- because those resources are closely tied to the firm’s leadership and are therefore not “neutral”. People might also not come forward because they believe that nothing will change, and these resources don’t really want to hear attorneys or staff “vent” or express individual challenges. Does a practice group leader want to hear another partner expressing concerns about inappropriate record keeping or subpar client service? Will the firm’s HR leadership be approached by people who have trouble balancing their work commitments with the demands of young children at home? If people think they would be wasting their time (and the other person’s time) they will not express their concerns or issues.
The High Cost of Conflict
OK, so some things are perceived as problems or conflicts- either for individual attorneys or staff or for groups of people. So what? Not every wrong has a remedy, right? Why should firms care about the conflicts and concerns that they don’t hear about? This is a critical question. The answers include:
1) Loss of talent
How much does it cost a firm to replace a high-performing paralegal, legal assistant, or attorney? Two times her/his annual salary? Remember that these costs include lost productivity, training, benefits, and more.
2) Loss of reputation
What would happen to your firm’s reputation if the local newspaper wrote a story about the firm being unfriendly to certain minorities? Or a bad place to work? Or if abovethelaw.com was actively posting comments from mistreated associates?
3) Loss of clients/business
Clients have more choices than ever before about who gets their business. And they might very well take their business (and their referrals to other potential clients) to other firms as a result of a firm’s behavior toward them, toward another client, or even toward internal staff.
4) Legal action against the firm
How much does litigation cost against the firm? (We know this one, don’t we?) Remember to include in this measurement not just legal fees, but lost productivity of the lawyers and staff involved, lost productivity of everyone else who is talking about the case by the water cooler- as well as the loss of talent, reputation and clients resulting from the legal action.
One Solution: Using an Ombudsman
The term “ombudsman” has different meanings to different people and the role is defined differently by different organizations. (The term is Swedish and translates literally as “office man”). Universities and government agencies often have ombudsmen, as do labor unions. More corporations are now using the role as well, and the ombudsman function is different in the business world: it is not one of advocacy and formal investigation, as might be the case in other settings. According to the International Ombudsman Association, the four principles of an organizational ombudsman are independence, neutrality/impartiality, confidentiality and informality.
An ombudsman is an independent, neutral, and confidential resource to anyone employed by the firm; a resource that complements existing grievance procedures that might exist within a firm. He/she assures an additional level of anonymity and safety in the raising of issues to the firm’s leadership. Generally, the ombudsman reports to the board or the most senior leader in the firm. (In corporations, ombudsmen report to the CEO, Board of Directors, or perhaps an audit committee of the Board.) Since the ombudsman is “outside” of the formal organizational structure, he/she has more freedom to raise concerns or to help others raise these concerns themselves.
A law firm ombudsman can:
- Help firm staff and attorneys clarify challenges they are facing or conflicts they are experiencing with others in the firm or with the firm itself. Issues might include interpersonal conflicts, claims of mistreatment, unfair or inconsistent firm practices, supervision issues, unusual stress, and concerns of unethical or unprofessional behavior. The ombudsman is a counselor.
- Assist staff and attorneys in resolving disputes, whether by facilitating conversations, mediation, “shuttle diplomacy” involving people in a tense relationship, or any other method of conflict resolution that will provide positive results. The ombudsman resolves disputes.
- Report patterns based on themes and aggregate data to leadership so that future liability or conflicts can be minimized if not avoided entirely. The ombudsman can make significant contributions to the firm’s formal processes. For example, an ombudsman can share patterns of issues being raised by employees (such as practice group conflict or inappropriate leadership behavior) so that those that make firm policies will be more fully informed. The ombudsman is an organizational improvement consultant.
The Minority Corporate Counsel Association (MCCA) has recommended that firms use an organizational ombudsman, “so that attorneys who want to discuss their experiences have a well-trained and well-informed person to whom they can turn for guidance”. According to the MCCA,
“Law firms should earmark resources that allow all attorneys to voice their concerns, doubts and ideas in a confidential or even anonymous forum, where they are not fearful of retaliation or retribution from senior management. Firms that are receptive to the issues raised by all attorneys will be able to change their culture, policies or practices. Those that stifle feedback will have reticent and unhappy associates who may depart whenever the first good opportunity knocks.” [MCCA, Creating Pathways to Diversity: A Set of Recommended Practices for Law Firms]
Firms should consider whether they would be willing to take appropriate individual and organization development measures based upon the ombudsman’s work and recommendations. They should also keep in mind that there are many different forms an ombudsman’s role might take, including full-time, part-time, and contract arrangements. Exactly which structure would be most effective for a particular firm, and how to establish the role, are critical and complex issues that may be the subject of a future article. For now, firms are encouraged to begin to consider the benefits of using an ombudsman to proactively manage conflicts, support employees, and protect the firm.
[A version of this article was originally published on the American Bar Association’s Law Practice Management website in February 2010.]