Insight

Remote Controls

How law firms, lawyers and taxing authorities must adapt to remote work

Law Firms Adapt to Remote Work
CO

Cynthia Morgan Ohlenforst

June 7, 2022 08:40 AM

ONCE UPON A TIME—when most people talked about “going to work,” they meant just that. They physically went to work, to a place that wasn’t home or a relative’s or friend’s house or (even better) a lake house or vacation home.

That’s what most lawyers did, including working moms. Law firms and clients expected it, and everything from our work schedules to the taxes we pay have long been based on the premise that most attorneys work in offices outside their homes.

As long ago as 1980, when I graduated from law school, I was convinced that lawyers could work productively without being in the office all day, every day. So, at a time when few women were practicing in traditional law firms, I found a fabulous firm that agreed I could be out of the office on Tuesday and Thursday afternoons. I generally spent that time with my children and got my legal work done at other times. It worked well, and except when I was in trial or closing a deal, I stayed with that schedule from the time I began practice until the year I made partner—without any delay on my partnership path.

The pandemic has confirmed what many of us have known for years: With the right people and the right work environment, much of what we lawyers do can be done from somewhere other than our firm’s office. An April 2021 American Bar Association national survey of more than 4,200 lawyers, “Practicing Law in the Pandemic and Moving Forward,” found that 35% of respondents are thinking significantly more often about working part-time. For women with kids aged five and under, the figure was 53%.

An article in the March 2022 McKinsey Quarterly, “Gone for Now, or Gone for Good? How to Play the New Talent Game and Win Back Workers,” noted that among workers who quit their jobs and then returned to traditional employment, the most frequently cited reason for accepting a job was workplace flexibility. That factor, cited by about 40% of respondents, ranked higher than all other reasons listed, including total compensation and meaningful work.

Law firms have valid interests in this conversation too—not only concerning productivity and quality of work, but also because today’s workforce is infinitely more mobile than its predecessors. Law firms, as businesses, must also pay close attention to the impact frequent travel and remote work could make on their multijurisdictional tax-compliance footprint.

Against this backdrop of what’s happening in the workplace and in the world more broadly, flexible arrangements are critically important to both women and men, especially parents, and flexibility is fast becoming an essential tool for lawyer retention. How do we get there?

Flexibility first. Firms must be agile and flexible. That’s the first point most people make, and it’s a valid one. Many fail to note, though, that lawyers too must be flexible. A must-be-present-to-win mentality won’t suffice in today’s environment, but client work sometimes requires actual physical presence—not only at the courthouse or the negotiating table but also because the benefits of being in the office are significant: in-person brainstorming, building a shared experience and camaraderie, and more effectively providing and receiving training and mentoring.

Policies regarding flexibility should, well, flex. Firms and lawyers must flex not only in their expectations of themselves and each other, but also as they experiment to find what works and what doesn’t. Neither schedules nor policies should be written in stone.

Fixing those troublesome taxes. During the early months of the pandemic, many state and local taxing authorities hit the pause button on collecting taxes from workers who temporarily moved into their jurisdiction and, in some cases, on the companies for which they worked if the businesses didn’t otherwise have tax nexus there. As we all know, though, the pandemic dragged on, and remote working became the norm for many companies, including law firms.

Moreover, some taxing authorities found themselves facing the same financial uncertainties and shortfalls as many taxpayers. In my tax practice, I see an increasing number of jurisdictions that have not only terminated the grace period for temporary tax-free presence but also sought aggressively to collect taxes based on workers’ temporary presence. Addressing these tax issues is a multipronged task:

• Businesses, including law firms, and their workers must be aware of the tax repercussions of remote work in each jurisdiction: What amount of time or work triggers tax exposure? Which taxes? Are the tax repercussions significant enough to avoid hiring or allowing workers in that jurisdiction?

• How can businesses, again including law firms, influence legislators and other policymakers to address tax systems that may subject income to tax in multiple states (e.g., when both the home-office state and the remote-work state seek to tax a worker’s pay)? Which types of state-tax apportionment rules provide adequate means of fairly apportioning such income among the jurisdictions? Over time, both litigation and lobbying efforts will better define the path forward.

We, both firms and individuals, must design workplaces and demand tax structures that encourage and support some degree of remote work for a large segment of practicing lawyers. Doing so can contribute to lawyers’ quality of life and practice. Failing to do so can make it increasingly difficult for law firms to recruit and maintain a diverse workforce.

