MyShingle : Solo and Small Law Firm Management and Marketing

Not to draw further attention to the Paul Hastings associate, Shiyung Oh's termination, but I'm fascinated by the new information about life at large firms that's emerging as a result of the story.  For example,  the Wall Street Journal obtained a copy of Oh's review, which showed that Oh excelled at her work, but which also contains some interesting tidbits about law firm life.

For example - Oh graduated law school in 1998, and worked as a litigator. However, on the last page of her review, there's a comment that

Opportunities should be sought for her to become involved in an arbitration and she should get into court if at all possible.

(Oh's bio says that she did assist in "preparing and arguing motions")  Can you imagine working as a litigator for ten years and rarely making it into court?  Most solos are able to find an opportunity at a court room or a hearing within a year of starting a practice.

I also noticed that Oh was graded as "met expectations" for client development.  That's not surprising; apparently, she was so overworked that she didn't have time to go engage in more business development.  And that's a problem for most lawyers, us solos included:  finding the time to always hunt for new business, even as we're churning out work for paying clients.  

However, most of us solos do find ways to do this - either by setting aside time for business development, outsourcing some marketing tasks or administrative tasks - because we realize that our firm depends upon  a constant flow of new business for our  livelihood.  I'm not sure that many large firm associates recognize the importance of business development.  But what's worse is that  their superiors aren't doing a very good job about helping them to build the business that is vital both to their own futures, and the future of their law firm. 

Ironically, the one tangible suggestion to Oh in her review is that she check her record keeping accuracy to make sure that she's not "unwittingly" cutting her time.  Which about says it all:  firms are more concerned about associates as "billing machines" than anything else.

To those associates who want to change biglaw, more power to them.  But maybe it's about time that they consider starting their own.

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In this earlier post, I criticized a Paul Hastings associates for outing the her firm for the circumstances surrounding her firing.  I agreed that the firm acted boorishly, but I didn't believe that was anything new - and felt that the associate may have burned bridges and harmed her chances for future opportunities. And now, I'm happy, albeit embarrassed, to admit that I was wrong on a few counts.

The comments to my post and the here and here provided more information and also lead me to reconsider initial position.  Originally, I'd thought that  the associate expressed her views about the firing out of vengeance or anger.  However, her motive was to help associates laid off for economic reasons avoid the same self-doubt and loss of self-esteem that she herself had faced.  And it's ironic that I missed this intent completely - given that in my book, Solo by Choice, I devoted an entire sidebar to discussing my own firing for the same reason.  I wanted people to know that even when you're fired, it doesn't mean that you lack ability and won't find more success at another job.

However, more importantly, what I've also learned from the post and the blogosphere is that in today's internet world, even in burning bridges, you can create new opportunities.   Happily, the associate has received an outpouring of support who are willing to help her locate new employment - and that probably would not have happened had she not come forward.  And now that she's made herself available for interview, her firm is stuck in the uneviable position of remaining silent and letting its reputation take a hit.  I have to admit that after all this time of working outside of law firms,  I still underestimate how much pent up frustration and resentment exists against large law firms.   And that after all of this time blogging, I still don't always fully appreciate the capacity that the Internet offers us for constant reinvention. 

Still, this recent story shouldn't serve as license to go hog-wild when you're let go from a job.  As I said, initially I was confused about the associate's motive because I didn't have the whole story - so if you're going to send a message to your firm, try to be clear about the intent so the more obtuse of us out here will understand your position.  Several years ago, Denise Howell gracefully discussed her termination by her firm in this post which seemed to strike the right chord.  Finally, good luck to Shiyung Oh in taking advantage of the opportunities that lie ahead.

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Update (5/10/08) - I have changed my position on this and updated it here.

Update (5/7/08) - a commenter points out that the associate did not send the memo to Above the Law, but instead, that it was circulated by another attorney.  This makes the story more unfortunate, because the associate may not have wanted so much widespread publicity.  On the other hand, in an Internet Age, most of us have to assume that any inflammatory emails that we send are destined for broader publication. 

Make no mistake, mega-law firm Paul Hastings acted insensitively, boorishly - and possibly even unlawfully - in terminating this associate six days after she suffered a miscarriage and then pretending that the firing was merit based.   But by publicly venting about about her termination at the heavily trafficked Above the Law website, the associate made her own situation far worse than the firm that let her go.  Here's why.

According to its website, Paul Hastings has 1200 lawyers, some of whom might have tried to help this associate find a new job.  Some might have sent her referrals had she gone to another law firm or started her own, thus helping her build a porfolio of business which could advance her career.   And while the work might have come because of a belief in her merit or out of guilt for having done her wrong, what's the difference?  In any event, this associate will never find out what could have been, because she burned those contacts with her incendiary post.

