MyShingle : Solo and Small Law Firm Management and Marketing

I've always been a smiling lawyer.  During the later round of my first year moot court competition (where I made it, out of 80 students, to the finals!), one of the judges told me that he appreciated my smile when I started my argument and since then, I've always smiled in court, to juries and even lawyers who I absolutely can't stand.  I smile in my website photo and other news photos (except one hideous picture that appeared in the ABA journal because the photographer told me that the Journal editors would prefer a serious shot).    I find the smile particularly effective with dour judges because it disarms them and I can take advantage without having to be particularly aggressive or rude.  And smiling forces you to feel happy even when you're not.

Turns out, my smiling may be good for business as well.  In this post at Start Up Nation (thanks, Lexthink), Joel Welsh encourages business owners to "hire the ones that smile."  I know that many clients might prefer a scowling, angry lawyer to a smiling one, but that's not necessarily the type of client who I want to attract.  I'd rather target those clients who want the smiling lawyer - me. 

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All of us solo and small firm lawyers have experience with those "dog" cases that drive us crazy and often lose us money in the process.  This article, Spotting the Losers, James McElhaney (ABA Journal June 2005) offers some ways to clear the duds off your desk - or pass off cases that may not be valuable to you to another firm that could profit from them.  But what I liked best about this article, was the conclusion.  Because even though so many of us have lost money off cases or been burned by difficult clients, the author eloquently reminds us that sometimes, we take a loser case because it's the right thing to do:

Finally, don't carry any of these ideas to excess. There are some law firms that have the reputation of taking only 'perfect' cases with wonderful clients who never act difficult and who always make a good impression with the judge and jury. Some of these firms never take on a hard case or represent an annoying client for any reason. They are lawyers who never know the satisfaction of having made a contribution to the development of the law, or never feel the pride of having given some of their time to make the world a little more fair.

Not every deserving case is a popular cause or earns a big fee," said Angus. "There are times when you need to take the albatross that walks in your office just because it's the right thing to do."

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Have you ever sat down and calculated how much it costs per hour to run your law office?  I haven't (though I know what my overhead and expenses are from my tax returns, just haven't reduced them to an hourly rate).  Yet it seems that most of us ought to know that number off the top of our heads given that we bill by the hour. 

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Via Matt Homann comes this very cool marketing tip:  set yourself up in you local coffee store for a designated hour where anyone can sit down and ask a question about your area of expertise.  And, as an added bonus, coffee for anyone in the store is on you for that hour.  (That is if your local bar doesn't consider a free coffee a way of unethically buying referrals!) Read more about this technique at Matt's website.  But what a terrific and inexpensive way to generate visibility and goodwill.

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When I put up this post about the ethics of collecting a profit on fees paid to contract attorneys, I didn't include my own thoughts because my views are mixed.

From an ethical perspective, I'm fairly certain there's no problem with the practice, so long as overall rates are reasonable.  In fact, the entire large law firm structure depends upon leveraging young associates who are paid salaries of around $125,000 and might generate billings of three times that ($200/hr billing rate x 2000 hour billable requirement, less any costs associated with training and benefits).  After all, you don't get to one billion dollars in revenues by billing associates out at cost.  In short, there's no way any bar association on this planet would criticize a model that enables large firms to profit.

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Sometimes I just know that I've been practicing solo too long.  One reason?  I've completely forgotten how to converse in "partner-ese," that obscure language used between partners and associates where associates must read between lines, jump through hoops and do everything else short of just asking direct and time saving questions.

Consider these encounters described in From Appealing to Scary:  The Zen of Partner Contact (Sharon Brooks, law.com 6/22/05).  In the first, an associate is called into the partner's office with a request to research whether a claim for breach of contract could  be brought in a certain state.  At that point, horror of horrors, the associate asked if there was a written record of negotiations for the contract so that he could research the issue more effectively.  Apparently, a substantive request for context for a research assignment which is ultimately fact dependent (one would think that issues like where negotiations took place or in what state they were initiated would be relevant to a question about jurisdiction for the suit) is a fatal faux pas in partner-ese.  Instead, associates should only respond with simple questions regarding when the assignment is due or the appropriate format for submission.

