My Shingle

Who you calling unethical, Warren Boroson? Please stop picking on solo lawyers!

by Carolyn Elefant on May 8, 2012 · 25 comments

in Client Relations, Ethics & Malpractice Issues, MyShingle Solo

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In an era of  lawyer bashing,NJ Columnist Warren Boroson’s piece Why Every Middle Class Family Needs a Lawyer  could have been an important educational reminder why lawyers still matter.  And while in truth, Boroson’s article makes that case, Boroson does a far greater disservice by advising readers to “avoid solo practitioners” when hiring lawyers.

Boroson’s reasons for steering clear of solos are two fold.  Citing an unidentified lawyer expert (note to Boroson:  if a source isn’t willing to give a name, he ain’t worth quoting), Boroson notes that “solos specialize in fairly narrow fields and opt to be independent.” Specialization, however, is all the more reason to bring in a solo – earlier in the column, Boroson himself recommends seeking out a lawyer who “specializes in what you need.”  Moreover, because many solos do specialize, they’re forced to build relationships with  highly skilled lawyers in other practice areas to whom they can refer cases.  When clients go to a general practice firm, the real estate partner is going to send a case down the hall to Mr. Divorce, irrespective of whether he’s ever seen the inside of the courtroom – because the client and his dollars will stay in the firm.  By contrast, a solo real estate lawyer is more likely to refer clients to a first rate divorce lawyer based on merit since most jurisdictions don’t allow referral fees for these types of matters.

As for independence, why’s that a negative?  Do you want a criminal defense lawyer who’s afraid to argue assertively for a client because he doesn’t want to offend the judge?  Do you want a PI lawyer who’s afraid to sue the major restaurant and corporate donor in town because it may cause the PI lawyer to lose business?  Only a big law attorney would criticize independence in a lawyer.

But Boroson’s other reason for avoiding solos is far worse:  he claims that “solos have lower ethical standards” than lawyers in partnerships.  Say what? 

For starters, it’s well documented that bars disproportionately go after solos for ethical breaches (either perceived or real) while treating big fry more leniently.  I’ve blogged about that problem  here and it’s even the subject of a law review piece  But what really burns me about Boroson’s comment is that solo and small firm lawyers, yes, Greenfield,  Tannebaum , Bennett  and Turkewitz  are single-handedly patrolling the ethics of the blogosphere.  Along with these four big guns, I and solo colleagues like  Jamison Koehler, Wells Law Office and no-longer-solo-but-still-small  Eric Mayer  and others are co-defendants; sued by one of New Jersey’s finest because we called him out on ethics and he  sued us for defamation!. Yes, you’ll find big law firms in the case, but only on retainer, defending some of the larger media players.  You won’t find any big law firm defendants because none felt it worth their while to comment on the ethical practices of a lawyer who jeopardized the liberty of a criminal defendant.

So, Mr. Boronson – the next time you tell members of the public not to hire solos, please do your research first.  Because nowhere in the legal profession will you find lawyers as independent and dedicated and  heroic as the solo.

  • Jordan

    Boroson’s article is the dumbest thing I’ve read all year. Many solos are simply good at what they do, so they figured “Why deal with all the drama and overhead of a firm when I can do this for myself?”

    I’ve worked for a big firm and a small firm. One of the things I love about my two person partnership is that our overhead is low enough that we can provide middle class individuals legal services at a cost they can afford. Thanks to new technology, we can do a lot of the stuff my former firms can do – and often we can do it more efficiently. As for ethics, wasn’t it biglaw who was trying to lobby the ABA to relax ethical standards for sophisticated clients…?

  • Jordan
  • WarrenBoroson

    Even among physicians, solos are less ethical–and more likely to have problems, because they aren’t working directly with physicians who could monitor their conduct. The lawyer I quoted, by the way, was defending solos.  

  • Carolyn Elefant

     That’s very interesting about physicians, and not something that reflects my albeit anecdotal evidence.  Still, making a blanket statement that solos are less ethical is extremely harmful. 

    First, your comment may drive people away from capable and affordable counsel.  Many times – such as was the case with the foreclosure crisis – it is a solo attorney who is willing to take the time to get to the bottom of the mess, whereas a large firm may be apt to treat the matters in assembly line style.  (As the link in my post references, it was solo lawyers who uncovered the robo-signing in the foreclosure cases).  Many of the clients who used large firms in these foreclosure defense cases did not receive the attention that their matters demanded and did not fare as well. 

