My Shingle

Is This Really How You Want To Practice Law?

Carolyn Elefant — Mon, 22 Aug 2011 15:29:57 +0000

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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CDLs Putting Us Other Solos to Shame

Carolyn Elefant — Wed, 29 Dec 2010 14:52:52 +0000

For the second year in a row, Scott Greenfield is running a contest for the best criminal law blog post for 2010. Because I’ve been so busy these days, I only read a handful regularly – though I also visit posts with headlines that catch my eye or that friends highlight on Twitter or FB. So I’ve already seen many (but not all) of the fine submissions to Scott’s contest, though I don’t feel qualified to nominate any selections (but you definitely should).

Even if you don’t nominate anything, take a look at the submissions so far. Some of the posts are nostalgic or probing, others bleed with a sense of frustration or hopelessness, while others are wickedly funny. Reading these posts, I can’t help but envy the familiarity that these criminal defense bloggers have with their craft and the deft, breezy way that they can sketch out the issues and law. The posts betray an intimacy, a passion and many lawyers never find.

Many of the CDLs are also solos, and as such, some of the posts mentioned offer a peek inside the life of a solo or small firm lawyer who’s either learning his craft or sharing the lessons.
But not all solos are CDLs, and I got to wondering about where the soulful solo blogs are. The ones that write openly about the real challenges of getting a practice off the ground, or lyrically, about the thrill of that first client walking through the door or the agony of losing a case that should have been won, with terrible consequences. The kind of stuff that humanizes you to potential clients.

These days, most solo and small firm blogs (not talking about those on substantive topics – plenty of great ones there) are comprised of a bunch of practice management or marketing tidbits, full of help but short on heart. These days, the strictly solo blogs that touch me most are Peter Olson’s Solo in Chicago which is practical, yes, but grounded in his own experiences and Bruce Cameron’s lyrical Rural Lawyer. I know that there are more, particularly newer solo blogs that maybe haven’t yet found their sea-legs, but I haven’t seen them. Of course, I realize that blogging about starting a practice is a tough sell – after all, if you’re going to go through the trouble of blogging, you might as well spend your effort on showing your expertise in a practice area that will earn you money. But still, it would be nice for us solo and small firm lawyers to have our own genre.

So, I’ll leave you with this. First, if I’ve missed out on other terrific solo blogs written by solo or small firm lawyers, please send me the links below. Second, if you ever feel like writing a post – something honest and raw – about starting your firm or lessons learned or your failures or success – send it my way. I do not want marketing posts. I do not want pat little essays on “I started with nothing and six months later I was on my way.” No cotton candy sweet stuff that dissolves from your memory 20 seconds after reading it. I what the kinds of posts that stick in your mind, months and years later. Like every one of these.

The Practice Was Perfect

Carolyn Elefant — Wed, 20 Oct 2010 16:08:57 +0000

Last Friday, I had the privilege of attending, and presenting a session on niche practice at The Practice, organized by my friend and colleague Brian Tannebaum, this year’s president of the Florida Association of Criminal Defense Lawyers (FACDL) . Geared towards criminal defense lawyers running a law firm, the Practice touched on all of the elements necessary to a successful practice, from homespun, practical advice from two criminal defense lawyers with 25 years of experience or more, insight on transitioning tech into the clouds from Rocket Matter’s Larry Port, law firm marketing strategies from David Lorenzo, plus advice on personal investment and public relations from other speakers at the close of the session.

On top of that, there was also a keynote luncheon speaker by criminal defense attorney, Roy Black who rose from the ranks of public defender to the heights of cases that capture front page news. Also a panel talk that included criminal defense legend, Albert Krieger who’s been practicing law since the 1940′s and spoke movingly of the historic role of the criminal defense bar in protecting our liberties and the most important thing in his life, his wife of 65 years. Finally, capping the evening was a rousing night of dancing on the tables, and an opportunity to spend some more time with Brian, Larry and also Brian Gurwitz a criminal defense lawyer, blogger and blog-commenter who flew in from California to attend (As an aside, Brian is as humble criminal defense lawyers I’ve ever met; he quietly confessed to me privately and even reluctantly that he’d won the 2010 Best of Orange County Criminal Defense Attorney award without mentioning the dozens of other glowing write-ups that I later learned about him online).

