Dave Swanner's No Frills Advice on Starting a Firm
Dave Swanner has some great, defy-the-experts advice on starting a law firm. The essence: Don't overplan, get a phone line and some business cards, and just do it. Though Dave admits in his comments that this no frills approach may not work for everyone, particularly those with major financial commitments, he's definitely on to something. Sometimes lawyers get so bogged down in planning every detail of their practice, in waiting to have enough clients or enough money, that they may miss the opportunity to go solo at all.
Should you go with a judge or a jury?
Over at Legal Blogwatch, I posted here about a recent analysis by Volokh guest blogger Andy Leipold, who found that criminal defendants stand a better chance of acquittal before a jury. I thought that the study might help some of my readers who practice criminal law to make more informed decisions about a bench or [jury] box trial.
And by the way, when postings here at MyShingle are slim, you can always catch me over at Legal Blogwatch writing about a variety of legal news stories.
Would You Run This Ad?
At Law Firm Blogging, Nathan Burke offers this stand-out ad with the tagline "800 Pound Gorillas are great at getting your attention...but does that make them the right attorney for you?" As Burke admits, the ad might be a bit "out there," but the point is valid:
just getting your name out there is not enough for small firms. You can’t just say why clients should come to you; you also need to address why clients should not go to the big guys.
I'm not sure if I like the ad, but Burke is on to something. Most of the books about marketing small firm practices assume that solos all target small consumer clients, where tools like yellow pages or library seminars or setting up a booth at the county fair will attract clients. In reality, the more recent trend in solo practice is where smaller lawyers compete with the big boys in areas like securities, complex litigation, energy regulation, telecom and other traditionally biglaw practice. Yellow pages and local gigs don't help attract these types of business clients; the ad such as that suggested by Burke is at least a good start in the right direction.
Solos Have ZEAL!
Many state ethics codes talk about the duty to zealously represent clients, but if that's the case, where has all the zeal gone? That's the topic of an intriguing paper by Anita Bernstein entitled The Zeal Shortage that I read about in this post at the Legal Ethics Forum weblog.
Here are some excerpts from the post:
Zeal is hard to define, but for Professor Bernstein it includes “enthusiasm, energy, and benevolent effort,” and is negated by boredom, indifference, and detachment (109). It is a disposition (an “aspect or attitude”) that, in the context of an agency relation, “makes the agent’s relationship to the principal more focused, fervid, and intense.” (112)
Professor Bernstein is pro-zeal. She thinks it ranks with care and loyalty among lawyerly virtues (105), but gets a bad press in legal ethics circles. People confuse zeal with zealotry, meaning too-aggressive lawyering (110), she thinks, and this is wrong: Zeal is to zealotry as faith is to fanaticism. It would not, for example, compel a lawyer to whitewash or justify torture. (113) [...]
But Professor Bernstein also thinks there is a zeal shortage, in school and in practice, and I do not think that is right. I will start here and then note a few other points on which I differ from what I see as the thrust of Professor Bernstein’s argument.
According to the post, Professor Bernstein suggests that lawyers may re-discover their zeal in pro bono work. Nothing wrong with that suggestion. But my belief is that if you want to see real ZEAL at work in the legal profession, have lunch with a bunch of solos at a local solosez lunch. Read the many, many solo practice blogs (even more than noted in the link) where the zeal and the passion for practicing law the way it should be or changing the profession leaps right off the screen. Maybe biglaw killed the zeal in our profession, maybe not. But I know that zeal thrives in solos.
Who's paying this ABA Cost?
OK, as regular readers know, I'm not a huge fan of the ABA. So I didn't feel badly to learn about this somewhat underpublicized announcement (6/23/06) about the ABA's agreement to pay $185,000 for violating a 1996 antitrust consent decree. From the Department of Justice press release:
The consent decree prohibited the ABA from misusing the law school accreditation process. The Department also filed a proposed order and a stipulation in which the ABA acknowledges the violations alleged in the Department's petition and agrees to reimburse the United States $185,000 in fees and costs incurred in the Department's investigation. The proposed order is subject to court approval.
I guess if ABA dues go up next year, we'll know why. Seriously, who pays when the ABA gets itself into this type of a mess?
Tips for Family Law Practitioners
Though not every family law case ends up like this one, nonetheless, family law cases are often fraught with more emotion and problems than any other type of case. Clients often come with misinformation about the process and unreasonable expectations about how much the case should cost.
While trends such as collaborative lawyering may address some of these problems in the long run, this article, Enlightening Family Law Clients (National Law Journal 6/26/06) has some ideas for the short term. Authors Mary Kay Kisthardt and Barbara Handschu advise that you provide clients with as much information as possible on family court proceedings, to keep records of client communications in writing, return phone calls and draft a retainer that allows you to withdraw from the case if the client fails to pay.
What other tips do you have for making family law cases more manageable for lawyers and their clients?
Rooting for GAL
It's one thing to write about the ethics rules relating to leaving a law firm, as I did at this post. But the way that a law firm should treat a departing attorney and shared clients in theory and the way that things actually work in practice are often entirely different realities, as this post by Greatest American Lawyer demonstrates. GAL's post reports that he's been sued by his former firm over fees associated with a matter that GAL handled at his former firm. The firm initially tried to steal the case when GAL left the firm by inaccurately advising the client that she had no option but to use a new lawyer from the firm. The ethics rules require that firms and departing lawyers advise clients of their right to select which attorney to use.
For more details on the status of the claim and on GAL's view on how it should be resolved, take a look at the post. GAL, we're rooting for you!
