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April 2005

The Independent Practitioner

Carolyn Elefant of MyShingle web log fame (devoted to encouraging practitioners to abandon partnerships in favor of what has traditionally been referred to as solo practice) posted about what should we call practitioners who are not in partnership-based law firm.

Her response to my post yesterday goes to show how far ahead of me she is on this journey into a non-partnership-based practice.  She offers this insight from her personal experience:

As I posted in GAL's comments, when I started my firm, I referred to myself as an independent practitioner.  These days, when asked what I do, I typically say that I have my own law firm - though I might say that I work for myself. 

What can I say.  I love it. An independent practitioner sends all the right connotations and provides a nice contrast to "partnerships."  One of the benefits of being a solo is that you truly are independent of the influences which inevitably interfere with the duty to the client. Partnerships end up being about the partners far more than the clients.  The partnership business model becomes and end in and of itself.  As importantly, the word "independent" does not suggest "alone." 

Solos exercises independent judgment, independent thinking and are in a much better position to offer independent advice to clients.  In fact, the disciplinary rules and ethical considerations which speak to the issue of duties to the client govern conflicts of interest and seek to ensure that lawyers exercise their best judgment on behalf of each client, free from all competing or conflicting influences.

The ABA Model Rules of Professional Conduct (2004) note that a Lawyer's duty to their client includes that of advisor.  A lawyer's duty as an advisor is defined as follows:

Rule 2.1 Advisor

In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client's situation.

Thanks again for your insights and wisdom Carolyn .  It is no wonder you are featured in JD Bliss "Success Story: Carolyn Elefant: How to Go Solo." As always, you are a true inspiration.

Solo Means Alone; I am Not Alone …

As many of you already know, I have taken issue with the term ”solo” for practitioners who do not practice in a partnership setting.  Solo has the negative connotation of being alone.  When I was working in a partnership, I had no more resources than I have now.  In fact, I arguably have more resources now, since I can easily look outside the walls of my own firm for answers to important questions.  Finding the most knowledgeable person, rather than the most knowledgably person in your own firm, is liberating. 

With email list services organized by practice areas and a growing number of legal blogs providing rich vertical content, any attorney has a variety of methods to identify issues and solve legal problems.  There is no competitive disadvantage for attorneys who avoid the partnership model of legal services.

So what should we call practitioners who are not in partnership-based law firm, if not solo-practitioners?  Maybe we should simply reject the solo label and simply reject distinguishing ourselves at all.  We are lawyers.  We are law firms. This is an issue I will be thinking about over the next months. I would welcome your suggestions.

Thinking About Every Minute Of Every Day

One of the advantages of a contingency fee lawyer is that they rarely think of their practice in terms of hourly time.   Most do not keep time sheets at all.  I have worked in both settings.  For the unmotivated, the billing sheet provides a steady task-master for the attorney, ensuring that they stay focused activities which allow them to bill client files.  A contingency fee lawyer simply does what is required for the case.  Motivation is compelled by the fact that no recovery means no pay.  In many ways, a contingency fee lawyer’s interest is tied directly to the client’s interest.  They are both in the boat together.

As I break the ties of 5 years working in an aggressive hourly environment, I look forward to shedding the habits of an hourly lifestyle where every minute doing something with your family, your friends or simply tending to your own life is not equated with lost profits.

Howard Roark Law Firm

Remember when Roark went to trial to defend his destruction of the Stoddard Temple?  He won during jury selection be choosing jurors who believed that society had no right to the competence of any man.  I wish Ayn Rand would have made Howard a lawyer.  I would have loved to see how he created a perfect professional services law firm.  What would he have thought of LexThink?

Greatest American Lawyer Revealed

The GAL is an ideal. It is an aspiration to the professional standards which must become, at a minimum, part of the discussion.  Currently, such standards are considered foolish idealism.  The real crime is that such standards are considered idealism as opposed to capitalism.   The GAL does not aspire to altruism.  Neither does the GAL feel the need to give away legal services.  GAL believes in capitalism as originally intended; value paid for value provided.