    Moreover, there is no evidence that law partners are any more effective at policing other lawyers’ conduct as solos are at policing their own.  In many of the cases involving billing fraud or other unlawful activity (for example, Jack Abramoff, who was working for a major law firm at the time his fraudulent conduct was discovered), the law firm either stands by and remains silent or claims it never knew what was going on. 

    Third, as you have probably seen, new graduates are entering the market without jobs.  Many are leaving the law entirely, but those who are determined to become attorneys are starting their own practices, entirely on their own. Some of these new lawyers are the most professional and dedicated I have ever seen because they are sticking with the profession out of love rather than hope of striking it rich.  These new lawyers deserve a chance to represent clients and by tarnishing the image of all solos, you may have deprived them of that opportunity.

  • Leo Mulvihill

    “• In general, avoid solo practitioners. Their ethical standards tend to be lower than those of lawyers in partnerships.” 

    • In general, avoid taking seriously any articles written by Warren Boronson. His journalistic standards tend to be lower than those of journalists not named “Warren Boronson”.

    OOOOO! I can do it too!

  • Jordan

    Proving Carolyn’s point, there is a large law firm here in Philadelphia named Cozen O’Connor. One of their associates committed hundreds of thousands of dollars in billing fraud for about 8 years and no one noticed:

    http://www.aopc.org/OpPosting/disciplinaryboard/dboardopinions/148DB2009-Henry.pdf

  • http://emayerlaw.com/ Eric L. Mayer

    I’m not “small.” I’m “fun-sized.”

  • http://emayerlaw.com/ Eric L. Mayer

    Any organization (from solo to large) is subject to the ethics of those who sign the paychecks. Those ethics generally become the ethics of the group. If this weren’t the truth, the term groupthink would not exist, nor would the Abilene paradox.

    Good timing. I recently received a call from a family who turned to a large firm for advice. The associate assigned to the case advised them of a proper course of action. Then, the supervising partner jumped-in and advised them to take an opposing course of action (and in doing so demonstrated that he did not have a good grasp of the matter’s procedural history and future). They followed the big guy. He was wrong.

    Now, I’m attempting to clean-up the mess. We solos/fun-size firms are also good for that.

  • http://twitter.com/steveimparl Steve Imparl

    I was disappointed to read Mr. Boronson’s gratuitous swipe at solo lawyers. He makes some interesting points about the value of having an ongoing relationship with a lawyer. However, his comment about solo practitioners and our allegedly “lower” ethical standards ruins an otherwise interesting article.

    During my 18 years of solo practice, I have aspired to an exemplary observance of the rules of professional conduct for lawyers. I could point out several examples of highly questionable and even blatantly unethical conduct I have seen from lawyers at large firms and governmental offices, but I don’t think there would be much value in doing that, just as I see little value in maligning the ethical standards of solo lawyers as a group.

  • http://www.facebook.com/profile.php?id=1290567220 Mitchell Goldstein

    Boroson’s statement is complete garbage. Solos don’t have a machine forcing them to overcharge or handle cases beyond their capability. Solos do have a network of attorneys in which they have no financial interest so they can refer out cases.

    Oh, and the last time I checked, I was an adult who did not need someone watching over my shoulder so I could do the right thing. Can I sue this idiot for libel?

  • http://www.facebook.com/profile.php?id=751108125 David Lickiss

    In regards to the law review article, I just started to skim it and was wondering if similar research has been done in other jurisdictions.  I’m a 3L taking the July bar in Oregon and plan to go solo (2nd career student who never liked taking orders ;-)  so I would hope to see if there is a pattern outside the big cities in the east.  

  • Soumy Nona

    Never trust a journalist who has authored their own Wikipedia entries.

  • Mike Blake

    Nice to see you hate people disagreeing with you, and you have removed comments from http://www.newjerseynewsroom.com/economy/why-every-middle-class-family-needs-a-lawyer.  Typical.  I wonder where silencing opposing views falls with respect to journalistic ethics?

  • Warrenboroson

     I didn’t removed comments. Even dumbbells have a right to their opinions.

  • WarrenBoroson

    The name is spelled B o r o s o n. Try to be more accurate.

  • WarrenBoroson

    Never trust a lawyer who claims, falsely, that someone has written his own  Wikipedia articles. 

