New Solo Law Practice = Malpractice?

Spring has arrived, meaning baseball season has started, and thousands of law students are graduating with no job prospects. Suddenly that weird guy who gave a lunchtime chat on going solo does not seem so weird.

At some schools, however, law students are conditioned to believe that going solo immediately out of law school is not only a bad idea, it is likely to result in malpractice. If you believe that, then you also believe that people who talk in class are the smartest people in law school.

Law is a general degree

Maybe you focused on taking criminal law classes, or got a concentration in business law. If you go into that area, those extra classes will be helpful. But you may not get into your preferred practice area immediately. Relax. Your critical thinking skills can be the most important skill you have. According to Rule 1.1: Competence, of the Model Rules of Professional Conduct, “A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”

Create a network

One great way to protect against malpractice is to network with more experienced attorneys in your practice area. Ask them if they are willing to help you out, and answer questions when necessary. Maybe they are even willing to share some of their briefs to get you started. You are still responsible for the client’s case, and you still have lots of work to do. But now you have a person, or persons to call when you have questions.

New lawyers research more

Once attorneys handle a few cases in their practice area, they spend less time researching case law. One reason lawyers try and stick to a practice area is because the more time you spend in that area, the more adept you become at handling the cases. You know the case law, you know the general pattern, and you become efficient.

When you handle a case outside your comfort zone, you research a ton. You find colleagues who know about the practice area. Unfamiliar territory is uncomfortable territory, and you prepare more then you usually do.

Bottom line–you can do it

You can handle going solo. Read the rules in your state, confer with colleagues, and research as much as you need to. Be diligent and meticulous with your cases, and you will realize you are capable of more then you think.

(Photo: http://www.flickr.com/photos/netochka/490710066/)

Legal Careers, Starting a Law Firm

, , , , ,

  • http://joshcamson.com Josh Camson

    Are law schools really discouraging solo practice? One of my professors is a successful private practitioner, and he even broke down for us how much it costs to run a law firm.

  • http://styronblog.com Harry Styron

    From several years of experience on a committee that investigates complaints against lawyers, I have to conclude that entering practice as a solo has special risks.

    Ideally, new lawyers would acclimated to the practice of law in firms with good practices for handling client relationships, file management, calendaring, and trust accounts. But there aren’t enough of these jobs to go around. Some of the lawyers who don’t get jobs with firms may include those who most need the support that a firm would offer.

    Figuring out the applicable legal rules and procedures is often the easy part.

    The lawyers who generate most disciplinary complaints handle very difficult life situations for clients in family law and criminal defense.

    It’s a huge challenge to learn how to practice law (and to make a living at it) while working for poor clients going through powerful emotional upheavals.

  • Randall Ryder

    @ Harry – you raise a number of good points. As I noted above, I think it is essential to create a network of experience attorneys willing to help. Ideally, that network can assist with legal issues, and practical considerations like file management, trust accounts, etc.

    I’m also glad you pointed out the necessary people skills–dealing with clients difficult emotional circumstances. New graduates who have real life experience (did not go straight from college to law school), generally seem better prepared for those situations.

  • http://lawyerist.com/author/samglover/ Sam Glover

    The additional problem with Harry’s comment is that most young lawyers who get jobs at a firm do not get client contact, do file management, or handle trust accounts. They sit and review documents, usually for a couple of years.

    He is right that new lawyers should be extra careful, but the numbers show more new solos getting ethical complaints than new firm lawyers because there are more solo practitioners, period.

  • William

    You mean people that talk in class more aren’t smarter??
    Cheers for a great post Randall. I think people should also remember that the state bar’s may have problems, but they are rarely “out to get you.” If you are starting a solo practice, reach out to the bar’s ethics committee or ethics hotline. At least here in Florida, there are many bar based organization that in place to help people trying to start a firm (In Florida LOMAS is great). Law school teaches you to fear the establishment and their iron fist, so it can be a mental hurdle to pass, but I would highly recommend it.

  • Randall Ryder

    @ Sam – great point, many lawyers do not have those experiences until they hang their own shingle.

    @ William – thanks for mentioning those resources, they can be invaluable for new attorneys. I have called the Office of Professional Responsibility and they were extremely helpful.

  • Jon B.

    New law grads have plenty smarts & savvy. The fault lies not with them, but with the “academy.”

