How NOT to Handle a Mistake
It's something that all of us practicing lawyers dread: we file a case, and it's lost or somehow misplaced at the court, resulting in a missed statute of limitations. So if you find yourself in this situation, do you (a) try to appeal the dismissal of the case, arguing that the clerk erred; (b) 'fess up to the client and offer to make her whole; (c) seek advice from a trusted colleague on what to do or (d) conceal the mistake and present a "settlement" to the client, purportedly from the defendant.
The lawyer who was the subject of the disciplinary action described by Mike Frisch in this post at the Legal Profession Blog , chose "c" and "d," and received a 2 year suspension. As I'll discuss, I think that's too harsh (and for that reason, I'm not using the lawyers' name in this post, to avoid caching this event in the search engines). At the same time, the decision teaches some great lessons for solos, which I'll summarize at the end of this post.
According to the decision (embedded in Frisch's post), a lawyer (apparently a solo) agreed to represent a client in a small personal injury matter, valued at around $10k (the policy limit). She filed the complaint the same day as she filed a complaint in another case. The clerk erroneously assigned the same docket number to both complaints, and as a result, one of them was apparently never deemed filed. When the lawyer discovered the error, the statute of limitations had passed (it's not clear from the decision why the lawyer never tried to correct the mistake or otherwise challenge the error).
The lawyer informed the defendants that the suit was finished, since the SOL had passed without the lodging of the complaint. The lawyer never informed her client of the dismissal. Instead, she decided to simply make the client whole by paying her what she would have received if she had gotten the $10 k settlement expected. Prior to making the proposal, the lawyer consulted with a colleague, a partner at a prominent DC law firm, about the ethics of not disclosing the dismissal to the client. The partner advised that not disclosing the dismissal would not violate applicable ethics rules, so the lawyer proceeded with her plan. She extended a "fake" settlement to the client, indicating the client's portion. Subsequently, the case reached the bar (though it's not clear how, because the client insisted that she was happy with the attorney and would hire her again). The DC Board originally recommended a 30 day suspension, but the court upped it to a two year suspension. And the lawyer who provided the advice received 60 days for "aiding and abetting" in the violation.
The court ruling raises many questions in my mind. I'm not sure how any practicing attorney, particularly one at a top DC law firm, could ever believe that it's alright not to tell a client that her case was dismissed. But sheer stupidity requires correction or a humiliating public reprimand (assuming it's the first time it happened), not suspension. As for the lawyer who didn't reveal the dismissal, no doubt she erred big time. But it seems to me that she simply panicked. The case was dismissed, she feared embarrassment and felt that she could make it right another way. And she consulted with a colleague (though again, it's not clear why she didn't call the bar hotline). The lawyer wasn't extremely careless (the dismissal resulted from a quirky error), and I don't think she acted with malice. And the client got what she'd have gotten if the case had been properly filed, or even if she'd brought a malpractice action. Yes, what the lawyer did was wrong - but not to the tune of a two year suspension (again, assuming it's a first time offense), particularly, when her own client would have rehired her. I'd have given the lawyer an absolute maximum 60 day suspension, combined with plenty of CLE, and maybe train her to work at a bar hotline, to provide the kind of sound advice to other lawyers that she couldn't find in her case.
Still, some good can come out of this case if other lawyers can learn from it. Here are the lessons that I glean - please share your own ideas below:
1. DON'T HIDE A MISTAKE:
I've written about handling mistakes before, and I can't emphasize it enough. When you make a mistake, admit it, offer to fix it and move on. Hiding it will only make it fester into something far worse than it was originally. Here, if the lawyer had simply told the client the case was dismissed and offered to make amends, that probably would have been the end of the matter.
2. Keep a list of go-to resources for discussing ethics matters:
Don't try to mull over an ethics issue on your own - you're too close to the issue, and as a lawyer, you'll most likely wind up rationalizing the problem away. Compile a list of "go to" resources to help you with your ethics matter, and gather a couple of opinions, rather than relying on one. In my case, I always call the DC Bar hotline for ethics questions that arise in DC. I'll also post my question on Solosez (if you think lawyers aren't ethical, you ought to check out this list - I have never seen a group of more conscientious and honest lawyers committed to helping other lawyers do the right thing) and a smaller, more close-knit list. Finally, I'll consult with a colleague of mine who defends disciplinary actions as part of his practice. Who are your "go to" people for ethics questions?