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When I started this blog, to read the mainstream legal media, you'd have thought that solos were the only lawyers to ever miss deadlines, violate ethics rules or commit malpractice. But I've always believed that all lawyers, from those at ginormous firms to those who practice alone, are all equally prone to making mistakes and committing malpractice. And my hunch is borne out by this article that I blogged about over at Legal Blogwatch that discusses the types of malpractice acts committed by large and small firm attorneys. The good news? Missed deadlines, once a common basis for malpractice claims against solos, are no longer as much of a problem with the advent of cheap computerized calendar systems. Now, most solos face claims for lack of competence in areas beyond their expertise. But as I wrote in my other post, I expect that with blogging and social networking, competence claims will be reduced as well, either because lawyers will educate themselves on other practice areas through blogs, or build relationships with lawyers in different practice areas with whom they can affiliate on a case without losing the client.

For biglaw, I'm not as hopeful. Increased rates means that clients are more demanding about results; they don't want Chevy service at Ferrari rates. And multiple mergers can give rise to conflicts, and rather than letting a client leave, firms will either ignore conflicts or try to find ways to keep clients with diverse interests - which can lead to malpractice actions if a case goes south.

Of course, big firm malpractice isn't something about which we solos should gloat. Increased malpractice actions means higher premiums for all of us, regardless of size.

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Thanks to a lemon of a credit market, associates at McKee Nelsonhave the opportunity to make a huge vat of life-changing lemonade. Above the Law's David Lat is reporting here that NY/DC based McKee Nelson, in an effort to avoid economically-induced, forced associate layoffs, is offering associates two options: (1) a full bonus, plus four months pay to anyone willing to leave the firm voluntarily or (2) a full bonus plus a year's sabbatical at 40 percent of the $160,000 salary. Option 2 carries two caveats; first, the firm cannot guarantee employment at the end of the year and second, the firm wants associates to use the sabbatical to "make the world a better place."

Lat suggests that associates use the time to fulfill their dreams of finishing a novel, or studying painting. But I've got a better idea: what about starting your own law firm and becoming the lawyer you always wanted to be?

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I'm not sure whether any of you remember the TV show LA Law . Sometime in the second or third season, the firm's young associate, Abby, was told that she wasn't partnership material so she left to start her own criminal defense practice. A year or so later, Abby had established her reputation as a trial lawyer, and the firm that had once spurned her lured her back (though I don't remember if she became a partner or merely collected a higher salary). Though I watched those episodes before I ever started my own practice, the concept of leaving a firm to build your skills and credentials and then return later, on your own terms struck me as eminently smart.

Back here, I posted on how Supreme Court solo specialist Tom Goldstein brought his practice to biglaw firm Akin Gump - after he'd been on his own for five years and argued more than a dozen cases at the Court. And today, I saw this Press Release about Ely Goldin, a former solo specializing in issues related to the business needs of the Russian immigrant community, who was named partner at Fox Rothschild.

When you start a firm, you may dream of staying small...or building your own empire. But solo practice isn't just an end in itself, it can also be viewed as a phase of your career during which you build skills and increase your value. Making partner after toiling as an associate at a large firm is always a risk. Is it really any more risky to try to make partner after building your own practice?

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I was looking through some of these relatively new books on getting ahead in business and entrepreneurship that Marci Alboher reviewed in her Careers Column for the NY Times. (If you recall, I reviewed Marci's book, One Person, Multiple Careers back here in February). What struck me about these three books - Anti 9 to 5 Guide: Practical Advice for Women Who Think Outside the Cube; The Parentpreneur Edge: What Parenting Teaches About Building A Successful Business ; and Grindhopping: Building A Rewarding Career Without Paying Your Dues - is that not only do they each have their own website (probably di rigeur for most new titles but they are all authored by women who are pushing the concept of entrepreneurship and jumping off the traditional career ladder as a way for women to get ahead. Contrast that "go get 'em," risk-taking mentality with the initiatives within the legal profession for advancement by women at a law firm - like begging for flex time or waiting for "the firm" to come up with ways to help women network.

All of this made me wonder whether women seeking equality at law firms are behind the times instead of on the cutting edge. Because if these books are any reflection of what's happening in the business context, it seems that in order for women to succeed, they need to break the rules, not follow them and make their own rules instead of forcing others to change theirs.

For a previous, related post on a similar topic, see And where were the women solos?

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It's difficult to fully respond to an article like this one,
The Snark: Flying solothat discusses the drawbacks of solo practice because I can't decide whether the author is trying to be funny or is truly pathetic, and pathetically uninformed.

