MyShingle : Solo and Small Law Firm Management and Marketing

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. 

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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.

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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.

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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.

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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? 

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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?

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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!   

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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.

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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.   

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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. 

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I have to confess that when I initially heard about New York's proposed gag rule on attorney advertising, I suspected that it was just another way to perpetuate the biglaw/smallfirm double standard by targeting forms of advertising like websites and weblogs that have proven especially beneficial for small law firms.  And indeed, Dennis Kennedy fears that one consequence of the rules, which are draconian with respect to Internet marketing, will be to protect established practices from competition, as does Peter Boyd who dissects the problems with the rule, section by section.   Kevin O'Keefe fears that the rule will lead to micromanaging, which is also a problem for solos.

But now, having reviewed the rules and some of the websites and online ads of biglaw firms, Arent Fox (whose partner served on the rulemaking committee) and Paul Weiss, whose partner heads the NY State Bar, it appears that even these firms may run afoul of the new regulations.  For example, consider this photo at Arent Fox's website.  Doesn't this constitute a prohibited "reenactment of any events or scenes...that are not actual or authentic?" How about this page  of the website, which shows photos and lists the names of the five Arent Fox founders, even though they're not listed as attorneys with the firm.  Does this run afoul of the prohibition that an ad cannot otherwise imply that lawyers are associated in a firm? And what about this picture - doesn't it erroenously convey the impression that Arent lawyers are stunt pilots?

As for Paul Weiss, it recently issued a press release proclaiming that it is one of the top twenty best corporate law firms, based on a survey of corporate directors and general counsel.  Were some of those directors or counsel former clients?  And how is a rating from a magazine all that different from a prohibited client testimonial (except that a large firm is more likely to have the former rather than the latter).

I guess I shouldn't fool myself.  The proposed rules as drafted are bad enough.  But let's not kid ourselves as to who's going to be the subject of enforcement:  it's not going to be Arent, Fox or Paul Weiss.  But readers, it certainly could be you, if you solicit business in New York - and as a card carrying member of the New York Bar, it could be me (because there's no way that I'll put a disclaimer on my website). 

Unfortunately, most of my solo colleagues are far more risk averse (not to mention far less foolish) than I am.  (Of course, running a popular weblog tends to insulate you  from many stupid bar tricks).  Many of my solo colleagues may be deterred from running a weblog that provides substantive information on law or describing their practices in full detail for fear that they may run afoul of the bar restrictions.  And that's a huge loss, in part for these lawyers, but more so for the public that benefits tremendously from the wealth of information on legal matters that's offered by weblogs.

Update: For an excellent criticism of the "30 day rule" (which prohibits plaintiffs attorneys from contacting victims for 30 days after the incident, see these comments by Monroe Freedman at the Legal Ethics Forum.

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It's not often that practice areas like family law, primarily the province of solo and small law firms merit attention from a legal commentator of Dahlia Lithwick's stature.  But Lithwick tackles issues like the problems with an adversarial family court system and how well you really know your clients in her op-ed piece in the Washington Post entitled The Fall of the Father of the Year (6/18/06). 

Lithwick's article discusses the issues surrounding last week's shooting of Reno family court Judge Chuck Weller.  Darren Mack, the suspect, was involved in a divorce and custody dispute before Weller - and, he's also one of Lithwick's former clients, from her days as an attorney with a family law firm in Reno, Nevada.  Lithwick writes:

You may think this random connection would give me some insight, some ability to say, "He seemed like the nicest guy," or "I suspected something like this would happen." But neither statement is true. I wish I could say this gives me a new window into the perils of family court, or the special laws of physics that apply to a disintegrating family. But all I can say is that someone allegedly snapped, and I happen to have known him a little.

Still, for someone who says she has no special insights, Lithwick uses her experience representing Mack to describe the dilemmas that family law practitioners face every day:

The lawyers I worked for did everything in their power to help clients maintain perspective and foster sanity. But if you are the sort of person who desperately wants to use the courts to crush your opponent, you don't always hear that[...]

If I hadn't known Darren Mack, I'd be rounding toward a tidy conclusion about the increasing lethality of the attacks on the judiciary. But because I did know him, I am left with dozens of much harder questions: What did we miss, if indeed he did what he is suspected of doing? Were we such bad readers of human nature, or was he a perfectly normal client who just snapped? Is there some metric by which one can determine which of the thousands of people you think you know will snap?

