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August 17, 2008

My Unexpected Phone Call with Jay Foonberg

This past Friday I had an unexpected and very wonderful hour long telephone conversation with Jay Foonberg.  If you don't know who Jay Foonberg is (which would be surprising if you are a solo) he has been called the 'Dali Lama' of Solo Practice and the author of the most stolen book out of law libraries 'How To Start and Build A Solo Practice."  among other books and thousands of articles on the subject. My students used his book every semester for the eight years I taught at Quinnipiac University School of Law and for good reason.

But more impressively, to date he has donated the proceeds of this solo practice bible to the ABA and that donation now stands at more than $2 million dollars, 50% directed towards the Young Lawyers Division.

While I won't get into the substance of our conversation I do want to share some of it which moved me to write this post, some things every lawyer should remember on those days when we have trouble remembering why we do what we do:

The law is a noble profession. Jay eloquently discussed the nobility of our profession.  He reminded me of it's incredible power, the power we all possess once we have earned the privilege of calling ourselves a lawyer .  Sometimes we get so caught up in running our practices, our lives, feel weighted down by student loans and obligations we forget why we became lawyers.  We focus in on the payday versus the gratification of how we are one client at a time impacting the lives of others and the future course of one of the greatest legal systems on earth. Without laws people take matters into their own hands.  Anarchy and chaos ensue.

In the face of trying to run a successful solo practice this takes heart, perseverance and love of what you are doing to get you through the inevitable tough times when doubt can overtake you. If one is strictly in this profession to earn a lot of money you will be one of the fifty percent who leave the profession or worse, stay in it and be miserable.  Let's face it. Today, there are certainly easier ways to make more money.

The law is a profession, not a business. Jay, again, talked about why he will defend that being a lawyer is a profession and not a business.   Anyone can call themselves a professional.  A professional football player, an accountant.  But the word is misused.  These are occupations.  However, their rank and status in our society is based upon the prestige we bestow upon them such as blue collar versus white collar occupations.  Policeman versus hedge fund manager.  And this status we bestow usually turns on income, perks and/or freedom. This, however, should not be confused with 'professional.'

He believes with certainty there are only three professions:  Doctor, Lawyer and Clergy.  What distinguishes them from other occupations?  The oath.  We take an oath (which is protected by law) and swear to put the interests of the client, patient or parishioner before our own.  I personally believe as we get entrenched in our lives and feel the strain of trying to make a living, we forget the power we possess and the privileges we hold. 

Many call law a business (myself included) but we are not really clear when we say 'law is a business'.  I think most of us are unwittingly misspeaking.  So, I will at least clarify what I mean.

Being a lawyer, servicing the needs of clients is a profession. I agree with Jay on this.  However, in today's society in order to succeed in being able to provide your clients these professional services, you have to:

  • know how to reach those whom you can serve best,
  • utilize the technologies to do this effectively,
  • efficiently follow the professional rules relating to handling of money,
  • know how to collect on bills,
  • learn the principles of good management of your resources and your support staff. 

These skills are necessary to run a practice and we are learning they are skills best borrowed from the general business world.  I do not believe when practicing law the terms 'professional' and 'business' are mutually exclusive but they are misinterpreted. And it is cause for fiery debate. I do believe, though, this is where the two worlds collide and the lines get blurred. 

What some object to, and I think this is Jay's point, is when the professional purpose of what we do is overshadowed by 'the business machine.'  Where legal services are viewed as interchangeable with selling twinkies in the business machine we have created.  When the law is commoditized and profit becomes the goal rather than the reward. I agree.

The law is a profession.  In order to run our practices we need different resources to support our efforts to render legal services efficiently and effectively.  The principles, techniques and technologies to accomplish this are best borrowed from the business world.

And on a different note: Jay started our conversation by saying, "I'm a 73 year old man...."  When a person starts their conversation or a sentence with this opening, perk your ears up and take notes because you are going to get the gift of one person's hard earned wisdom which you will not find in books.