3. Don't go before a bar hearing pro se?
In reading the decision, I noticed that both the solo and the biglaw attorney represented themselves pro se before the bar, something that I couldn't understand. Most legal malpractice insurance covers discipinary proceedings - was coverage denied because the lawyers didn't provide notice of the triggering event (which after all, they'd concealed?) Still, couldn't the lawyers have afforded to pay a lawyer to represent them before the disciplinary proceeding? I think that both the DC Board, and more importantly, the Court of Appeals give much more credibility to lawyers' defenses to a disciplinary action when they're represented by other counsel and not pro se.
Now it's your turn. Do you agree with the suspension, (I know, I'm a softie when it comes to lawyer discipline!) and what can other lawyers learn from this case.
Solo at Above the Law
When I started this blog back in December 2002, I lamented the absence of solo voices from mainstream legal media. But with blogs, we solos have come a long way. The most recent case in point: over at Above the Law, one of the most popular and widely recognized law related websites, solo Billy Merck of Georgia is blogsitting for David Lat. Congrats on this gig, Billy - and hopefully your new visibility will expand the readership of ATL to include a larger portion of the seventy percent or so of lawyers who don't work at large firms (which I imagine is the ATL's present, primary demographic).
If you had 20 hours of law student time this summer, how would you spend it? And if you're a law student, what would make you want to take a job with a solo?
This is a two part post, for my fellow shinglers, and also for law students. To my colleagues, first: Imagine that you had twenty hours of reliable law student assistance for the summer...how would you use it? Would you have the students help stock your blog with materials, like at SCOTUS Blog? Ask them to ghost write that law review article you've put off? Would you set them to work on billable matters, like Enrico Schaefer, with his wildly successful virtual law clerk program? Would you use them to help handle the pro bono matters you've been wanting to handle, but never had the time for? Or would you delegate marketing, having them identify opportunities to publicize your blog or speak at a conference?
And now, if you're a law student, what would attract you to working for a solo? Would you want to get hands on experience, like interviewing clients, responding to interrogatories and court-watching? Would you prefer enhancing your research and writing skills, by helping to co-author a scholarly article? What if a position included weekly trainings to help you succeed at a law firm or meetings with other attorneys who would talk about their career choices? Would you mind handling clerical tasks? What kind of work experience would make you most marketable? Would you prefer a position where you can work with other clerks, or would you be alright working directly with an attorney? And what's the lowest hourly rate that you'd settle for?
Lawyers and students, please send me your comments below.
Still Solo At 100
When you start a firm, sometimes, it's hard to imagine lasting 60 days or months. But some lawyers, like 100 year old, Richard Bird, who's profiled in this article has been running his own firm for more than 60 years! After graduating from Harvard Law in 1933, Bird held a variety of jobs, before starting his firm in 1943 and even now, he still works 9-5, Monday to Friday. And he's even argued a case before the Supreme Court, though for him, it wasn't a big deal, just part of serving clients.
Gotta Get Goals: Looks Like I'm It
I've been tagged by Susan Cartier Liebel to participate in Alex Shalman's Gotta Get Goals challenge that's wending its way around the blogosphere. Like Chuck Newton, I tend to be more of a dreamer than a planner. That's not to say that my ideas never come to fruition, or that I meander aimlessly, but I've never really charted a strategy or course of action to bring me from an idea to reality, and actually followed it through from start to finish. So at the very least, this exercise has lead me to wonder whether one of my goals ought to be setting more goals.
As for my other ideas or goals, I've listed the ones that I'm willing to share right now (some are proprietary, others too embarrassing, for prime time):
1. Argue a case before the Supreme Court. I see that I share this goal with Inspired Solo. For a long time, I thought that a Supreme Court case might come my way through serendipitous accident, but now with so many lawyers eager for a ticket to the high court, I think that I may have to engage in some active planning to figure out how to get there as well.