    The plain truth is that law school does very little to prepare you for the actual practice of law. The fact that tenured faculty practically wear this as a badge of courage, while sneering at anything that smacks of “trade-school” is unfortunate. Even the very brightest will have trouble going solo right after graduation, because you literally don’t know what you don’t know.

    Look at other professional graduate schools — residency, internships and practicum are the basic model. But, you can become a lawyer and handle real peoples’ problems with ZERO prior experience. Med School did more than teach your brethren to “think like a doctor” — they had to actually practice real skills in a realistic setting. I’ve been a lawyer for 18 years and can not believe so little has changed in the training of lawyers. Perhaps the dearth of jobs for new grads will poke the academy to change….but don’t hold your breath.

  • Liz

    I don’t think all employment situations can be addressed with a blanket recommendation to “network!” Particularly not this one.

    “Hi Mr. Solo scraping together $50,000 a year after 20 years in practice, and trying to pay for your wife’s health insurance while the premiums just keep going up. I’d like to take some of those cases and old briefs off your hands! I am hardworking and enthusiastic and blah blah…”

    Do you really think the older solo has so much business that he’ll be thrilled by some untrained idiot offering to undercut his prices? Or do you think, at best, this networking” relationship is going to focus on free “training” that consists of doing scut work for the older attorney? Really, given the harsh reality faced by most solos, what would you expect? “Oh, yeah, your $40,000 a year law school didn’t teach you anything, so let me just volunteer my time and services to fill in the gaps…”

  • Carmen

    Thanks for this post.

    For a few years, I have taught legal writing/research and appellate advocacy at a law school (no, I’m not tenured or on a tenure track) while also handling a part-time solo practice. I have been encouraging my academic colleagues to provide training and resources for students who are preparing to enter into solo practice. To my surprise, I am getting a lot of resistance. Many law school professors (most of whom never practiced law) think it is a mistake, because they think students who go solo will commit malpractice and make the school look bad. My school is not a top school, and tuition is very high. Many students will have no choice but to open their own practice. The law schools need to recognize this and do something about it.

  • http://ethicsmaven.com/ eric Cooperstein

    @Liz Networking is not a synonym for cold calling. Networking is about building relationships, getting to know people, letting people know what you would like to be doing, etc. Through relationships come referrals and opportunities. It is a marathon, not a sprint.

  • http://styronblog.com Harry Styron

    @Sam, I didn’t say that new solos get a disproportionate number of complaints. I said that entering practice as a solo presents special risks for complaints.

    I said that family law and criminal practitioners get the bulk of the complaints that I see. Many of these complaints are against veteran lawyers, some of whom seem to be magnets for complaints.

    What I said was ideal–that new lawyers would receive training in firms with good procedures–is admittedly a rare circumstance, probably most likely to occur in small firms.

    Networking may help, but for lawyers who wish to be solos, regardless of years licensed, they need to personally assume the full responsibility of being courageous and diligent advocates.

  • http://lawyerist.com/author/samglover/ Sam Glover

    I agree on all points, Harry. And from what you have said, at least, it looks like they are.

  • Adam

    I am someone who opened my own practice directly out of law school and this article’s advice is exactly right. I have developed good relations with nearby attorneys and have had no issues getting questions answered. In fact, oftentimes I am able to point out some new element that they weren’t aware of in their own cases. Going out alone is daunting, but it’s certainly possible if you are willing to put in the time. For instance, as a young attorney I am particularly conscious of my work product quality, which means I spend an inordinate amount of time on each thing until it’s perfect (I am also a slight perfectionist). In the end, the client contact and immediate experience has been great.

  • Tim

    I think the key to the problems new lawyers have starting out a solo practice have more to do with business than law. As someone who started law late in life and had twenty years business experience before becoming a lawyer, it appalls me how little law schools teach about the business of law. It seems they treat the fact that a law office is a business like a dirty secret.
    Although, I survived starting out solo, I really think there should be some kind of internship/apprenticeship requirement.

    • Boyd

      “I really think there should be some kind of internship/apprenticeship requirement.” The problem with that is the same people who cannot get hired as an associate with a firm out of law school will be the same people who will be universally rejected when they try to find an internship/apprenticeship.

      Like grades, law review, and the bar exams, the internship/apprenticeship would serve, not as a training mechanism for the students who will not be offered jobs based on their academic standing, but rather it will serve as an additional culling mechanism to further separate more law school graduates from entry into legal practice.