Maybe someone like Darren Mack -- who spent much of the past decade in the family court system -- had no business being there. The more you want it and are willing to suffer for it, the greater the chance you'll be disappointed. Or maybe, and this is the worst possibility, while we thought we were helping our clients stabilize their fraught situations, we were somehow becoming their sherpas to madness.

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Jim Calloway has a great post on one of the unanswered (pun intended!) questions concerning solo practice:  what's the best system for answering the phone?  Jim's post summarizes the pros and cons of (a) outsourcing to a live answering service (uneven quality and costly); (b) using paid employee (who may be low paid and unmotivated) or (c) relying on voice mail (which some clients don't like).  Jim then directs readers to this entry at Ellen Freedman's blog, which summarizes a discussion of the topic amongst various law practice management professionals.

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I may be a solo who runs an established blog for other solos.  I'm an expert on my own practice and what works for me.  But I'm the first to admit that what works for me may not be optimal for others.  So if you want to get a broader perspective on matters like pricing and value billing, go over to Allison Shields' Legal Ease and see what she has to say about value billing and pricing.  In particular, I enjoyed Shields' piece on value billing because it addressed both sides and wasn't the typical "rah, rah" type of article that instigated my initial post.

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Each week, the ABA e-report has been featuring some of the runner up entries in its Ross Essay Contest.  One of this week's essays, Opening My Mouth by Elizabeth Streit caught my eye.  Streit doesn't write about solo practice; she's a government litigator.  But what she's written about how government practice transformed her life as a lawyer is equally true of solo practice.

From her account, Streit was a shy kid, "too afraid to open my mouth.  I was not a leader."  Streit's dad was a lawyer who encouraged his children to join him in the profession.  So after college, Streit gained admittance to a prestigious law school, joined a prestigious firm, but still never found passion in the law.  She had married before law school and began to think that once her children arrived, that she would abandon the profession.  But then, Streit experienced her aha moment:

But something happened to me as I continued to practice law. I started to open my mouth on behalf of clients. I left the prestigious law firm practice and became a government lawyer, where I found I represented interests I could become passionate about.

I felt the same way about solo practice that Streit felt about her government job. Solo practice gave me a chance to open my mouth on behalf of my clients, but more importantly, I started to open my mouth behalf of me.  Has solo practice transformed you and ignited a passion for law that you'd lost along the way - or never believed you had in you?  Let me know how, in the comments below.

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I don't usually post about products that I've not tested personally.  But this new file carrying strap, The Octopus which creator Jessica Hirsch brought to my attention, looks so neat and elegant that it seemed worth mentioning.  Basically, the Octopus is a more sophisticated version of a book strap, which is how some of my classmates back in elementary school carried their books in the days before backpacks were used (circa mid 1970s).  I'll be ordering one and will update this post when I learn more.

If you have an Octopus, please let us know about it in the comments below.

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This short blurb from the Nashville Business Journal (6/12/06) announces the formation of an all female law firm, the Harpeth Law Group, comprised of Kristi Dearwood, Caitlin Noe Moon and Christina Ferrell Daugherty.  The announcement states that the firm "is billing itself as a provider of "family-friendly" legal services."  And according to the website, the firm is one of the area's only all-woman firms.

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Yesterday brought two Supreme Court decisions granting last minute relief to two death row prisoners.  And equally important, at least one of the cases brought vindication to solo practitioners who handle death row appeals.  Clarence Hill, defendant in Hill v. McDonough (holding that a defendant can bring a Section 1983 challenge to lethal injection even after exhausting constitutional appeals in this criminal case) was represented by Todd Doss, a solo arguing for the first time at the Court.  (Stephen Kissinger, a federal public defender represented the defendant in House v. Bell).  So biglaw, what do you have to say about the quality of criminal defense before the Court now?   

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Here are three, terrific freebies for solos that have come through my email in the past week or so.  They are:

1.  Lisa Solomon of Question of Law and The Billable Hour has posted the free webinar that she organized a few weeks back, Blogging for Lawyers, featuring Grant Griffiths.  And state tuned for when yesterday's webinar, The Power of Branding and Image for Attorneys hits Lisa's site.

