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August 13, 2007

Oh, I Wish I Could Have Sat On This Panel! - Why Solos Get Picked On By the State Bar Associations.

Jennifer Moline is sitting in at Legal Blogs and points us to this post by Legal Pad called " The Reason Bar Groups Pick on the Little Guy."  This post is the result of a Bar Panel Discussion at the San Francisco ABA Meeting.  Here are some of the key points made:

Solos and small-firm attorneys make up 70 percent or more of all lawyers in America and, therefore, by sheer numbers alone rack up more discipline cases. They also tend to represent unsophisticated clients who don’t understand the legal system and file more complaints.

Corporate clients sue for malpractice if dissatisfied by a lawyer’s performance.....whereas clients of solos and small firms turn to the State Bar for relief.

Almost all of them agreed that one big problem is that law schools aren’t doing a good enough job at teaching students how to manage a law practice.

“I have this radical idea that training is important,” Butler said, noting that when he got out of law school, he was a bit lost. “So I had to take it upon myself to learn how to practice law.”

He and others noted that solos and small-firm lawyers have no mentors, unlike attorneys who go to work for big firms.

That was backed up by Rosenfeld, who said K&L Gates — with more than 1,000 attorneys — holds a weeklong “rookie school” for its new lawyers. They’re taught ethics, practice management, legal writing and effective communication, among other skills. Rosenfeld said state bar associations should try doing the same for solos and small-firm lawyers.

Where do I begin?

First, let me say I do not know any of these lawyers.  I also understand many of these quotes were probably part of a larger conversation so when taken out of context they may make a different statement then what was intended or what was understood by their audience.  Nor do I know the inflections. In addition, I don't know the intentions of each participant so I will respond accordingly.

Yes, more than 70% (actually, 74%) of all private practice attorneys in this country are in firms of 1 - 4 "employees" according to the U.S. Census.  Therefore, it makes sense a proportionate amount of bar complaints would be lodged against solos and small firms.  However, to say the majority of practitioners in this country represent unsophisticated clients smacks of snobbery and insults clients and the majority of talented and gifted solo lawyers.  To further indicate a sophisticated client would simply sue you for malpractice versus grieving you makes it sound like a desirable alternative.  I'd rather dispatch with a grievance quickly then face litigation.

They all agreed law schools fail the lawyer.  By not recognizing the practice of law is also a business, the law student is ill-prepared.  Where we part company is stating the solution lies with the Bar Associations.  The solution is for law schools to recognize the practice of law cannot be separated from the business of law; the learning process should carefully weave a tapestry of academics and training in order to benefit it's students and the profession as a whole.

And for those who did not get the law school training they needed, the professional world is full of mentors and smart solos can create a safety net of mentors to further their post-graduation education.  Whether Solosez (2400 mentors), listservs, voluntary CLE, bar associations or others, mentors abound.  The difference is you are seen and treated as a peer versus a subordinate while you build your future.  And it is a cruel fairy tale, like Santa Claus, perpetuating the myth a firm will provide formal training and mentors so 'get a job.' 

Of the 40,000 law students graduating each year, how many land positions at K & L Gates?  And is a one week boot camp the answer?  No.  If it were every law school would offer some version of this and call it a day.  No, it has to be 'absorbed' over the three year law school educational experience and then refreshed on a daily basis during the actual practice of law...not state mandated mentoring before you can practice law or mandatory CLE. It all starts with the foundations of the education.

But I do agree without complaints the Statewide Grievance Committee ceases to exist. Are you thinking what I'm thinking?  Maybe grievances that shouldn't be prosecuted get pushed forward anyway to justify the Committees existence? That solos and small firms get hit hardest because they don't have the time or the stamina or clout to get them dismissed?  Just typing out loud.

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Comments

Mike Frisch

As a longtime and former bar prosecutor, I have some thoughts on this topic. First, a significant portion of bar discipline is now imposed by consent. Small firm/solos have limited resources to fight with the bar counsel and a strong incentive to put the complaint behind them. Second, bar counsel tends to prosecute the easiest cases to prove, such as neglect. The conflicts cases that probably merit prosecution tend to get pushed aside. Also, the conflicts rules are sufficiently vague as to make enforcement more difficult. Third, big firm lawyers dominate volunteer bar disciplinary systems. They sometimes (with notable exceptions in my experience) bring their biases--there but for the grace of God go I--to approving decisions to prosecute and to resolving disputed facts.

Susan Cartier LIebel

Mike, Thank you for your thoughtful, insightful and very informative comments. Welcome to the conversation. We are all looking forward to more great input.

Grant D. Griffiths

Oh, how true your last paragraph rings. Great post Susan.

Quad Cities Injury Lawyer

I love the idea that a week of "rookie school" is supposed to teach new associates everything they need to know.

I also take issue at the suggestion that the majority of mistakes are made by solos who jumped right into solo or small firm work right out of law school. Truth be told, someone who spent a few years as a BigLaw associate probably hasn't ever handled an entire case from start to finish, let alone had any role in managing a law firm.