Our society worships youth.  And in my opinion, we have it all backwards.  It is those who have come before us, witnessed much, experienced more whom we should cherish and revere and learn from.  Very few will actually reinvent the wheel. I've witnessed listserv conversations where younger lawyers still very wet behind the ears on law and life take swipes at those who have paid their dues and given much without ever being asked. When you do that, you lose in ways you are too ignorant to understand.

I view our conversation as a gift.  Thank you, Jay.

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Comments

Kenan Farrell

I'm currently on my second pass through Mr. Foonberg's book (opening my own practice in the fall) and it really is a gift.

As for the worship of youth, I don't agree with respect to the legal profession. From Day 1, law students are overwhelmingly reverential of their professors. Judges are consistently held in the highest esteem. But with young associates being cast about like fungible items, is it any wonder that they would mistrust the partnership apparatus hovering over them? Or the not unlikely possibility that a few extra gray hairs could land you a client or a seminar engagement regardless of actual talents. I know your comment was directed towards society in general, but I wanted to emphasize that in OUR world, the legal profession, there is very little worship of youth. Additionally, nearly all young lawyers that I've encountered are very respectful and admiring of more experienced colleagues. People sometimes just act differently on the internet, so heated listserv comments aren't surprising.

 Susan Cartier Liebel

@Kenan, you are absolutely correct...I was referencing society as a whole when talking about worshiping of youth.

Many cultures revere those who've walked before us...our culture..not so much.

And on listservs anonymity (or self-proclaimed importance) allows for all manner of idiot to make foolish comments.

Jay Fleischman

Wait, it's a profession and NOT a business? Like most solo attorneys I read Foonberg's book cover to cover a number of times when I jumped into the deep end of the ocean. I think there's a lot of good in the book, but the perspective is decidedly out-of-touch. Running a law firm is just like running any other business, and denying that is a Pollyannaism to say the least.

I can be noble and professional, but if I can't manage the P&L then I'm going to need to close my doors pretty fast.

True, we have an ethical responsibility to our clients. But we must be profitable and focused on the bottom line or we will be unable to serve those clients that we choose to take on.

David Fuller

I'm inclined to agree with Jay Foonberg. Put it this way, a professional is always a business person, but a business person is not always a professional.

Indeed, I believe that a lot of the problems in BigLaw and in the law generally come from an emphasis on business acumen rather than professionalism, i.e. "New York to 190," etc. As a judge I know put it, "we are not butlers to business."

Ultimately, the law requires us to uphold the ends of the law, even if doing so is against our personal pecuniary interests. The ends of the law view is, and should continue to be, a centerpiece in writing on legal ethics and lawyer discipline. We have seen what the morality of the marketplace has done to investment banking and consumer lending.

Of course we must run our practices profitably, otherwise we would not practice. Still, if a situation arises in which there is a question of whether to serve the ends of the law or whether to serve your own business interests, the ends of the law must prevail. I'd rather struggle and uphold the ends of the law than become wealthy at the expense of my professional duty.

 Susan Cartier Liebel

@Jay it's not an either/or proposition. That's the basis of much of the discussion on this subject. Being a professional and running your practice efficiently and profitably are not mutually exclusive.

You have to be a good business person to run a truly successful practice. This is understood. However, not at the expense of professional responsibilities unique to being a lawyer.

Doing good does not preclude doing well. But doing well at the expense of doing good...that's the argument.

@David - very well said.

Corinne A. Tampas

Amen! Five years ago I was involved with a commercial condo owners association dispute. Not once did I hear the word "professional" spoken by the doctor or dentist owners. On the other hand, I have never heard that word, "professional", used so often; "I am a professional tax consultant", "I am a professional real estate broker", "I am a professional insurance agent", "I am a professional retailer and owner of grocery stores", blah, blah, blah.

