My Shingle

This week, it’s Above the Law  columnist Shannon Achimalbe’s turn to Monday morning quarterback a solo practice that ran out of steam- a topic covered previously by Lawyerist , MyShingle and Simple Justice. In spite of this handful of posts, failed law firms or failed start-ups don’t get much coverage (and when they do, it’s all smoke or spin). So even though failure isn’t a topic we like to hear about, analysis is necessary for a balanced view.

In a nutshell, here’s the skinny on the Achimalbe’s hapless solo. He went to law school to escape a minimum wage job but couldn’t find employment after graduation. After a year out of school, he ran into a couple of classmates who’d started practices – and while it wasn’t his first shot, he decided to give it a try.  The first year was rough, with just four clients, and monthly expenses of around $2000 – including rent, bar and networking events, advertising and suppliers – so solo worked odd jobs part time to supplement income. Year two, solo committed to more networking and pro bono that finally bore fruit. So not surprisingly, Year 3 (always the charm) brought a lucrative client which necessitated expansion.  Solo grew – but too quickly — hiring an assistant and adding the cost of additional office space and updated phone system – a jump of $2000/month to $5k. Of course, you know what happens next: two months later, business takes a dive, solo can’t cover his costs and sheds the assistant and fancy digs. But this time around, his heart isn’t in pounding the pavements to get the business back on track and so he shuts down, taking a somewhat more stable but low paying non-legal position.

So what went wrong? Certainly, the $3000/month overhead bump was largely to blame – but why did this solo feel that it made sense to ramp up so quickly? With so many outsourcing options – independent contractors and virtual assistants or even part time work force – readily available and well-documented at websites galore, it is difficult to understand why this solo chose to lock himself when the cash had barely started to flow. Perhaps he was tempting fate – figuring that if solo practice was meant to be, he’d cover that new overhead and then some. Or maybe, because his heart wasn’t fully committed to solo practice even after three years in, he acted impulsively because he felt he had nothing to lose.  [click to continue…]

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In a buyer’s market for legal services, great work alone often isn’t enough to attract or retain a client. At least that’s what two in-house counsel advised in recent interviews posted at JD Supra and summarized at Daily Report Online. According to these interviews, today’s in-house counsel expect outside lawyers to take the time to understand a company’s business needs, provide services that aren’t billed for and generally increase the size of the pie for the company to make in-house counsel look good to management.

For example, one in-house counsel expressed appreciation to a law firm that invited him to attend a seminar relevant to his job at the company and which also earned him CLE.   Ivan Longo, a corporate counsel at CocaCola responded that the smartest thing a law firm has ever done for him is to identify a business opportunity or acquisition. In-house counsel also want their outside counsel to at least apply a cost-benefit analysis to the matters they handle and devote time and effort commensurate with the significance of the matter to the company (One counsel said that the worst thing an outside attorney ever did was to bill more than the company was seeking to recover from the other party).

While lots of law firm coaches and marketers are frantically mailing this information to their law firm clients offering to help create packages, many of these demands are plain silly if we think about them. Really – why should lawyers routinely provide un-billed services? We don’t tolerate those demands from deadbeat clients, so why do we think it’s a good idea to routinely comp a massive corporation? Sure, I understand devoting a few hours here and there to represent help a CEO client’s son incorporate his start up or bail his daughter out of a DUI. But those tasks are personal favors outside the scope of representation. But these corporate counsel seem to suggest that outside firms shouldn’t charge for work within the scope that falls within or closely relates to what the firm has been hired to do.

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By now, you’ve probably read about Stacy Ehrisman, the Georgia attorney who filed a judicial complaint against immigration judge J. Daniel Pelletier after he denied her unopposed continuance request due to maternity leave and then berated her when she showed up with her four-week old infant in tow.  Lots of female commenters – Staci Zaretsky,  Above the Law, Alaina Sullivan, freelance attorney, Modvive and Caitlin White, MTV – took  the judge to task for sexism – both for refusing to accommodate Ehrisman’s schedule and humiliating her in the courtroom.

But was the judge a sexist?  I’m not so sure.  Law is an uncertain business and there are never guarantees that a request for a continuance will be granted, even when it’s unopposed.  All lawyers – and solos in particular, who often struggle to find back up – deal with this kind of uncertainty every day. But until we start using technology to cut down on the number of onerous and useless in-person scheduling conferences that run up client bills (geez, why not just use Doodle?), juggling court dates is always just a little like Russian Roulette.  My guess is that most lawyers, male or female, requesting family based leave from Judge Pelletier could expect the same result as Ehrisman received.