  • WarrenBoroson

    Your letter is the dumbest thing I’ve read all year.

  • Mike Blake

    Sorry Warren, I see them now, for some reason they were gone before, my mistake! 

  • Natara

    Carolyn, thank you very much for posting this article, and for calling Mr. Boroson out on his unnecessary jab at solos. Having worked in big law firms and with solos, I can say firsthand Mr. Boroson’s assessment that solos are less ethical than their large firm counterparts is completely bogus.  I have seen some very shady billing practices take place in large firms.  For many junior associates trying to keep their jobs, senior associates trying to make partner and partners trying to prove their worth,  billing goals  can trump ethics. 

    Shame on you Mr. Boroson for making such an inaccurate generalization.

  • Guest

    I agree that no solo practitioners have the competence or ethics to serve Mr. Boroson’s legal needs. I would refer him to Cravath, Swaine and Moore to litigate the $300 bill arising from a bay leaf in a burrito. As for the “neighbor [who] makes too much noise at night”, I believe that only the trial team of Quinn Emmanuel can bring Mr. Boroson the relief that he deserves.

  • Guest

    What legitimate lawyer would make time for this fool Boroson?

  • WarrenBoroson

    Do you know any good lawyers you can ask?
     

  • thesoleless

    It also seems to be the only thing you’ve read all year. 

  • thesoleless

    Do you write for a living? ”
     I didn’t removed comments. Even dumbbells have a right to their opinions.” LOL. Thanks for explaining your articles for us. 

  • Warren Boroson

    Introducing the New Phrase, The Rochester Fallacy

    By Warren Boroson

    I’d like to introduce a new phrase into the English
    language.

    The new phrase: The Rochester Fallacy.

    It means focusing on the case rate and not the base rate.
    Focusing on what may be misleading exceptions rather than the broad historical
    picture. Seeing black swans and ignoring
    all the white ones.

    You see this a lot in the way people invest. They buy a hot
    stock—although it has an utterly abysmal long-term record. Okay, whatever’s
    happened recently may BE more important. Maybe a stock is more valuable now
    because a lawsuit has been settled, or the company’s idiot in chief has
    retired. Still, remember the old saying: Trees don’t grow to the sky. Hot
    stocks cool off. They regress to the mean.

    Why Rochester?

    When I was a kid—many years ago—people would say that blacks
    are poor. They don’t enjoy the financial benefits of living in rich America.

    And I, along with the other kids, would scoff. “Hey, look at
    Jack Benny’s Rochester! He must make a ton of money! He must be a
    multi-millionaire! So, how can you claim that black people aren’t wealthy? And
    what about Joe Louis? And Paul Robeson?”

    Well, Rochester belonged in the black (!) swan category.
    Blacks in general were much poorer than whites. They still are.

    Today I told a group of people that young beautiful women
    generally don’t amount to much. They get praise and attention and rewards in
    general just by looking so pretty. They don’t have to become famous writers or
    famous scientists. (I’ve actually seen a study that claimed to prove this.)

    Nonsense! replied one woman. Hedy Lamarr was beautiful and
    invented something or other! Madame Curie was smart as well as good-looking!
    (Well, I would venture to say, not quite in the same class as Hedy.)

    Well, I replied, something should be considered true, at
    least tentatively, if it’s true at least 60% of the time. That means it’s
    statistically significant—statisticians tell me. In giving me these unusual cases of
    good-looking women who have achieved something, you’ve fallen victim to the
    Rochester Fallacy…. No, I didn’t actually say that. I hadn’t invented the
    phrase, the Rochester Fallacy, yet.

    A few years ago, I wrote an article urging people to have
    lawyers on call, and in choosing a lawyer to look for a large firm, not a solo
    practitioner—other things being equal. One reason: You want other lawyers
    looking over the solo practitioner’s shoulder.

    A bunch dumbass solo lawyers then came down on me like a ton
    of pricks. (That’s not a typo.) All of them knew this poor schlub who consulted
    a big law firm and got into trouble—when a solo would have been so helpful. The
    Rochester Fallacy.

    I’ll actually name one dumbass lawyer: Carolyn Elefant of
    Washington, D.C. I’ll single her out
    because 1. she used “who” instead of “whom” in her email, 2. she misspelled my
    name, and 3. she keeps posting and re-posting her reply, so that it’s high up
    whenever anyone checks out my name.

    By the way, I’ll
    bet that she’s not good-looking.

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