Basically, the article is intended to discourage unhappy associates from making the mistake of starting their own firms. Fair enough. Leaping from biglaw to yourlaw is a major step, one that shouldn't be taken lightly. In fact, if an associate left a large firm to open his own shop and didn't feel apprehensive, I'd be worried that he hand'nt given much thought to the move.

But this article goes beyond highlighting some of the drawbacks of solo practice: it screams about them, loud and clear. Unfortunately, the article is rife with the sorts of stereotypes that I'd assumed that my blog and at least a dozen other solo practice related blogs had put to rest. Consider a few:

Tech Support From the article: But when you go to log in to your new laptop, and it can?t detect your wireless Internet because your router is improperly configured, you can?t just dial the IT Hotline folks, who will solve your problem in five minutes or rush up to your office with a new computer.
The truth: Hello?! Ever hear of outsourcing? Many solos outsource tech support functions. And computers are so inexpensive, that they often have two machines, so that if one goes down, they can keep working.

Client Developemnt From the article: "But without partners to delegate document reviews, memos and revisions to contracts, you?re on your own to find clients and convince them that your skills are worth your freshly discounted $175 rate: Big Firm Lawyer, Small Firm Price!? But convincing people you?re worth that rate is harder when all knowledge and networking and rainmaking must come from you alone. No more team for you."
The truth: When did the firm team ever try to sell anyone's experience but that of the senior partner?

Getting Information From the article: "If a client called with some random question, one little firmwide email later you had the answer." Apparently, this author has never heard of Solosezwhere a network of 2000 solos can find a response just as quickly as a colleague at biglaw - and they won't bill you for it!

Practice AreasFrom the article: So when your old Big Firm clients don?t follow you and hire you to draft their employee handbooks anymore?your particular sub-specialty in the Big Firm days?you better quickly learn how to draft a will, apply for a trademark, and cross-examine a cop on the calibration of the Breathalyzer 2000. The truth: More and more clients are leaving biglaw to for smaller firms because of poor client service and bloated fees. And guess what? Lots of lawyers actually want time in a court room and before a jury - it's experience many so-called litigators at large firms don't have.

Getting PaidThis is the most hilarious of all. From the article: The same is true when you try to collect your own fees from your new clients. Sadly, your letterhead doesn?t scream, ?I Am Part of a Firm of 1,000 Lawyers Who Will Hunt You Down Until You Pay.?" The truth: Hello? Ever heard of money up front? Evergreen retainers? Withdrawing if clients don't pay? Is this Cog-Author really a lawyer?

There are plenty of legitimate reasons to stay at a large firm. Maybe you're at a point in your life where you'd really be struggling without the money and fear that you'll risk your large salary if you leave. Maybe you've finally found a comfort spot after a bumpy ride through law school and other jobs. Maybe you truly enjoy working on complex pieces of a case with other people and don't mind the long hours. I don't denigrate the choices that biglaw attorneys make. But you've got to be honest with yourself - and that's something this article isn't. It's one big, sad and uninformed rationalization of why lawyers at large firms should suck up the downside of large firm life, to toil in obscurity and loan your talent for the rest of your life when you should be owning it instead.

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A while back, I posed the question whether women at large firms have some kind of duty to rescue biglaw and save it from becoming the exclusive domain of white men. Well, here's an article, Women Leaven which suggests that many women aren't doing that. Instead, they're leaving law firms in droves for greener pastures, including starting their own firms. Consider Mae O'Malley, who started her own contract law practice, and lined up so much work that now she's placing other attorneys - to the tune of hundreds of thousands of dollars in revenue a year. From the article:

People were always asking San Francisco attorney Mae O'Malley how she lined up so much contract legal work as she juggled continuing her law career and raising three children. Her secret: As a former in-house counsel, she had built up a clientele, including Google Inc., and was ready for solo work after her third child was born. Last year, O'Malley, 34, created a company built on her strategy, giving her the opportunity to share the trick with the many other women who have asked about it. She opened Paragon Legal Group in September, and already has 20 lawyers working for her on either a full-time or part-time basis, 90% of whom are women. The attorneys make as much as $175 per hour and she expects the San Francisco-based company will have $1 million in revenue this year.
"We have several women who are leaving firms and coming to us," O'Malley said. "We allow them to continue to practice with challenging assignments on a much more flexible basis."

So...should women stay at firms that don't accomodate their families - or leave? I think the answer is pretty clear.

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At the Ms. JD conference that I attended last week, one woman responded to various remarks on the benefits of starting a firm (by some of us troublemakers in the picture) by saying something to the effect that "Starting a firm is all well and good, but if everyone flees biglaw life, firms will be left stranded as the last bastions of male dominated hierarchy." That comment has been bearing heavily in my mind since, making me wonder whether lawyers have an obligation to fix biglaw.