Likewise, there’s no question that Judge Pelletier’s remarks to Ehrisman were way out of line.  But seems that Judge Pelletier is also a big bully – and nasty as his remarks were to Ehrisman, they pale in comparison to his reported treatment of detainees.   [click to continue…]

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A recent decision by a New York court, rejecting a law firm’s breach of contract claim to recover $2.3 million in legal fees from a client highlights both the importance of a detailed written representation agreement and yet another reason to consider adopting flat fees.

According to the New York Law Journal, Kasowitz, Benson, Torres & Friedman were retained in July 2011 by a hedge fund manager and his company to file a discrimination suit against a New York coop for rejecting an application to purchase a new unit. A little more than a year and $3.2 million in legal fees later, the firm withdrew from representation, citing an unpaid balance of $2.3 million in fees.

Subsequently – and in a move that’s often the kiss of death for law firms – Kasowitz sued to recover the unpaid balance from its former client. Notwithstanding that a court referee found that the firm was entitled to the $2.3 million balance, Judge Anil Singh denied Kasowitz’s summary judgment motion to recover the full amount due, citing triable issues, in particular the firm’s compliance with New York’s rules on client engagement agreements. [click to continue…]

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Slowly but surely, these times they are a changing. In Ethics Opinion 1025, the New York State Bar Association (NYSBA) clarified that its advertising rules – which require lawyers to list a physical address on letterhead and business cards – does not “independent mandate for attorneys who advertise to maintain a physical office address.” What’s noteworthy about the opinion, however, is that it recognizes that a physical office is not necessarily presumptively more safe, secure or accountable from the perspective of the client. From the opinion:

First, a prospective client’s intelligent selection of a lawyer can be facilitated not merely by physical presence but also by the potential value (due to lower overhead) of having a lawyer who works solely through a virtual law office (where that can be done competently, as we address below). Second, some clients who work only virtually might also prefer, for some kinds of work, the lawyer who operates virtually as well.  Third, the robustness of electronic communications, and the appointment of a virtual law office service as an agent for accepting service of process, effectively combine to eliminate any concern that a physical office is necessary in all cases for the receipt of service and other communications.  Indeed, as N.Y. City 2014-2 points out, the more electronically-connected lawyer may be “at least as accessible as a lawyer who rents a dedicated physical office space.” We note that physical offices almost always are open only on a limited schedule. Finally, there is nothing inherently misleading about advertising a virtual law office.  All such advertising must be truthful and not misleading, and the inquirer here intends to disclose that all services are conducted virtually and not via a physical office.

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Biglaw Manages, Solo Manages to Do

October 10, 2014 by Carolyn Elefant

In any universe other than the one inside the Beltway, attorney Paul Zukerberg would be the overwhelmingly favorite to serve as the first elected Attorney General of the District of Columbia. Zukerberg has the legal chops for the job; he’s practiced law in Washington D.C. for twenty-eight years, focusing on complex traumatic brain injury cases […]

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Should Lawyers Mark A Spot With With a Domain Dot – And Will Ethics Regulators Say Yay or Not?

October 8, 2014 by Carolyn Elefant

Move over, vanity license plates emblazoned with slogans like NTGUILTY, or call lines like  1-800-SUE-THEM. Beginning today, lawyers everywhere will have yet another means to brazenly trumpet their presence as the gtld  (generic top level domain names) .lawyer and .attorney become generally available for registration. That’s right, by tonight, the web will be littered with […]

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Women Lawyers Now Biglaw Managing Partners. And we care because…?

October 6, 2014 by Carolyn Elefant

Today’s Wall Street Journal reports that two major law firms, BryanCave and MorganLewis each named women as managing partners, a first for both firms. So now, in the words of Therese Pritchard, Bryan Cave’s new managing partner, “younger women think that they can do it too.” Yet is big law partnership what younger women want?  […]

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Playing the Cards You’re Dealt

October 6, 2014 by Carolyn Elefant

Let’s just say that 2014 hasn’t been a banner year for me. The trade association I co-founded nine years ago and helped grow to 55 members at its peak imploded. I lost a motion that I’ve never had denied- nor ever even seen denied in 25 years of practice – and  managed to pull out […]

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Try Before You Buy: Can Testing Potential Hires Work for Solo and Small Law Firms

September 15, 2014 by Carolyn Elefant

We’ve all been there. After months of sitting on the fence about bringing an assistant or paralegal or associate on board to help dig you out from under, you place an ad or ask around to colleagues for recommendations. You’re encouraged when you identify a job candidate who looks great on paper or comes highly […]

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