Solo practice: the most overlooked, underrated law option
With all of the terrific solo blogs, I'm still amazed that people still don't get solo practice. Among the prime offenders are Ann Israel, who writes the Advice for the Lawlorn column for New York Lawyer and her correspondents. Israel would rather advise folks to leave the practice of law than to give solo practice a chance.
Consider this recent exchange here:
[excerpt from writer, emphasis added]: We already have too many good lawyers - why encourage bad ones to keep on plodding through the system? [...] As for the impact of law school grades on a job search, I do think that the vast majority of employers (law firms in particular) care very much about grades. Frankly - anyone who graduates at the bottom of their class should just find something else to do because their grades will always be the hurdle that prevents them from earning a decent salary and getting challenging work. The only exception that I can think of is if the lawyer has a huge network of contacts and can practice on his own.
[Ann Israel reply] Your thoughts are worth far more than two cents. In fact, what you have to say is priceless advice to someone like our hapless friend, "Dreamer." [Dreamer, who admittedly has a victim mentality, had flunked the bar several times and after four years, could not find legal employment]
Law school grades may preclude lawyers from law firm jobs, but they don't dictate success. Solo practice provides an opportunity for success to those willing to work hard, no matter their grades in law school. In fact, sometimes people who performed poorly in law school find that they do well in practice because they're not dealing with hypothetical questions that are tricky for the sake of being tricky, but with tangible problems and real people where the right answer really matters.
Solo practice is a viable option for any lawyer, including those who did poorly in law school or those who can't find jobs. Solo practice probably would not work for "Dreamer" the subject of the Ann Israel post (because he's apparently not willing to take responsibility or iniative) but it can salvage other lawyers' careers. Many lawyers who never found a fit in large firm practice now thrive as solos. I am saddened at the way our profession so willingly wastes our capital: large firms grind up young lawyers and spit them out when the economy cools, so called career experts advise less qualified lawyers to flee the law rather than direct them to explore the solo practice option. Perhaps there are too many lawyers, but are we right to discourage those who get off to a rough start in law school or early in their career to leave the profession? Are we merely separating the wheat from the chaff - or are we throwing away lawyers who might vindicate an innocent defendant or extricate an spouse from an abusive marriage or help a homeowner scammed by a contractor get her money back?
To the Bars: Don't Make Me Part of Your PR Scam With Mandatory Pro Bono Reporting
Evan Schaeffer posts here that the Illinois Bar is the latest bar to implement a mandatory pro bono reporting requirement whereby lawyers must report pro bono activity annually to the bar. According to Schaeffer, "the Illinois Supreme Court hopes that the new reporting requirement will serve as a reminder that pro-bono work is important. In addition, it will allow information to be gathered about lawyers' efforts overall."
On the surface, mandatory pro bono reporting seems innocuous enough. Lawyers aren't forced to perform pro bono and it's not really all that time consuming to fill out a form once a year and send it in to the bar. In fact, over at Legal Ethics Forum, Don Burnett analyzes mandatory pro bono reporting requiremens, concluding that those who oppose them are "really disputing the core message of ABA Model Rule 6.1." (providing that lawyers should aspire to 50 hours of pro bono annually).
Even though I agree that lawyers have a professional obligation to perform pro bono because the requirements would disproportionately penalize solos. Most pro bono requirements do not recognize that the work that many solos perform day to day is pro bono. But at the same time, biglaw firms would be free to characterize as pro bono work at the rate of $400 an hour, marketing efforts and even a loss on attorneys fees representing high profile defendants. (under this last definition, given the firm's potential loss in connection with representing Jeff Skilling, O'Melveny, Meyers would win a pro bono award!).
And that's what I despise about mandatory pro bono reporting. Lawyers send in hours for any kind of pro bono work, whether it's really pro bono or not. The bars collectsthese numbers and then uses them to give themselves a huge public pat on the back (hey, look at how much pro bono are lawyers are doing) - similar to what the ABA did last summer. Yet as I described in my ABA post, for all the millions of hours of pro bono that lawyers allegedly perform, we've still not made a dent in providing lower and middle income people in this country with meaningful and affordable access to law.
Mandatory pro bono reporting forces me to participate in this massive PR sham, it takes the pro bono hours that I report and uses them to make the bar look good, when frankly, when it comes to providing the poor with access to law, we still have a long, long way to go.
Ed Poll Stands Up For Solos
Here's a huge public thanks to Ed Poll, one of today's preeminent law practice management experts and coaches, for sticking up for solos. In this post, Ed joins the chorus of bloggers speaking out against the New York bar's recently proposed restrictive advertising rules. And in this post, Ed takes on the California bar, lambasting it for requiring lawyers to disclose whether they have malpractice insurance without taking concommitant steps to ensure that affordable malpractice insurance is available to attorneys.
Ed's posts couldn't be more timely for me (same is true for Jim Calloway's take on the NY Rules). Just today, I was lamenting that many law practice management experts prefer to use new regulations as an excuse for offering new service instead of using their stature and expertise to speak out against rules that don't make sense. For example, I've seen a couple of comments on various listserves from marketers proposing to advise NY attorneys on new PR techniques to circumvent restrictions on client testimonials. But Ed is the first LPM expert I've read who apparently, isn't looking to profit off the rules by accepting them and then charging solos to help them comply. Rather, he's using his expertise to help our profession achieve the right results.
There are many gurus who "talk the talk" of solo practice. But Ed Poll is out here in the trenches, walking the walk along with us.