Another associate not fluent in partner-ese also embarrassed herself by having the gall to share her knowlege about a legal research topic that the partner assigned and which she'd happened to have researched for a moot court case during law school.  The associate's mistake here:  she did not realize that the partner himself had argued the seminal case on this issue and further, that the law had changed.  How awful to share your knowledge only to face correction by the partner!  And worse, think of the the time  that the associate saved (and all those foregone billables) by being corrected on the spot, instead of spending several hours getting up to speed on a matter that the partner already knows about!

Honestly, I had to read this article several times to figure out that it was serious and not intended in jest.  No wonder associates are so unhappy at law firms.  In addition to long hours on dreary, mundane projects, they have to master an absurd new language which doesn't facilitate communication and interaction but instead, hinders it.

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Are lawyers required to pass on cost savings from legal outsourcing (or any other cost savings measures to clients?  Rees Morrison considers this question, first raised in another article on outsourcing to India (Daniel Brook, Legal Affairs, May/June 2005 issue)  The article quotes Thomas Morgan, a law professor at GW as stating that bar association ethics rules require law firms to pass on to clients cost savings from outsourcing.

Like Morrison, I'm not familiar with the rule that Morgan mentions.  In fact, according to this piece by Lisa Solomon, an attorney specializing in providing outsourcing, the opposite is true:  most bars permit lawyers to charge a reasonable premimum or profit for legal research and writing in excess of the actual cost. 

If you outsource legal research, do you bill the costs dollar for dollar or take a mark up?  And what about outsourced paralegal or secretarial work?  Do you charge for that or roll it into overhead, just as many law firms roll the costs of permanent staff into overhead.  What's the most equitable -- and ethical -- result?

Update:  There's a discussion on this topic going on at David Giacalone's f/k/a and I've chimed in there, as has  Lisa Solomon.

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Fellow small firm lawyer and former solo, David Leffler takes readers on a trip in the Solo Time Machine (GPSolo Magazine - June 2005), revisiting key moments in the history of the Internet.  David recalls 1995 - the first year that he put an email address on his stationary (I put email on my business cards back in 1994) and how he began using email to deliver documents to clients rather than fax (email transmission became de rigeur for me in early 1997 when I started doing per diem work for a local attorney).  In 1997 and 1998, David wrote articles for the New York Law Journal on useful websites for lawyers and one piece on securities law was cited in a Senate subcommittee report.

Go and read David's piece to find out more about how the Internet changed the practice of law for him - and legal practice continues to evolve as new technologies emerge. 

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Pat Yevics, who heads the Maryland State Bar Asssociation's Law Office Management Assistance (LOMA) Program recently launched the LOMA blog, putting her in good company with law practice specialists Reid Trautz (DC) and Jim Calloway (OK).  The bars' law practice management offices are one of the best developments that I've seen to assist solo and small firm lawyers; those offices either didn't exist or were not as robust back in 1993 when I went solo.

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The musical baton and its five questions that I must answer have made their way to MyShingle, via my fellow bloggers and sezzers Stephen Terrell of Hoosier Lawyer and Bob Kraft of P.I.S.S.D.  Since I rarely blog about anything not law related, this baton gives me a chance to share more about myself, including some responses that you probably won't believe...

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OK, how is this for rational ethics?  As an attorney in Maryland or presumably in any state, I can start an ancillary business (let's call it AB) like investment management or a lobbying shop or an insurance business which will serve both my firm and other customers.  And presumably, because I own AB, any time a customer of AB needs a lawyer, AB's employees will recommend my firm and any time my client needs a service, I'll recommend AB.   Of course, it's likely that clients will shuffle back and forth between my firm and AB, but golly, that's just serendipitous.  Yes, as a lawyer in Maryland, I can engage in all of this, completely ethically, without concern about quid pro quo referrals  or conflict of interest.  I just can't join a networking group and get to know some of the other business people in my community because that would make me beholden to the others in the group which would irreperably compromise my independent judgment.

If someone can provide a rational explanation of this that doesn't involve a double standard for small firm practitioners and large firm attorneys, please post your comments below or send me a link to a post at your blog.

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I'll admit that there are many tasks currently handled by lawyers that a non-lawyer or pro se could take on just as competently.   At the same time, there are  certain  matters that a nonlawyer is bound to  screw  up,  often with  tragic  consequences,  as this article,  Paralegal Accused of Posing As Lawyer  (Dallas Morning News, 6/21/05) bears out.