I used to tell myself that these people were insecure and believed that if they tacked on the word "professional" to their occupation that somehow their point of view would be given greater weight even though I believed (and I still do) that everyone's opinion was important and no one's profession or occupation is better than the next person's. However, it really bothered me because these people were really in my face about being, well, professional.

So, I read your entry with a great deal of interest. I certainly wish that I had had that explanation regarding an oath years ago. At least it could have been my own little story that danced in my head when things got heated, because sometimes I need a private thought like that. Kinda like imagining everyone in the audience naked to overcome stage fright!


Moe.Levine

The law is a noble profession? Be serious. Is fixing traffic tickets noble? How about guilty pleas to 99.9% of all felonies or misdemeanors? Or, landlord tenant and collection dockets? Or taking sides between most partners in a failed marriage?

This is not noble; it is being a janitor for people who can't clean up their own messes. Great art gives one great insights into life and Michael Clayton very accurately portrayed what it is to be a lawyer and it wasn't noble.

If there is any nobility in the law, it is doing either very high level PI work or representing an innocent client charged with a truly serious crime. Jay never did either.

Christian M. Frank Fas

Moe:

Wait a minute...your best definition of our profession is a reference to a Hollywood movie?? And its director wrote the screenplay for The Devil's Advocate and Armaggedon?!?

Jeez...and here I thought you were going to quote Montesquieu or rant on the Social Contract.

Yes, sometimes I feel like a janitor cleaning up people's lives, but most of the time I feel like a VERY important cog in the whole machinery. In fact, sometimes I feel like a keystone, especially when I read comments like yours.

 Susan Cartier Liebel

@Moe I'm with Christine on the Michael Clayton reference.

However, that being said, isn't there nobility in protecting children during a nasty custody battle? Or defending the rights of an abused spouse? Being part of the everyday human condition which if handled poorly impacts all of us? (ie: welfare, social programs, etc.)

Aren't there victims of overzealous policemen, poorly calibrated radar machines, illegal evictions by merciless landlords...and I could go on.

Those who 'clean up' these messes, if done correctly or incorrectly directly impact you and me like stones rippling in a pond.

There is nobility in all of it even though we may not ourselves recognize it each day we go into the office.

You single out high end PI and the wrongly accused. That's your perspective to which you are entitled. I see things a little differently.

Corinne A. Tampas

Moe:

I agree with Christine and Susan. Whenever a criminal defense attorney defends a client, that attorney is really defending the rights given to every American by the US Constitution. That document is the envy of the entire world. It has inspired democracies. And, it is not up to you, or me, or the media to judge the merits of a case from afar.

If you have ever had the opportunity to sit on a jury, do it! Whether it be a criminal case or a civil case you will find that your fellow Americans take their charge very seriously. Most jurors walk into voir dire thinking that service is either a duty or punishment. Almost all jurors leave the courthouse after a verdict knowing what a privilege it is to have our legal system and form of government,

Moe.Levine

some one posted, "but most of the time I feel like a VERY important cog in the whole machinery."

This is the kind of arrogant narcisstic bs that sickens most people of lawyers. Go take 50 federal criminal appointments, put 50 people in jail for 20 years a pop for dumb dope and drug crimes, and come back and tell us how noble it is to be cog in the federal justice criminal machine.

the rests of the posts are all emotional responses, totally irrelevant to the proposition. So what that jurors take their duty seriously. That doesn't make either a lawyer or the profession noble. Bankers take their jobs seriously, are far more important to a society, but who says that banking is noble calling?

Nor does it matter whether the lawyers have done a good or a bad job in a case. Several noble economists have observed that the law has zero outputs and some have even argued that smart people should be prohibited from becoming lawyers, for they understand that you get the same result in a trial where each side has a bad lawyer as a trial where each side has a good lawyer. You get a decision, a dispute ended.

I notice that no one took up my basic point which remains that 99.9 % of the total time spent in the practice of law is not "noble"


Further, someone posted, "isn't there nobility in protecting children during a nasty custody battle? Or defending the rights of an abused spouse? Being part of the everyday human condition which if handled poorly impacts all of us? (ie: welfare, social programs, etc.)

