Back in 2003, I wrote a post (not presently available online) entitled the Bar’s Dirty Little Not So Secret Secret. The article highlighted how most bars’ disciplinary systems disproportionally target solos, when there’s plenty of incompetence to go around. But there’s a problem far worse than disparate enforcement – and that’s disparate impact, i.e., where the very design of the bar rules unduly burden solos.
What set me off on this post was this article in the ABA e-journal (5/21/07) discussing ABA Formal Opinion 06-444 (Sept. 13, 2006) which allows law firms to condition an attorney’s retirement benefits on acceptance of a non-restrictive covenant. Traditionally, firms are prohibited from forcing lawyers to sign non-compete agreements because non-competes interfere with the clients’ unfettered right to a lawyer of their choice. As the article describes, the ABA Ruling creates a difficult choice for retiring attorneys, who must forego retirement benefits if they choose to open their own practice (presumably where they compete with their former firm or where they take firm clients) Because I wasn’t able to read the opinion (the ABA stupidly charges for this kind of stuff) I can’t tell how it would impact older biglaw attorneys like those at Sidley Austin who were demoted when they ceased to make enough rain – after all, they too might decide to start their own firms, rather than face the embarrassment of staying on where they’re mistreated. Perhaps the ABA opinion is intended to deprive older lawyers put to pasture by big law firms of the option of starting their own practice as well.
As I pondered the ABA decision further, I realize that it’s not an isolated case. To the contrary, there are a myriad of bar policies that quite simply, make it more difficult to go solo, or to succeed in solo practice.
Consider for example: the Maryland bar’s rule prohibiting lawyers from joining BNI or similar type referral groups, , while permitting large firm lawyers to create
affinity practices, which are the same concept as a referral group, with a fancier name. What about the extensive restrictions on advertising, such as the
New York Bar’s rules which could restrict lawyers’ ability to blog imposes other limitations on lawyer advertising or other advertising rules “http://myshingle.com/my_shingle/2006/01/ohio_bar_wont_a.html”> (such as in Ohio) or Nevada ;the DC bar’s gall in even
suggesting that a solo lawyer is not a bonafide “law firm”, prohibitions on firms using virtual associates from holding themselves out as a larger firm and rules against multijurisdictional practice that
prevent solos not licensed in a state to work as a lawyer in that state when they only handle matters in the jurisdiction where they’re licensed.
As associate attrition increases at law firms, solo practice is an attractive option. But rather than try to retain lawyers by making biglaw a more inviting place, large firm lawyers, which dominate most bar associates and have substantial influence over ethics regulation, are simply making it more and more difficult to succeed as a solo. Call me a conspiracy theorist is you want – but if you do, you need to tell me what explains the bar rules that I’ve just described that disparately impact solo and small law firms.