Cynthia Ohlenforst, a K&L Gates tax partner, chairs the firm’s global Women in the Profession Committee, and has a successful, national practice that encompasses tax planning, litigation and legislative work. She graduated first in her law school class from the SMU Dedman School of Law in 1980 (after having a baby during her 1L year) and, in 2018, the State Bar of Texas selected her as the Outstanding Texas Tax Lawyer. Ohlenforst has been recognized by Best Lawyers® since 2005 in Tax Law, Chambers and Texas Super Lawyers; named among the Top 50 Women in Texas by Super Lawyers; and elected to the American College of Tax Counsel. She has testified before legislative committees in multiple states, litigated in federal and state tax courts, worked on deals with multi-national corporations and actively participated in State Bar of Texas activities, including as Chair of the Bar’s Tax Section. She’s delighted that all three of her children are working moms who, like her, have found professional careers they love.

Related Articles

Changes and Challenges


by Megan Norris

As the pandemic ebbs and many people return to the office, midsize law firms in particular must navigate a host of unprecedented questions about costs, culture and client expectations.

Changes, Challenges and Cost of the Pandemic

Announcing the 7th Annual Women in the Law Publication


by Best Lawyers

The 7th Annual Women in the Law publication is a celebration of all the female legal talent across the country, honoring every woman listed in The Best Lawyers in America and Best Lawyers: Ones to Watch in America.

Honoring Female Lawyers in the United States

New Sheriff in Town on ESG


by Patricia Brown Holmes

Various regulatory agencies within the Biden Administration are stepping up enforcement of corporate malfeasance in the ever-trendy ESG space.

ESG Enforcement in the Corporate Environment

Follow the Money


by Rachel F. Sifuentes

Women are the future of fintech—but in the here and now, they’re still being underserved in an industry otherwise marked by explosive growth. Here’s why that must change.

Women and the Future of Fintech

Privacy Practice


by Casey Waughn

Data protection is all the rage among tech companies and state, national (and even transnational) governments alike. Is it a passing fad or here to stay? And how should businesses and groups of all sizes handle compliance with a blizzard of new laws?

Data Protection Prompt New Privacy Laws

The Upcycle Conundrum


by Karen Kreider Gaunt

Laudable or litigious? What you need to know about potential copyright and trademark infringement when repurposing products.

Repurposed Products and Copyright Infringemen

The Compensation Situation


by Liz S. Washko

Pay discrimination has been outlawed for decades. Yet the issue has taken on new salience in recent years. Here’s what to know about compensation equity—and where the legal risk lies for companies.

Pay Discrimination and Equity in Legal Indust

Carrying the Torch While Raising the Bar


by Sharen L. Nocella

Catherine Pyune McEldowney makes waves as one of the few Asian-American women at the pinnacle of a U.S. law firm.

Asian-American Representation in Law

Forging Bonds, Building Business


by Crystal L. Howard and Lizl Leonardo

As disorienting and occasionally frightening as the pandemic has been, it has also forced lawyers to find innovative new ways to stay connected and do business.

Pandemic Sparks Innovative Ways of Conducting

We Are Women, We Are Fearless


by Deborah S. Chang and Justin Smulison

Athea Trial Lawyers is a female owned and operated law firm specializing in civil litigation, catastrophic energy, wrongful death and product liability.

Athea Trial Law Female Leadership and Success

The Breadwinner


by Courtney E. Ervin

Two lawyers, one big life decision: How my husband and I are working to eradicate the stigma of putting my career first.

Silhouette of women in suit stands in the middle of equal scale

Top of the Mountain


by LaVon M. Johns and Patricia Brown Holmes

Making partner, ginning up huge business, earning peer respect and industry influence are laudable goals—but it’s important to pursue them methodically and mindfully. One dynamic duo who have reached the mountaintop show how it’s done.

Red flag sitting on the top of a mountain summit

Crucial Alliances


by Jane E. Young

Workplaces everywhere have changed since the start of the pandemic in ways that can be highly beneficial to women. Here’s a road map for consolidating recent gains—and making the most of them going forward.

Woman at desk working with roadmap behind her

A Beautiful Mind: Motown Beginnings, Top Dealmaker


by Sara Collin

Motown scion Farah Fakir Cook has achieved her own stardom away from the klieg lights, helping clients navigate ever-changing currents in intellectual property and technology. One crucial topic looms especially large for her in the years ahead: How current law will contend with the rise of artificial intelligence.