Aren't there victims of overzealous policemen, poorly calibrated radar machines, illegal evictions by merciless landlors...and I could go on.

Seriously, you need to re-orient. The world is not a walking conspiracy and a tenant unable to pay the rent doesn't have a legal problem, nor is the landlord (who has to pay her mortgage, taxes, wages and benefits, and put food on their own table, merciless.

Last, the power of Michael Clayton it that is makes its point w/o being great art. That good entertainment could hit the nail so squarely shouts that more than a few who have posted hear need to re-think

 Susan Cartier Liebel

Moe, if you are a lawyer you need to leave the profession. If you are not a lawyer then you are the one who needs to re-orient. Clearly you are far removed from the 'human condition' and too involved with the media's portrayal of lawyers to understand the nobility, yes nobility, of this profession.

If you are going to use Michael Clayton why not also use Atticus Finch? Your selective choice of 'art' shows your clear lack of understanding and is more telling then anything else you write.

But sadly, you do represent a percentage of the population, one which we lawyers must deal with when you need us.

Chances are you won't have some world-changing PI case or be tried for a crime for which you are innocent. But you probably will need to write a will, buy a home or maybe dissolve your marriage. Hopefully, you will keep your contempt in check.

Dan

Great post.

When I was a young whippersnapper, I was working on a huge and very complicated case. I had been practicing maybe ten years and was working on the case with a 25+ lawyer whom I greatly respected. Our client was a very sophisticated local company who had used the name partner of our firm as its general counsel, until he pretty much retired around twenty years previously. We were facing a particularly troubling and complicated issue and the client suggested we bring "Fran" in to assist. I thought "what a waste of time, this guy has not been practicing for 20 years." Fran came in and listened to the facts for about ten minutes and then gave such a clear and right on answer as to how we should proceed that none of us even doubted that was the way to go, even though none of us had even thought of it.

I am not kidding when I say that one day cured me of any believe that older people cannot contribute. I am no longer at that firm, but I saw in the local bar news that Fran just turned 100 and I would not take any bet that says he is not still one of the top legal thinkers around.

Mark Merenda

I think the real distinction is as follows: You wear two hats. One is an attorney hat. As such, you take an oath, you're an officer of the court, you have a special status as a professional. Your other hat is that of a small business owner. Your business is called a law firm. It supplies legal services. The person wearing the attorney hat is an employee supplying work-product to the firm. He needs attorney skills. It's fine if he wants to think of the law as a profession. The person (the same person) wearing the business-owner hat needs business and entrepreneurial skills. He is not in a profession. He's in a business. The two skill sets are only incidentally related and are often quite antithetical.

Moe Levine

it is amazing how much you can reveal about someone when you challenge their basic line of propaganda.

I made a simple post, pointing out that 99.9% of what lawyers do is not noble and the host acts as if the sky is falling, with a string of ad hominem attacks, including the claim that one shouldn't be a lawyer unless they believed that the entire profession was, "noble."

Knowing of the great art, I ask Ms. Liebel, Why does the hearse horse snicker?

I am then told that someday I might need a will, admitting the very point I am making.

How is an attorney writing a will, "noble?" Necessary, useful, or helpful? Perhaps. Noble? NO, unless it is also noble for a real estate agent to write a sales contract on a house or for a sales person to write a contract for an order of plastic parts for a new consumer product.

Best regards

Moe

Susan Cartier Liebel

Moe, your hindsight is not 20/20. Reread all the comments.

You shared an opinion that you believe 99.9 percent of lawyers' services are not noble and decided those who commented were dodging your 'simple statement' and delivering you narcissistic bs in their disorientation. You claim Michael Clayton depicts real lawyers.

How can one seriously answer you? And why would they?

Moe Levine

Why one should answer my observation is self-evident. It goes dirctly to being truthful with one's self and others and being honest and moral.

