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Is This Really How You Want To Practice Law?

by Carolyn Elefant on August 22, 2011 · 15 comments

in Criminal Law, Practice & Policy, Encouragement, Gaining Competence

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Well, it pays the bills. A solo criminal defense practice that generates over $100,000 in billings. No employees and no need to advertise.  There’s just one small detail: you’ll handle 558 cases in a year and take 4 to trial. Fewer than one percent.

It’s not difficult to find a solo practice like the one I just described. Thomas Eikenberry, a Knoxville, Tennessee-based lawyer, runs this kind of operation, as presumably do his colleagues who are subject to audit for running up more than $100,000 annually in court-appointed billings.   Mind you, there’s no allegation of wrongdoing – the audits are standard practice for anyone who bills more than $100k. Nothing to suggest that Eikenberry isn’t doing his job “serving clients” as he pushes cases through the system (Another reason why “client service” isn’t necessarily the right or only metric for evaluating the quality of a lawyer).   As Eikenberry says in the article, most of his clients admit that they’re guilty and would like to accept responsibility and move on.   Still.  Even taking all that into account, the question remains whether this is the kind of job that you want to do for your clients, or if this is the kind of practice you want.

Do you want to be the lawyer who asks the client if he wants to consider a plea before even investigating the case? Do you want to be the lawyer who moves clients in and out of your office and the court room like widgets on an assembly line? Do you want to be the kind of lawyer who isn’t a lawyer at all, but just a glorified administrator who can be readily replaced by a non-lawyer.

I realize that many criminal indigents have few options for representation, and probably can’t even afford the $40-$50 an hour that the state pays court-appointed lawyers. Likewise, with so many lawyers graduating without jobs and starting out hungry, court-appointed work is like manna from the heavens.  For that reason, court-appointed work makes sense — but only so long as you handle each case with the level of excellence that every client deserves and that professional responsibility demands.  Court-appointed work is not – and was never supposed   to be a full time job. Once you find yourself compromising your standards or breaking ethics rules (whichever comes first), it’s time to wean yourself off court-appointed work.

My book on solo practice is called Solo by Choice because I believe that when we start a law firm, we make an affirmative choice to stay in the law. But here are other choices in solo practice as well as well. You can choose, as I have argued in my most recent plenaries, to practice as a lawyer in our highest and best use – be it as a trusted advisor or zealous advocate.  Or you can choose to be the lawyer who cuts corners, who makes it up on volume, who moves 558 cases a year and tries just four.

When you start a law firm, why bother unless you’re going to operate as a lawyer in your highest and best use?  Because if what you’re doing just pays the bills and nothing more, you might as well work for someone else.

Note: post was updated with minor expansion in Para 2 at noon.

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  • http://samglover.net Sam Glover

    No, I don’t. But I don’t see anything inherently wrong with agreeing to handle more cases for less money, if you can figure out an efficient way to do it that also serves clients well.

    In this scenario, I’m mostly concerned about that last part. I know a lot of defendants in the criminal justice system are basically riding a conveyor belt, but I thought a lawyer’s duty was to get his client off the conveyor belt and get them some individualized attention. Maybe this just shows my ignorance of criminal practice, but I’m not sure the “serving clients well” is happening, here.

  • Carolyn Elefant

    I agree.  And I do think that technology can help in that respect – not to replace us, but displace the repetitive or unnecessary tasks that occupy our time and free us up so that we have more time to focus on the stuff where we can’t be replaced (like arguing motions, making constitutional arguments, etc…)

  • shg

    That’s an interesting assertion, Carolyn. Please explain what tasks in criminal defense are “repetitive and unnecessary” and can be taken over by technology. 

  • Carolyn Elefant

    Reading Sam’s comment, I assumed he was not discussing criminal matters.  
    Repetitive tasks are administrative – like setting up a template with the right format for a particular motion (NOTE – I am not talking about a template for the substance or a fill in the blank pleading but something that has the format, case heading, appropriate spacing, etc…if you have a format for that, it saves time).
    Calendaring – putting relevant dates into a calendar so that you don’t miss them.
    Unnecessary was a stupid modifier. The unnecessary work that I see comes up in civil cases with a staff of 5 billing by the hour.  That’s what I was thinking when I used the term unnecessary. You’re right – there’s nothing that is unnecessary in a criminal defense matter – or for that matter, in any case where lawyers bill on a flat fee.

  • shg

    That explains what confused me. Sam spoke about criminal defense lawyers (whom I assume he sees when he walks past a courthouse on his way to a Social Media Marketing function and looks into the windows).  We don’t have any work that could be replaced by tech, though tech does make much of our work faster and more effective. Still, it all requires thought to do properly.

  • http://samglover.net Sam Glover

    You sure do know a lot about my law practice!

    I admitted I don’t know much about yours. I haven’t handled a criminal defense matter in years, and then it was mostly research and writing, and a couple of appeals. I’ve been litigating primarily civil matters since then, and there are definitely some repetitive tasks in the kinds of cases I have focused on, though they are definitely not unnecessary.

  • shg

    You have unwrapped the secrets of debt collection law for me. My life will never be the same.

  • shg

    You have unwrapped the secrets of debt collection law for me. My life will never be the same.

  • http://twitter.com/allenlawnc Richard D. Allen

    558 cases in one year is a truly jaw-dropping number, but I don’t think one should assume that just because a court appointed defender has few trials in a year, he isn’t following his clients’ wishes. In my experience, at least with regard to misdemeanors, a client’s primary concern is often: will pleading guilty send me to jail or violate my probation? If not, some will take a plea just to get out of the courtroom and back on the street. 

  • Carolyn Elefant

    Having only handled a handful of court appointed matters 20 years ago, this is something I’m not really qualified to comment on.  But I’m curious – what is the obligation of a criminal defense attorney where a client admits guilt in a case that can’t be proven?  I would imagine that the lawyer must at least explain the options – the possibility of getting off versus getting a lesser sentence.  Any thoughts?

  • Shaun Jamison

    I would be interested in finding out the percentage of cases tried by private pay clients in the same jurisdiction.  That would at least give us some kind of comparison even though it wouldn’t be “apples to apples.”  

  • http://www.rollingmeadowsattorney.com Jameika Williams Mangum

    I practice Criminal Law in the Chicago area. The article states 558 cases were “resolved.” I wonder if this figure includes dismissals. There have been a number of cases where I was prepared to go to trial, and the case is dismissed. Cases can be dismissed due to a witness failing to appear, or the Assistant State’s Attorney realizing that the case is weak. I always explain all options to clients regarding trial (bench vs. jury), and plea agreements. But ultimately, the decision rests with the client.

  • Guest

    Sure, but ultimately it is going to be up to the client as to how to proceed. 

  • Same Guest

    If we are talking about misdemeanors, 558 cases is not that many.  Say 3 days in court a week, 5 cases resolved each time–that’s over 700 resolutions a year.  And 5 cases resolved per day is quite low for the courts where I have worked.

  • Same Guest

    Discovery requests can be done using basic templates–for example, you are going to be making pretty much the same discovery requests for every single DUI matter.  Templates are also very useful for many motions in limine as well as for some motions to suppress and dismiss. 

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