The article describes how John Dejean former jailhouse "attorney representative" who started a successful paralegal business primarily helping convicts file legal motions wound up advising a client to speak with the police about a quadruple murder in which the client had served as a lookout and carried a gun.  Apparently, Dejean did not realize that his client's role in the crime meant that the state could do what it did, i.e., charge him with felony murder, a  capital crime, even if he was not the actual killer.   

So the next time you encounter a client who wonders why he can't handle a matter on his own or why you're charging so much, you might just pass along this article as a reminder that in many cases, the costs of not using a good lawyer far outweigh the costs of hiring one.

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The Supreme Court just issued a ruling in Rompilla v. Beard (see this link at SCOTUS blog for a good summary and links to the opinions) a case that I blogged about several months ago here.  In Rompilla, the Supreme Court reversed a death penalty ruling, finding that the Rompilla's defense attorneys were ineffective because they did not review Rompilla's court files which might have yielded evidence of mitigating circumstances that might have spared his life.  But, Rompilla's attorneys had interviewed their client and numerous family members who could not offer up any information on mitigating circumstances, which presumably lead the attorneys to conclude that none existed.

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Law Girl of On Firm Ground posts the second installment of her biglaw-small law comparison.  This time, the focus is on the differences in client contact between the two venues (essentially, client contact at one of those places is a myth, I'll leave it to you to figure out which one) and what Law Girl has learned as a result of spending time with clients.  Much of what Law Girl's learned as an associate at a small firm would also hold true for an attorney going solo, so her Biglaw/Small Law series is worth following.

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So, you've heard about this blog thing but you're still too overwhelmed by what it might take to reap the benefits.  After all, how can you possibly run a practice and read 700 blogs a day or set up a blog and commit to three daily posts?  Well, guess what - you don't have to.   This month's issue of GP Solo contains my article,  Get Your Blog Rolling where I offer a bunch of ideas on effortless shortcuts to benefit from blogs, either as a user or reader.  For example, as I point out, you don't necessarily need to start your own blog to generate Internet exposure - why not guest post at a blog or make a couple of comments.  Just those small measures will help enhance your search engine rankings. 

As for following blogs, you can track them with an aggregator or alternatively, search technorati every so often to see if a topic of interest is being discussed.  And you can also take advantage of bloggers' knowlege and generosity by participating in some of the "all request days" that they offer.

I realize that many serious bloggers advise that a blog can't succeed without multiple, regular postings or that you can't optimize the benefits of a blog without reading feed from dozens.  I disagree.   Whether it's blogging or exercise or saving money any other new habit one wants to acquire, I don't think you always need to go all out to realize the benefits.   Doing what you can is certainly better than doing nothing at all.

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For those who've sent me a website to be added to the list of "Other Shingles," I'm a little behind.  I hope to have the next batch up by the weekend.

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Stephen Albainy-Jenei  of Patent Baristas takes a skeptical look at whether small is the new big for law firms with a discussion of this recent post, Small Is the New Big, at Seth Godin's blog.  Here's a sampling from Godin's post:

Get Big Fast was the motto for startups, because big companies can go public and get more access to capital and use that capital to get even bigger. Big accounting firms were the place to go to get audited if you were a big company, because a big accounting firm could be trusted. Big law firms were the place to find the right lawyer, because big law firms were a one-stop shop.

And then small happened.

Enron (big) got audited by Andersen (big) and failed (big.) The World Trade Center was a target. TV advertising is collapsing so fast you can hear it. American Airlines (big) is getting creamed by Jet Blue (think small). BoingBoing (four people) has a readership growing a hundred times faster than the New Yorker (hundreds of people).

Big computers are silly. They use lots of power and are not nearly as efficient as properly networked Dell boxes (at least that's the way it works at Yahoo and Google). Big boom boxes are replaced by tiny ipod shuffles. (Yeah, I know big-screen tvs are the big thing. Can't be right all the time).

I'm writing this on a laptop at a skateboard park... that added wifi for parents. Because they wanted to. It took them a few minutes and $50. No big meetings, corporate policies or feasibility studies. They just did it.

Today, little companies often make more money than big companies. Little churches grow faster than worldwide ones. Little jets are way faster (door to door) than big ones.

And Seth adds:

A small law firm or accounting firm or ad agency is succeeding because they're good, not because they're big. So smart small companies are happy to hire them.