2.    RJ Robins of How to Make It Rain offers an e-book entitled "Ten Rainmaking Mistakes Solos Make" free for download here.  I read through this one and while it's more like an e-pamphlet than a book, there's some decent information.

3.  Via Peter Olson at Solo in Chicago is a link to Ernie the Attorney's post and accompanying PDF presentation on Managing a Paperless Office.

Of course, there's no such thing as a free lunch.  While these resources may all be free, can you free the time to take advantage of them? (By the way, if anyone has tips on what you do to make the time to follow up on these kinds of articles, e.g., reading them on the train to work or in bed at night, please share your ideas below).

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Sure, I don't like when the state bar grievance committees apply a double standard between biglaw and solos when it comes to lawyer discipline or ethics rules on networking.  And I understand when many ABA honchos are completely out of touch with solos' abilities or that biglaw attorneys on the NACDL Board who want to monopolize Supreme Court practice will denigrate solos' performance at the Court to force them out of the way.  I accept that many state bars, the ABA and even high profile pro bono interest groups are dominated by large law firms who endorse agendas that favor their own interests. 

But when it comes to judges buying into the double standard, well, that's another matter.  Yet that's what one federal judge did, as described in this article, Second Circuit Rejects Blended Rate for Solo's Work, though the judge was  reversed by the  Second Circuit.  (Anthony Lin, NYLJ 6/7/06). From the article:

Manhattan lawyer Edgar Pauk successfully represented James McDonald in a suit charging that the former longshoreman's union pension plan failed to properly calculate the years in which he accrued benefits.Pauk had requested $425 an hour for his work, but Southern District of New York Judges Naomi Reice Buchwald and Kevin P. Castel, who presided over different portions of the case, set respective hourly rates of $325 and $390.  The 2nd Circuit panel of Judges Guido Calabresi, Jose A. Cabranes and Richard C. Wesley, in McDonald v. Pension Plan, cv-05-1435, 1630, 1749, 4140, 4288, vacated Castel's award on the grounds that he inappropriately applied a blended rate.  Such a rate is intended to take into account the different billing rates of partners and associates within a firm, but the appeals court said it had never before seen a blended rate applied in the case of a solo practitioner[...]

There is simply no support for the proposition that a district court can decide what legal tasks could have been done by a hypothetical associate attorney working for or with Pauk in order to calculate a blended hourly rate of $390," the court said in its unsigned opinion.  The panel approved Buchwald's award and agreed with her reduction of Pauk's requested rate based on her finding that his performance "though effective, was less than stellar." The trial judge had found the lawyer frequently inefficient and "occasionally vexatious."The appeals court also noted that Buchwald felt it was "of great significance" that Pauk was a solo practitioner with lower overhead costs than a firm. 

Though the 2nd Circuit did not reject this finding, it cautioned in a footnote "that district courts should not treat an attorney's status as a solo practitioner as grounds for an automatic reduction in the reasonable hourly rate."

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You don't have to join an organized pro bono program or set a grand mission like getting rid of the billable hour to improve the practice of law.  Jennifer Sawday of the California Estate Planning Blog is changing the practice of law just by being in practice, by charging fair rates and doing a good deed for a couple ripped off by another attorney and giving in to a couple of hagglers because it wasn't going to make or break her.  Of course, much of kindness that Jennifer's posts describe are what many solos do everyday, without fanfare (post re: reception for biglaw pro bono efforts) or publicity or press releases, yet it's something that too often, our profession forgets.

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According to this post over at Larry Bodine's Professional Marketing Blog, at least one firm isn't following the conventional wisdom of charging what everyone else does - and they're making money in the process.  As Bodine describes, Wessels & Pautch, a small, employment defense firm offers unlimited phone consults for $50 a month.  Not surprisingly, many of these small phone calls eventually morph into full blown matters that W&P is then asked to handle.

How would this work for your practice?

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Most marketing gurus counsel lawyers not to compete on price.  So I wasn't surprised to see that advice at the core of this article by Susan Cartier-Liebel, To Solos:  Don't Discount Your Worth, Connecticut Law Tribune (June 5, 2006).  Personally, I disagree.  I see no way for a new solos to get a foot in the door except if they compete on price, and no way for former biglaw-turned-ownlaw attorneys to wrest cases from their old colleagues unless they include price as a selling point. 

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