You choose to use the word, "noble," attributing such to Jay Foonberg.

I simply asserted that word, which means "Having or showing qualities of high moral character, such as courage, generosity, or honor," has no application to 99.9 % of the work done by lawyers. I mentioned 2 areas where lawyers do noble work.

How can one answer me? Very simply, if I am not telling the truth about what lawyers actually do. Unhappily for you, I am tellng the truth. More than 99.9% of legal work is not noble. Drawing contracts, deeds, and wills, fixing traffic tickets, advising businesses how to fire employees or stop labor unions, defending insurance companies, pleading criminals to crimes is not noble work. It is necessary work, it can be mentally challenging, stressful, lots of things, but it is not noble.

One would think that attorneys who are taught to make careful factual distinctions could apply these distinctions with ease, but that is where the narcissitic bs comes in. It inflates ones ego to picture a tenant's lack of a job as an epic struggle against the greedy landlord, but the facts don't bear such out.

And, most importantly, even it is is true that one in 1000 such cases has some larger issue, any claim of nobility for the profession disappears when one considers that the landlord has an attorney, whom you have defined as not being noble at all.

That gets back to my point. The fact is that the lawyers are both sides are janitors, working to clean up a mess. The tenant has 99% of the time made mistakes in her or her life that result in a lack of funds to pay the rent and the landlord made mistakes, perhaps in ever renting to the tenant.

As a society we need these disputes resolved promptly and fairly, but doing such is not noble work

Susan Cartier Liebel

@Moe, you are twisting my scenarios.

First, I wrote 'an illegal conviction' so your whole discussion on landlord/tenant dispute missed a key word.

Second, you are more annoyed with those who defend rights even if it means a bad guy gets away.

The nobility comes from the oath. In order to even have the right to take the oath who have to be deemed of high moral character and honor. (Do some slip through the cracks? Sure and the media makes doubly sure everyone knows about it.)

You are passing judgment on the execution of laws and those who's job it is to defend or prosecute based upon those laws.

But we've been sworn to do so. Just because some of the tasks seem most mundane to you or others have tried to commoditize the functions doesn't diminish those who have earned the right to provide those services of their nobility.

Those who do this work take their oath very seriously.

Harry

I think it was easier to be "professional" in your law practice when you got 1.5% of the value of the property for a closing, 50% of referred PI cases (back before advertising when clients still sought referrals), and you billed based on a minimum fee schedule, which assured that everyone charged the same minimum fee. It was unethical to charge any less. This prevented cut throat competition and assured that everyone made a decent living. Consequently, you could make a living in less than 12 billable hours a day. You had the time and energy to be noble and professional and to do some low cost and pro bono work.

The billable hour and court decisions killed a lot of that. Meanwhile, the same courts that encouraged greater business "competition" among lawyers now whine about a decline in professionalism. It is easier to be graciously professional when every minute doesn't count. Now clients treat us like plumbers. Everyone wants the lowest possible fee. They want it cheap and fast. They all want to share their losses with you, but none of them want to pay a penny extra for results. I think what we're seeing now is the fruit of the effort to increase competition, improve efficiency, and reduce fees. Those are business concepts and not the concepts of a noble profession. Like any business we're now expected to appeal to "consumers." Consequently, the practice of law has become a business.

Susan Cartier Liebel

@Harry

Welcome to Build A Solo Practice. You make very astute observations. But my question is can't one maintain their role as professional as defined in the post while recognizing the stresses of a competitive marketplace which has evolved for one reason or the other?

I know it's kind of a tough question, but I'd like your thoughts.

Margaret

We can separate the practice of law from the business of law. Academically, that is. In practice, to choose to honor the concept of a profession may cause one to lose a competitive edge. it's a choice we all make, and not all of us make the same choice. That's why some readers question the existence of the law as a noble profession. It CAN be, on an individual basis; it is not universally true. I wonder if it ever way, or if that is our romantic projection on history...

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