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This week, you can catch a bunch on my posts over at Law.com's Legal Blog Watch, where I'll be guest-blogging.  Of course, I'll be straying from my more limited solo and small firm beat to keep consistent Legal Blog Watch's goal of offering a sampling of what's happening at the law.com affiliate bloggers' sites.

What I find ironic about this gig, however, is that when I started MyShingle back in December 2002, I hoped to fill what I perceived as a void in the mainstream legal media (like law.com and National Law Journal publications) with respect to solo and small firm practice.  Three years later, many of these publications now offer special features and sections on solo and small firm biz - and here I am, maven of solo and small firm practice blogging for law.com.  And while I tend to agree, on some days anyway, that bloggers (particularly law bloggers) may be guilty of triumphalism, at the same time, I'm been practicing law long enough to know that this kind of opportunity would have never come my way but for blogging.

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Wouldn't you love a ruling like this one where the judge determines that you've underbilled and bumps your fees up fourfold? 

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This article, Mitchell reprimanded by state Supreme Court, Tim Smith, Greenvill News (6/6/05) reports on a decision by the South Carolina Supreme Court publicly reprimanding attorney Theo Mitchell for using the law firm name "Mitchell and Associates" notwithstanding that he he was the sole lawyer in his firm licensed in the state.  Mitchell had contended that the use of the phrase "and Associates" was appropriate because it referred to other lawyers in Greenville who help him in specialty cases such as real estate and foreclosure matters.  But the court rejected that argument because one of the lawyers with whom he associated was not licensed in South Carolina.

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This article, Focus on Families, Michael McCord, Sea Coast On Line (5/20/05) contains an interview of Susan Denenberg, a New Hampshire attorney who's been solo for the bulk of her twenty five year career.  Denenberg expresses views that most of us solos understand:

Denenberg told the Interview that she realized early on that she was less interested in criminal law and litigation and decided to carve a niche for herself in the less-glamorous sectors of the law such as wills and trusts, probate and guardianships, and family law in general.  She says her no-frills, one-person office in downtown Portsmouth reflects her desire to focus on work that brings some peace of mind to her clients.

The Interview: Why did you choose to go out on your own and not be part of a larger law firm?

Susan Denenberg: I worked briefly (in a firm), but I found that my time wasn't my own, which is why I decided to work on my own. I liked being able to make my own schedule and to spend more time with clients. The last few years I've been able to stay ... at home (a lot) while raising a young child (her 7-year-old adopted son Nicolas). ... The difficulty is that I have no one to back me up, and many people don't know what it's like to be self-employed.

You have to deal with things like not having your number listed in one of the phone books. But I like what I've been able to do to give more personal service by traveling to my clients, if necessary.

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As discussed here, most of my fellow bloggers have already signed on in support of Ben Cowgill, a solo specializing in legal ethics in Kentucky.  Ben's been dealing with some archane Kentucky ethics laws that, among other things, consider blogs advertising - and charge a $50 fee to review any change to an ad.  As Ben describes, the impact of the Kentucky rule would make blogging financially infeasible since he'd be paying $50 a post.

My colleagues have criticized the Kentucky rule on grounds such as First Amendment issues or deterring the educational role that blogs serve.  Predictably, I oppose the rule because of the disparate impact that it has on solos.  As I just wrote here, it's solos and small firms who are leading the way with weblogs and reaping their benefits, in part because of the simplicity and low cost of blogs.  When the bars take away this option from us - or make it prohibitively expensive, and the bars impact our bottom line.  Moreover, larger firms aren't similarly affected, because they have other means available to obtain exposure and web presence (in fact, many could probably afford to pay the $50-per-post fee!)

So,to the Kentucky bar, I urge - don't pull a Maryland.   Balance the benefits that the bar's present rule brings to ethics (none that I can see) against the adverse impact of the policy on the solo and small firm bar members who serve the majority of individuals and small businesses as well as the harm to the public which will be deprived of the  resources that blogs offer (especially a blog as robust as Ben's).   

Update:  For a full list of everyone who's commented so far, visit this link at David Giacalone's f/k/a.

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Not surprisingly, I've always believed that solo and small firm lawyers have been the ground breakers of our profession, from billing practices to advertising to technology.  And now, as this article, Lawyers Leap Into Blogosphere acknowleges, we're setting the pace in blogging as well.  As the article state:

So far, most blogs have been published by solo or small-firm lawyers. But large firms such as Shepherd Mullin are quickly jumping on the blogwagon.