In fact, from what I gleaned from Ms. JD, part of its mission is to ensure that female lawyers are represented in the upper echelon, power branches of the legal profession, such as the judiciary and biglaw. In other words, at least part of Ms. JD's goals is to help women with fight, not flight. And as I posted here at Legal Blogwatch, another group, Students Building a Better Legal Profession just formed, with a mission of changing the modern law firm business model to make it more sustainable and profitable and also allow for a more balanced lifestyle. I support these students and wish them the best. I'm impressed that they're taking charge of their future and that they're optimistic enough to believe they can change it. That passion will serve them well whether they succeed or not. And in fact, back when I was a student, I would have done the same - and indeed, in some cases, I did. But now, I'd rather just practice law than fight or rescue a system that's comprised of lawyers who ought to be smart enough and savvy enough to save themselves if indeed the system is failing (and I'm not convinced we're at that point).

What's your view? Are these students on the right track in trying to change biglaw from within? Or if you don't like how biglaw works, should you choose another option?

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One of the unintended consquences of the expansion of large law firms is that this trend may drive more lawyers to start their own firms. Think about it - though large firms hope that increased size will foster economies of scale and result in savings, there's still a whole lot of overhead involved in running a big firm. So to increase profits, firms will cut non-producing partners from the ranks and raise hourly rates.

So what's a lawyer to do when his clients can no longer afford him? Most of the conventional wisdom that I see here on the web would counsel lawyers in this position to cut clients who can't pay and raise rates even more as proof of value. Fortunately, most lawyers, myself included, don't buy that logic; we realize that there's a market out there for rates that are lower than market but nonetheless substantial enough to make big profits. And that seems to have been the motivation for Simon Bloom, a former attorney at Biglaw firm Powell Goldstein, who just put up a shingle, according to this article, Powell Goldstein Lawyer Steps Out to Open His Own Firm (3/15/07).

Listen to what Goldstein had to say:

"It's always been a dream of mine to go out on my own and offer my services to a wider market," said Bloom, 35, of his decision to open his own firm. He had practiced at Powell Goldstein since 1997. He explained that big-firm rates were pricing him out of what he sees as a "huge middle market."
He said that at Powell Goldstein he billed clients $385 an hour, adding that his rate there was about to increase to $405 an hour. "Only the Fortune 1000 could afford my rates -- and there are only so many of those clients to go around that have real estate issues," he said. His new rate is $295. "If you want a Powell Goldstein-quality trial lawyer, you're not going to get a better deal," he said.

My thoughts exactly.

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Imagine that your law firm issues the following Request for Proposals:

Busy solo practitioner seeking large firm to partner on pro bono matters for small, walk in clients with no funds to retain an attorney at full rates.  Firm must turn these clients down in the absence of pro bono support.  Matters include messy family law and custody battles, eviction proceedings, Fair Debt Collection Act matters, bankruptcy and lawsuits against small business without insurance coverage.  Benefits include court time before sometimes unqualified, nasty judges, (as opposed to civilized federal practice) and learning to prioritize issues, cut corners due to cost constraints and practice law at less than your full ability due to lack of resources.   

Now honestly, do you think you'd receive even a single response?  Yet when large corporation Intel posted an RFP for lawyers to partner on pro bono firms, biglaw came running, according to this article, Intel Recruits Firms for Pro Bono Partnering.  But don't think for even a second that the firms had thoughts of winning a plum client through working side by side with Intel lawyers on pro bono matters:

Similarly, Nixon Peabody pro bono partner Stacey Slater said her firm was motivated by the opportunity to do a good deed, not the chance of winning a new client. "That's not at all why we're doing this," she said. "This partnership will help increase pro bono on both ends."

Do these people even believe what they are saying?

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According to this article, Law school to simulate big-firm environment, University of Detroit Mercy School of Law (2/5/07) will require all third year students to participate in a new Law Firm Program, described in the article as "a series of courses that simulates big-firm lawyering."  The course has been developed with input from large firm lawyers and is intended to respond to the lack of skills training in law school. 

Now, you might think that I object to the program because it teaches about large firm practice, rather than solo practice.  And while I do believe that a school that offers a course on large firm practice, should also have a comparable course work on solo, government and public interest practice, that's no my main criticism.  First, I don't agree with making a course on law firm practice - either for big firms or small firms - mandatory.  While students should have some skills training, they should have the flexibility to choose what skills they want to develop.  Some students may want to focus on trial advocacy or appellate clinics, others may want to learn to draft family law documents.  They shouldn't be required to take a class on what it's like to work at a firm that doesn't interest them or that may have limited value (since every place you work is different). 

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