Years ago, before law school, I talked to a friend who was a junior associate in a big law firm in a big city. I asked her about her work day and she said it was often 9-to-5. I responded with surprise, and she corrected me: “No, 9 am to 5 am. But not all the time. It can be 9 am to 5 pm on Saturdays.”
She was sort of joking, and sort of not. But more and more, clients (and employers) are expecting their lawyers to be available on weekends and holidays. (We can probably thank smart phones for that.) But does that expectation translate into an duty?
First, employers can generally set whatever communication requirements they want for their employees—lawyers are typically salaried/exempt, so they don’t need to worry about overtime for phone calls answered at odd hours. Some states do mandate a day of rest for particular employees; in Wisconsin this applies only to retail and factory workers. Religious observance may also come into play; most employers must provide reasonable accommodation for their employees who observe a Sabbath or other holidays on which they cannot work. But most lawyers will not need such accommodations and employee burnout, rather than running afoul of EEO laws, is the bigger risk to the employer in requiring its employees to be constantly available.
For the lawyers themselves, Rules 1.3 and 1.4 (diligence and communication ,respectively) come into play here (and these Rules are substantially identical in most states, including Wisconsin). Both require “reasonableness”—a lawyer must act with “reasonable” diligence and promptness and must keep the client “reasonably” informed. (And “reasonable,” of course, means “the conduct of a reasonably prudent and competent lawyer.” Super helpful.)
These Rules do not set forth any specific requirements for responding to client communications on weekends, or any other time. So, what’s reasonable will depend on the circumstances—is trial coming up? Is the email about a flight that needs to be booked in a hurry? In those circumstances, you may need to respond right away. Most routine communications can wait until business hours, but if you’ve previously made a habit of answering emails or taking calls on weekends or late at night your clients may be expecting the same treatment for every communications. So, managing expectations is important.
But even if you generally take pride in being reachable all the time, it is still very reasonable to take vacation or otherwise be unreachable for a bit. In those cases, set an auto-responder for your email and change your outgoing voice mail greeting; let demanding clients know in advance that you will be gone and, if possible, who might be able to answer their questions in your stead.