I do agree, however, that the majority of solos (at least where I'm from) practice in the areas of criminal law, family law, trusts/estates and personal injury/workers compensation. While most of those clients don't retain attorneys on a regular basis, I wouldn't call them "unsophisticated." "Unsophisticated clients" is a loaded term used to put down a certain type of lawyer.

One final point - larger firms are more capable of handling disputes in-house. BigCo can call BigFirm, and BigFirm can fire the attorney responsible for the mistake, pay for its mistake, etc.

BH SOLO LAWYER

I'm a solo, but I have to say, I think one reason small firm and solo lawyers bear the brunt of Bar Association discipline, is that they DESERVE IT.

When I read the discipline reports in the California Bar monthly, I cringe at what these lawyers are doing...

I think large firms have checks and balances in place to avoid trust-accounting problems, misdirected and mis-spent client funds, etc. Also, in large firm, someone's going to notice if a lawyer is high, or drunk... and (theoretically) intervene to prevent that lawyer from screwing things up for a client.

I know and work with lots of small firm lawyers, and what I see is a group of overworked, overstressed individuals with little or no business or management training, dealing with customers using a "fly by the seat of your pants" approach.

Yes, law schools are partly responsible for not teaching business and management skills, but let's be realistic. If a set of skills you NEED wasn't taught in school, you GO OUT AND GET the training elsewhere. The lawyers ARE responsible for their own competence, after all... competence goes beyond merely knowing the law. You've also got to know how to run your business.

Another point... many, many of my colleagues have NO CLUE how to give client/customer service. Yes, sometimes it's hard to find the time to return calls, respond to emails, etc., BUT IT IS PART OF THE JOB. In fact, often, it's the most important part.

Also, we need to learn how to manage client expectations. If the client KNOWS you have a full-schedule on Thursday, she won't be angry if you don't call 'till Friday.. Personally, I try to give clients reasonable estimates of when to expect to hear back from me, when results will be likely, etc., Also, if I let them know what NOT To expect (like returning calls within the hour), they're rarely upset when I live up to my promises.

I give clients my cel and home office numbers, with a polite request that they only use them for true emergencies and after-hours calls when they KNOW I'm waiting to hear from them. Most of them respect my wishes.

Oh yeah, and don't steal from clients.

Be honest and straightforward... it never backfires.

Covering up mistakes is the biggest mistake you can make.

So.. yes, solos and small firms are disciplined more often... and yes, they probably need it more often.

Bubba

I spent a total of 20 years as a solo, before and after a stint in a larger firm. Along the way, I defended some fellow solos on bar complaints. Then, to everyone's surprise, I found myself sucked into the vortex of bar leadership.

In my state, at least, the generalization about bar disciplinary panels being dominated by big firm lawyers is inaccurate. The investigative panel is about 10% from big firms, and the review panel is 33% from large firms. The rest are solos and small firm lawyers, so bias against solos and the types of practices they tend to have is not a factor.

The loneliness and stress of solo practice, particularly in a general practice where one tries to wear too many professional hats while also handling practice management roles for which law school does not prepare us, is a prescription for trouble. Add in a problem with alcohol or drugs, a domestic problem, depression, or a combination of those, and bad things happen. The GC of our state bar told me that probably 90% of bar discipline cases probably would not be there but for alcohol or drug abuse problems. Moreover, the 74% of lawyers who are in solo or small firm practice includes virtually all of those who were in the bottom 5% of their law school class, whose capacity for juggling all of this may be limited at best.

Big firms don't all limit hiring to the "top 10%" but they do screen screen out the lowest performers. That clearly doesn't mean they are morally, ethically or professionally better -- far from it -- but they don't hire the bottom 10% of lawyers. They also have office managers, accounting staffs, and management controls to reduce the risk the types of screwups that most often lead to bar discipline. And they have the resources to effectively defend against any disciplinary issue that may sneak through.

Finally, Bar disciplinary counsel are stretched thin, and easily outgunned. Therefore, like any prosecutor exercising discretion in picking the cases to prosecute and keep the win rate high, they tend to pick the low hanging fruit by prosecuting lawyers who will be relatively ineffectual in response.

Bill Manion

Having been both an in-house lawyer (for 2 different labor unions), and a sole practitioner (at 3 separate times), I can identify with and agree with this blog. Large organizations have clout: clout in sheer numbers including influence on clients and employees, which resonates with politicians, and, therefore, elected officials. They have clout in the ability to donate money, and influence others to donate money because of a necessarily bigger network, and THAT resonates with elected officials as well. This means that they can pay for publicity, they get appointments to grievance boards, and to boards and authorities on every level, and are on the short list in those states where judges are chosen by "merit selection" instead of popular election. Sole practitioners have little chance unless they maintain adjunct professor ties with the local law school, another large organization.
The answer seems to be sole practioners joining together in some form of organization themselves, but what form, and how it would operate, would vary from state to state depending on laws and state rules of professional conduct. But it is an area to explore.

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