2. Work on a death penalty appeal and/or reverse a wrongful conviction.
3. Live abroad for a year with my family.
4. Come up with at least one killer app that will change the way law is practiced and make millions!
5. Go to medical school, or more realistically nursing school. I've never believed that I was cut out for one career, and I think in many ways, law and medicine are analogous in that both professions find ways to solve people's problems. This is a longer term goal, at least five more years out, and by that time, I'm not sure whether I'll have the energy for a residency, which is why nursing is the more attainable goal.
6. Pay for my daughters' college education without taking out loans (but of course, requiring my daughters them work (or start their own business) during school and the summer to pay for their own books and personal expenses)
Great Criminal Law Resource, and Why It Helps Solos
At Illinois Trial Lawyer , Evan Schaeffer shares a wonderfully valuable resource, The Center for Criminal Justice Advocacy. The Center was formed as a free, non-partisan training resource to assist new lawyers in becoming competent criminal practitioners. And one of the Center's missions is to provide newly licensed sole practitioners with materials to provide a structured analytical approach to planning and conducting a criminal trial. The site is chocked full of resources, including sample opening statements, witness interview forms and even law office management tips for solos setting up a criminal practice.
The CCJA site will help far more solos than those who specialize in criminal work - and in fact, arguably provides a more significant service for those who don't necessarily seek to focus on criminal work. In my view, whether you want to practice criminal law or not, handling criminal cases on a court appointed basis offers an excellent way for solos to build skills and make some money at the same time. When I started my firm, I was adamant about getting into court so I signed up for DC's court appointed panel. Within two years, I'd argued several suppression motions and had a couple of bench trials, two jury trials and sentencing hearings. I earned some money (enough to pay rent, at least) and acquired the experience that I'd craved. But I was fortunate: the DC Public Defender's office offered a two day training program that taught new court appointed lawyers exactly what we needed to do from arraignment through appeals. That course, combined with a $60 handbook on DC Criminal Practice and a couple of days of court-watching gave me enough of a foundation to actually procure pretty good results, considering my lack of experience.
The CCJA site provides much of the background that I received in my DC training course (though of course, the information is more general rather than jurisdiction specific). Nevertheless, with a resource like this, new solos who want to sample criminal work either to make some money or get courtroom experience can do so more readily, while still serving clients with the level of competence they deserve.
The Asking Bird Catches the Worm, er, Client
I'm not sure how I overlooked this gem that Dan Hull of What About Clients which asks why are lawyers so shy when it comes to asking for work. In Hull's experience, his pitch to clients, which concludes with "we'd love to work with you. How can I win or earn your business" typically wins raves because it's refreshing and direct.
Is the careful, rational, polite, risk-averse "lawyer personality" to blame? I have no idea.....but I do know that business clients--whether or not they buy the image of the fire-breathing lawyer-AlphaHuman they see on television--expect lawyers to have the business instincts and the stones to ask for the work. So ask. Practice first if you must. Get a pitch and a strategy for each meeting. Don't wait until 30 minutes goes by or the table is cleared. Ask.
That's great advice, because after all, the worst the client can do is say no.
How Doing Good Can Help You Do Well
Many solos who'd like to perform more pro bono work can't do so for lack of time. So why not multi-task, and make pro bono work part of your marketing activities portfolio? Consider the example of lawyers profiled in this article, Creating a nonprofit helps others - and doesn't hurt business either (ABA Journal, April 2007), such as Anthony Hayes who created the non-profit organization Wills for Heroes (which provides no-cost estate planning documents for police, firefighters and emergency workers) or Wynnia Kerr who set up an animal adoption shelter in Seattle. In setting up these organizations, Hayes and Kerr simply wanted to help their respective communities, but their groups have expanded beyond their wildest dreams. And through their role as founders, Hayes and Kerr have gained positive visibility and developed contacts with other lawyers who have participated in their organizations. And eventually, these connections and publicity can potentially lead to referrals or generate clients.