The article also describes why blogs are a better and more cost effective means of achieving presence on the web than a conventional website.

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SmallFirm Business columnist Kim Fanady writes that it's  cool to be solo, while Susan Cartier-Liebel laments that law school doesn't teach students about the option solo practice.  Which all makes sense, because since when did law schools ever teach how to be cool?

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I've just added another dozen or so new names to the list of "Other Shingles."  It sometimes takes some time for them to appear.  But if you've submitted your name and don't see it on the list by tomorrow evening, shoot me another email with your information.  Also, please let me know if there are errors in your link. 

Don't feel obligated to link to MyShingle, particularly if your website or weblog is for purely professional matters that don't relate to solo practice.  Just reach out to another solo on the list. 

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According to this Press Release of May 25, 2005 by legal placement agency Robert Half, 93 percent of lawyers polled said that they would not establish a law firm even if they had the necessary capital.   OK, I'm biased, but frankly, I don't believe the survey at all.  Here are some of the problems I see.

First, according to the press release, lawyers were asked "If you had the necessary capital, would you start your own law firm."  93 percent of respondents said no, up from 84 percent in 2002 and 78 percent in 1997.   To begin, I wonder about the phrasing of the question.   If attorneys "had the necessary capital," it's likely they'd decide to do something that's not legally related at all - or to stop work entirely.  The poll might have value if attorneys were asked to choose between starting their own firm and continuing in legal employment.  In short, the poll does not inform as to how solo practice compares to other jobs in the legal profession but rather, that it's not a top choice against many other potential career and business opportunities.

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Thanks to David Giacalone of f/k/a for this post on Lowell Komie's fiction about law practice, including what it's like to be a solo (see this one too).  David also quotes from Komie and his apparently mixed feelings about whether a solo practitioner is truly "free." Consider these two views expressed by Komie in an interview and story, respectively:

"If I had it to do over again, I would probably still choose the law as my profession. . . .   My biggest satisfaction in being a lawyer is being my own 'boss.'  I have freedom, as a sole practitioner, to pretty much come and go as I please.  It took me many years to achieve this freedom and I survived s everal "partnerships" where I was a slave to the "time sheet" and to the senior partners in these associations. I should have gone off on my own earlier, but I've been alone now for perhaps 20 years."

[A] solo practitioner is relatively free. But you're never really free from the pressures of money or the demands of clients; the freedom really is a relative concept. If you're worried about paying your office rent, you're hardly in the mood to debate the relativity of freedom. Also, if you have become tyrannized by irrational clients, you're not on your way to becoming a Philosopher King."

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How many times have you taken a seat next to an anonymous soul in the courtroom or CLE seminar, averted your eyes and opened up your Palm Pilot or newspaper to entertain yourself while waiting for the session to start?  I've done that more times than I should, but I won't be doing it anymore.  Yes, that person next to me could be dullard or a jerk.  But he or she could also be my next big break, just like the older gentleman who Bob Woodward struck up a conversation with in a White House waiting room back in 1970 turned out to be for him (from Woodward's piece How Mark Felt Became Deepthroat, Wash Post, 6/2/05) (long excerpt follows, then my comments):

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This  article (Texas Lawyer, 6/1/05) reports on an online resource for starting a law firm that includes articles, manuals, guides - and even a place to purchase books on starting a practice.  No, the article's not reporting on MyShingle or our On Line Guide which has been up and running since December 2002 (with a brief gap from November 2004 until earlier this month) even though the program sounds suspiciously similar.  Instead, it's about the Texas Bar's online web resource for starting a law firm.  Congratulations to the Texas Bar for bringing this resource online and doing what we at MyShingle have been doing for almost three years. 

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Blogger Stuart Levine of the always first rate Tax and Business Law Blog has a provocative post on the  Maryland Disciplinary Committee's Mechanical Ethics.  In the post, Levine offers several examples of how the Maryland committee ignores technologic developments that facilitate the practice of law and "regularly disregards the economic consequences of its decisions." 

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Janell Grenier a solo who writes both Benefits Blog and Erisa Blog has let me know that the Department of Labor has included her blogs as well as others in its resource list, as she describes in this post.  As Janell has suggested (and I concur), this federal recognition of blogs, particularly those operated by solos, is "an amazing development 

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