      As a bottom of the barrel student, the basic problem I have encountered is that there is simply no route forward when learning to practice law depends entirely on finding someone else that is willing to extend an invitation into the club.

  • http://www.attorneyisaacs.com Marshall R. Isaacs

    Randall -

    I appreciate your enthusiasm. In fact, I could never have gone solo without authors like yourself and Jay Foonberg telling me “you can do it.”

    However, I have to wholly disagree with you when it comes to solo practice in New York State, particlulary in the field of litigation. The system is so broken down that it’s not how well you know the law but how well you know the system. The only way to achieve that is through years of guidance and on-the-job experience as an associate.

    If you’re interested in a “New York perspective”, please read my latest installment for the New York State Bar.

    http://nysbar.com/blogs/smallfirmville/2010/03/demise_of_the_civil_litigator_1.html

    Respectfully,

    Marshall R. Isaacs

  • JonesLaw

    Personally, I think “new solo practice” does equal more malpractice risk… whether you’re a recent graduate or an experienced attorney just making the decision to go out on your own. I had almost 7 years of solid general practice experience under my belt when I opened my own firm. Having spent years after law school working for other firms, I’d say I learned just as much (if not more) about what NOT to do as I did about what TO do. But after never having had a single ethical complaint filed against me (or even the threat of a malpractice action) previously, it seemed like 1 out of every 5 new clients my first 2 years in my own firm eventually threatened to file a complaint against me. Not for anything I’d done wrong, but if I sent notice that I’d have to terminate representation for past due fees (scheduled pursuant to flat fee agreements), if they refused to follow instructions and ended up being found in contempt (even after the close of a case), if I refused to suborn perjury, or if declined to take on additional legal matters for them. Clients believe that solo practitioners, especially new ones, equal less protection, more desperation, and an overwhelming fear of the State Bar. I’ve gotten excellent results for my clients 95% of the time, but several persisted in believing new practice meant “naïve”, and invariably got upset if they couldn’t manage to take advantage.

  • http://younglawva.com Ryan C. Young

    I have just hung a shingle out of law school. I know that it going to be a lot of hard work. I’m a little older than the average law grad. The surprising thing is that I have friends from law school who are convinced that I am breaking some sort of professional responsibility rule by going solo. My one friend keeps emailing me to “warn” me. I got good grades in law school, I passed the bar, I have insurance. How could I possibly be breaking rules?

    • http://lawyerist.com/author/samglover/ Sam Glover

      Ryan, your friends just wish they had the guts to do what you are doing. Since they don’t, they are trying to persuade you that you are better off doing what they are probably doing: applying for jobs without much hope of getting one.

      Going solo out of law school is hard. I’ve watched a lot of people do it. The ones who succeed are the ones who take the business side of their law practice seriously, and aren’t afraid to try new things. Because let’s face it, everything is new when you are right out of law school. The ones who fail are the ones who listen to people like your friends, and don’t try because they are afraid of screwing up.

      Work hard, focus on business as well as client service, and ignore your friends from law school.

      And find a group of people who are doing the same thing. Peer support is key. The LAB is a great peer support group for someone in your position, and your bar association(s) may have more.

  • http://www.windsorbarrister.ca Jason Currie

    I also went on my own right after getting licensed, but I also have the benefit of one of the major differences between American and Canadian legal licensing. After three years of law school, I had to spent ten months articling (clerking) under a practising lawyer before I could be licensed. I learned more in those ten months than in my three years of law school. Looking back, I can’t imagine setting up my own practice right out of school.

  • http://www.startingasolopractice.com/ David Sandy

    I started straight out of law school. I never had any client threaten a bar complaint. It’s really not that difficult. Also, the cases one handles straight out have very little risk and you’re likely to be uncollectable. It’s not like you are going to be handling million dollar injury cases as a new solo.

    Sure may have to write off 3 hours of research now and then but it’s mainly all written down or ask a clerk, even then we aren’t doctors, there’s only a almost insignificant section of cases where the clients would die if you commit malpractice.

    I wrote down a small ebook and posted it on my site about what I picked up my first year or so of practice and I don’t recall there ever being a case where experience really mattered a great deal. (I mean I got better, but all my clients got their money’s worth).

  • Nicholas

    You aren’t really a true lawyer unless you hang out your own shingle.