One thing is for certain, the current iteration of the hourly billing method has little to do with providing value or being paid for quality. It has little do with anything except billing .. .hours.  Is that capitalism?

Does Size Really Matter?

Reputation Dilemma

For trial attorneys, going small / solo can cause perception issues.   The local bar often presumes competence and success is somehow related to firm size.   The most prestigious law firms are presumptively the ones with the largest number of attorneys.  The least prestigious are presumptively the smallest firms and the solos.

Does size really matter?  I once had a high school friend who was often heard to say, “It is not the size of the wand, but the magic in it.”  As I venture deeper into non-solo practice, I am beginning to think he was he was indeed a wise beyond his years.

At LexThink, there was discussion about the difficulties imposed by common stereotypes attached to solo law firms.  These stereotypes can affect client decisions concerning representation, the settlement positions of adverse counsel and insurance companies, referral networks and related issues.

Prospective clients sometimes favor large law firms for no other reason than that they are large.  What they fail to realize is that they are the ones who pay for the overhead of the gorgeous lobbies and big shiny buildings.

What clients may not realize that they may be trading a small firm business model based on competence for a large firm business model based on billing as many hours as possible. I am going to start a link section to solo success stories which will include lawyers and law firms have broken through the stereotypes to become dominant market players in spite of (and in fact because of) their small size. We need to add to these success stories, and market our advantages so that the stereotypes slowly dissolve and competence is judged on quality and other objective measures.

I am Posting This From 30,000 Feet

The Mile High Club (Virtual Airplane Blogging):

Actually I wrote this post last night.  One of the cool features of TypePad (and other blogging tools) is that you can schedule posting to occur at a future date (like when you are in the middle of a flight).  Most bloggers say it is best to post in the the morning.  The easiest way to make that happen is to write posts and schedule them to release before the sun comes up so the early risers will see content in their newsreader.  Pretty cool ..

Finding Virtual Law Clerks

I received a comment and question about Virtual employees as follows:

Where and how do you find these virtual workers? How do you evaluate them? What are the confidentiality and conflict screens you use? I'm very interested in this concept, but don't understand the specifics very well.

Posted by: Scheherazade | April 6, 2005 12:45 PM

Finding Employees: I posted for law clerks on my Alma mater law school web site which allows attorneys to post job openings.  Interestingly, I received students with excellent credentials.  I attribute this to the uniqueness of the posting which emphasized independent work, flex hours, self-motivation and great pay. I also anticipate that there are many lawyers out there who stopped practicing to raise children and would love to step into a virtual position, but would never go back to a 50 hour/week job at  a law firm. 

Evaluation:  I evaluated them initially based on their resumes, grades etc and a phone interview.  The real test is in their work product.  Since they are not employees, they only get work if they complete the assignments in a timely fashion delivering quality solutions. So bad workers simply don't get further work.

Confidentiality:  Each worker signs an Independent Contractor agreement which mandates confidentiality, etc.  If there is a conflict, they can reject the assignment.  All documents transmitted with attorney client information are labeled as such and, in the case of Adobe docs, password protected, locked down for printing, etc. I instruct all workers that they must delete files from their hard drives at the conclusion of the assignment.

LexThink To Do List: Create Billing Standard

I think everyone at LexThink agreed that the current hourly billing model needs substantial reform.  One thing that I want to see happen is for the LexThink group is to agree on a set of principles which we can subscribe to which formalizes new billing concepts and guidelines.  These are simple practical things such as :

  1. no charging for copies and long distance;
  2. no billing for  phone calls under 10 minutes (just the action items which come out of phone calls);
  3. the difficulty of the task determines the fee rate, not the lawyer who happens to be assigned (thereby pushing easy stuff down to lower billing rate);
  4. matching clients with billing structures which meet their needs (flat fee, contingency, value hour);
  5. working within a client approved budget;
  6. creating a documenting efficiency incentives;
  7. the lawyer should take on some level of risk with each project.

This is an outcome I hope to work on over the next year.