Anyway, if you’re thinking that the experienced lawyers who dominated the Practice’s agenda wouldn’t have any relevance in today’s 21st century world, you couldn’t be more wrong. One lawyer emphasized the importance of using technology – not just for the sake of looking cool, but to access court records and information on DUI arrests right in his office with clients, both to show that he’s on top of their case and to provide them with immediate updates. Roy Black, who could have spent hours talking about his trial skills, instead urged lawyers to throw away their trial advocacy books and pick up some marketing books, not just to find clients, but to learn how to be more persuasive to juries. Albert Krieger reminded lawyers of a time when the profession was dominated by white men, and praised the strides we’ve made in diversity, something we often forget with all of the complaining about lack of diversity at biglaw, as if that was, or should be a barometer of the profession.

Moreover, even in today’s world, so much of the old advice is timeless, universal – and yet, not the type of stuff that’s covered in the books. Consider some of what I picked up from the talks: Don’t bring your client to the hearing in a case that relies on eyewitness identification. Don’t shirk on your ethics obligations to any client, but don’t feel compelled to charge the same rate for a wealthier client as for one who’s short on cash. Find out what your client hopes to achieve by retaining you – if they want to avoid jail time after 4 DUI arrests, you probably aren’t going to be able to do much to help them and should either help them accept reality or send them elsewhere. You may have to get up at 4:30 am in the morning to get home to your kids at night, but you do what it takes to make it all work. Treat people right – not something that was said overtly, but which I picked up on nonetheless. Both of the experienced criminal defense lawyer who spoke heaped praises on their associates and their knack for extracting information or winning touch cases. When’s the last time you heard a biglaw attorney mention, let alone compliment a junior colleague publicly?

That Brian was able to get these busy lawyers to turn out for his event is a testament to both his reputation and his ability to organize a rocking conference. Don’t turn up your nose at that skill, because there aren’t many people – even those who do CLE professionally – who get it right. Brian planned a well-rounded, balanced day at a stunning location with affordable rates for overnight stays and arranged for transportation to the evening’s event. He surveyed participants in advance to get a sense of their interest in attending so that speakers could tailor our materials to attendees’ interests. Brian also browbeat all of us speakers to encourage, even compel audience participation. He asked us to tweet the conference so that others, beyond on-site attendees, could benefit from all of the value. And after all of that, he stayed in the background, shining the spotlight on everyone else except himself.

Practicing law in your own firm is so much more than a job, where all you do is show up. Running a law practice involves so much more – there’s the most important part, of course, – representing clients, but there’s marketing and technology and feeding our families and planning for retirement getting to know colleagues outside of the office. The Practice was all that. And unlike most of our own practices (well, mine anyway), this Practice was just perfect. Thank you, Brian!

The Defense for Starting A Criminal Law Practice Out of Law School

Carolyn Elefant — Fri, 13 Aug 2010 02:43:56 +0000

I’ll admit that I’ve always had mixed feelings on the question of whether to solo straight out of law school. As I explained in this early post, from my perspective, it made sense for new grads with no work history and with significant student loan debt to take a paying job if only for a year or two and begin to build a reputation on someone else’s dime.

Of course, in today’s economy, my preferred employment-to-solo scenario simply isn’t feasible. And if that’s the case, I’ve always endorsed solo practice as a far preferable option to working as a paralegal or leaving the law entirely.

So how do new grads get a practice off the ground? Last week, Washington D.C. criminal defense attorney Jamison Kohler blogged about this topic extensively, offering solid advice on how new grads can find training, mentorship and plain old camaraderie to build a criminal defense practice (though it will take some time).

Coincidentally, just as Jamison was drafting his post, I was at a Tweet-Up in Minneapolis, Minnesota where I interviewed Anthony Bushnell as part of the MyShingle SoloCorps Project, who started his now five-year old criminal defense and civil litigation firm right out of law school. Though Bushnell initially intended to work for himself rather than sit around and wait for a job, turns out that by doing so, he wound up creating a job for himself:

SoloCorps Interview – Anthony Bushnell, Minneapolis Criminal Defense & Civil Litigation Solo from Carolyn Elefant

Did you go solo out of law school? Share your advice in the comment section below.