Woman wearing pink suit standing against desk

Progress and Potential


by Michele M. Jochner

Women have undeniably made great strides in our profession in recent decades, but much remains to be done. What’s the current state of the industry, what lies ahead—and what do lawyers (male and female alike) say are the most important issues going forward

Watercolor image of person on a mountain looking at night sky

Canadian Women in the Legal Profession: From Non-‘Persons’ to Chief Justices


by Sara Collin

We take an in-depth look at the challenges and optimistic future of women in the Canadian legal sector.

Canadian Women in the Legal Profession

Trending Articles

The 2024 Best Lawyers in Spain™


by Best Lawyers

Best Lawyers is honored to announce the 16th edition of The Best Lawyers in Spain™ and the third edition of Best Lawyers: Ones to Watch in Spain™ for 2024.

Tall buildings and rushing traffic against clouds and sun in sky

Announcing The Best Lawyers in South Africa™ 2024


by Best Lawyers

Best Lawyers is excited to announce the landmark 15th edition of The Best Lawyers in South Africa™ for 2024, including the exclusive "Law Firm of the Year" awards.

Sky view of South Africa town and waterways

The Best Lawyers in Spain™ 2023


by Best Lawyers

Announcing Spain's recognized lawyers for 2023.

Flag of Spain

The Best Lawyers in Portugal™ 2024


by Best Lawyers

The 2024 awards for Portugal include the 14th edition of The Best Lawyers in Portugal™ and 2nd edition of Best Lawyers: Ones to Watch in Portugal™.

City and beach with green water and blue sky

Announcing the 2023 The Best Lawyers in America Honorees


by Best Lawyers

Only the top 5.3% of all practicing lawyers in the U.S. were selected by their peers for inclusion in the 29th edition of The Best Lawyers in America®.

Gold strings and dots connecting to form US map

Best Lawyers Expands Chilean 2024 Awards


by Best Lawyers

Best Lawyers is pleased to announce the 14th edition of The Best Lawyers in Chile™ and the inaugural edition of Best Lawyers: Ones to Watch in Chile™, honoring the top lawyers and firms conferred on by their Chilean peers.

Landscape of city in Chile

The Best Lawyers in South Africa™ 2023


by Best Lawyers

Best Lawyers proudly announces lawyers recognized in South Africa for 2023.

South African flag

Best Lawyers Expands 2024 Brazilian Awards


by Best Lawyers

Best Lawyers is honored to announce the 14th edition of The Best Lawyers in Brazil™ and the first edition of Best Lawyers: Ones to Watch in Brazil™.

Image of Brazil city and water from sky

The 2023 Best Lawyers in Portugal™


by Best Lawyers

Announcing the elite group of lawyers recognized in Portugal for 2023.

Green and red Portuguese flag

The Best Lawyers in Peru™ 2024


by Best Lawyers

Best Lawyers is excited to announce the landmark 10th edition of The Best Lawyers in Peru, the prestigious award recognizing the country's lop legal talent.

Landscape of Peru city with cliffside and ocean

Best Lawyers: Ones to Watch in America for 2023


by Best Lawyers

The third edition of Best Lawyers: Ones to Watch in America™ highlights the legal talent of lawyers who have been in practice less than 10 years.

Three arrows made of lines and dots on blue background

The Best Lawyers in Mexico Celebrates a Milestone Year


by Best Lawyers

Best Lawyers is excited to announce the 15th edition of The Best Lawyers in Mexico™ and the second edition of Best Lawyers: Ones to Watch in Mexico™ for 2024.

Sky view of Mexico city scape

2021 Best Lawyers: The Global Issue


by Best Lawyers

The 2021 Global Issue features top legal talent from the most recent editions of Best Lawyers and Best Lawyers: Ones to Watch worldwide.

2021 Best Lawyers: The Global Issue

What the Courts Say About Recording in the Classroom


by Christina Henagen Peer and Peter Zawadski

Students and parents are increasingly asking to use audio devices to record what's being said in the classroom. But is it legal? A recent ruling offer gives the answer to a question confusing parents and administrators alike.

Is It Legal for Students to Record Teachers?

Announcing the 2024 Best Lawyers in Puerto Rico™


by Best Lawyers

Best Lawyers is proud to announce the 11th edition of The Best Lawyers in Puerto Rico™, honoring the top lawyers and firms across the country for 2024.

View of Puerto Rico city from the ocean

IN PARTNERSHIP

Making an Impact


by John Fields

Morelli Law Firm has changed countless lives through its transformative results.

Three men in suits against New York skyline