Neither Hayes nor Kerr started their groups with any intention of building business. But to my mind, there's nothing wrong with using pro bono for part of marketing, so long as you're clear about your intentions. In fact, as I see it, many blogs, particularly those that are consumer-oriented, are pro bono, or at least public spirited in nature, in that they help educate the public about legal issues. And focusing on pro bono activities for marketing is also a great tool for lawyers who uncomfortable in traditional networking settings, like happy hours or cocktail parties, which some lawyers find intimidating or demoralizing. So the next time you're feeling guilty that building a practice hasn't left you time for pro bono or community service, instead of griping, figure out a way to help a worthy cause that's important to you and just go do it. You may just find, that by design, or accident or karma, that your good work for others will yield rewards for you.
Should We Rescue Biglaw, or Run From It?
At the Ms. JD conference that I attended last week, one woman responded to various remarks on the benefits of starting a firm (by some of us troublemakers in the picture) by saying something to the effect that "Starting a firm is all well and good, but if everyone flees biglaw life, firms will be left stranded as the last bastions of male dominated hierarchy." That comment has been bearing heavily in my mind since, making me wonder whether lawyers have an obligation to fix biglaw.
In fact, from what I gleaned from Ms. JD, part of its mission is to ensure that female lawyers are represented in the upper echelon, power branches of the legal profession, such as the judiciary and biglaw. In other words, at least part of Ms. JD's goals is to help women with fight, not flight. And as I posted here at Legal Blogwatch, another group, Students Building a Better Legal Profession just formed, with a mission of changing the modern law firm business model to make it more sustainable and profitable and also allow for a more balanced lifestyle. I support these students and wish them the best. I'm impressed that they're taking charge of their future and that they're optimistic enough to believe they can change it. That passion will serve them well whether they succeed or not. And in fact, back when I was a student, I would have done the same - and indeed, in some cases, I did. But now, I'd rather just practice law than fight or rescue a system that's comprised of lawyers who ought to be smart enough and savvy enough to save themselves if indeed the system is failing (and I'm not convinced we're at that point).
What's your view? Are these students on the right track in trying to change biglaw from within? Or if you don't like how biglaw works, should you choose another option?
Striking It Rich by Striking Out on Your Own
Thanks to a tip from a sharp eyed reader, here's a link to a story that I overlooked: The Secrets of Million Dollar Solos, (GM Filisko and Meg Tebo, ABA Journal 3/29/07) that features four solos running million dollar practices. There's much that other solos and the legal profession generally can learn from these four lawyers' respective success. Here are the lessons that I gleaned:
Billables alone won't make you rich Some, but not all of the lawyers featured handle contingency cases. But interestingly, even those lawyers who did not handle contingency work offered alternative billing arrangements such as flat fees. The use of alternative billing, be it flat fee or contingency or some other model is significant, because as a solo, the billable hour limits you to the number of hours you can bill in a year. Even if you bill $400 an hour, 30 hours a week, 50 weeks a year, you won't hit the million dollar mark. By contrast, alternative fee arrangements can help you earn more without necessarily working more hours.
Outsource Virtually all the attorneys interviewed outsourced work to other lawyers, paralegals or research companies to keep overhead low. Employees are costly. At the same time, employees can help leverage earnings, which is essentially the model used by biglaw. Outsourcing gives lawyers the best of both worlds: qualified workers at a lower cost who can still be billed at a higher rate. And when and if you decide to hire, do so carefully.
Low overhead At least one lawyer described that lawyers don't need all kinds of fancy trappings to attract clients. And when you keep overhead low, you keep more money for yourself. Many large firm attorneys who leave their firms to start a practice are surprised to discover how much they can earn by charging as little as half to seventy five percent of their big law billing rate, simply because they keep so much more of what they collect.
Of course, for some solos, starting a firm isn't all about the money, but about autonomy and flexibility. The article acknowleges these goals as well. After all, as the disatisfaction at biglaw makes clear, money doesn't always buy happiness; sometimes you trade money for other things that matter.