What a Niche Law Practice Is (Pot Law)…And What It Is Not

Carolyn Elefant — Mon, 21 Jun 2010 14:43:59 +0000

One of my solo-centric colleagues, Susan Cartier-Liebel of Solo Practice University is running a two-part series on niche practice over at her Build a Solo Practice blog, so I didn’t want to send you into niche-overload. But I after seeing this article from the National Law Journal on “pot law practices,” I couldn’t resist. Though folks charged with dealing or using marijuana have always needed a good criminal defense lawyer to represent them, what makes pot law such an addictive practice area now is the thicket of conflicting federal and state law policies on medical usage (yes, both puns intended!). State law changes on medical usage are also opening the doors for marijuana dispensaries, which have recently been subject to crackdowns (or potdowns?) The article also mentions Allison Margolin, LA’s Dopest attorney, who was the subject of a post here four years ago on effective use of video.

Pot law makes a great niche for a variety of reasons. First, the laws applicable to regulation of pot are in flux, and questions involving preemption are highly specialized and extremely complex. These aren’t the kinds of cases where you would necessarily want a run-of-the-mill criminal defense lawyer to take a fee, extract a plea and go home. Instead, seems that you’d need someone who follows the changes in these laws to raise ex post facto types of defenses and further, has the intellectual ability to press the preemption issue. Because the field of pot law is specialized, a lawyer can command higher rates, which is another benefit of a niche.

Second, pot law is a conversation starter – a practice area capable of making you that [pot] lawyer. The whole point of a niche practice is to make you memorable, and representing defendants charged with violations of marijuana laws will do just that.

For those who’ve never understood the concept of a “niche” practice area is, pot law practice is a great illustration. But if you’re still confused, take a look at this screen shot from one of my recent presentations which highlights what a niche is not:

Supreme Court Says Lawyers Must Advise Clients of Consequences of Guilty Plea

Carolyn Elefant — Wed, 31 Mar 2010 23:43:19 +0000

What sets us lawyers apart from computers or services like LegalZoom is our ability to counsel clients and help them make decisions. Counseling clients is the very essence of what we do as lawyers — so much so that failure to advise clients on obvious consequences of a decision to plead guilty — such as deportation — is ineffective assistance of counsel, at least according to yesterday’s Supreme Court ruling in Padilla v. Kentucky reported in New York Times.

Defendant Padilla, a Honduras native who lived in the U.S. for forty years with permanent resident status was charged with possession of 1000 pounds of marijuana. Padilla’s lawyer negotiated a plea arrangement under which Padilla would serve five years. But in response to Padilla’s inquiry about whether acceptance of the plea would result in deportation, Padilla’s lawyer incorrectly advised that the plea would have no effect. Turned out, Padilla’s lawyer was wrong, and Padilla appealed on ineffective assistance of counsel grounds, arguing that he would never have accepted the plea agreement if he’d been aware of the consequences.

In a majority decision written by Justice Stevens, the court held that in cases where the consequences of a guilty plea are “clear and succinct,” a lawyer must explain them to the defendant. Alito and Roberts concurred in the result, but felt that the majority’s test would impose a duty on lawyers to advise of a litany of possible, even remote consequences for every crime. Instead, Alito and Roberts found that an attorney provides ineffective assistance where, as in Padilla’s case, he offers inaccurate information in response to a client inquiry.

Though civil lawyers aren’t held to the Sixth Amendment ineffective assistance of counsel standard, Padilla still offers a valuable lesson. Clients’ decisions have consequences for them, and clients pay us lawyers to explain what those consequences are. Moreover, they rely on our explanation of those consequences. When we lawyers fail to ask the right questions or understand enough about an area of law to advise clients about all of the potential consequences of their decisions, we may not be ineffective in the technical, Sixth Amendment sense, but we haven’t done our job either.

Update: This story is important for solos who practice criminal law which is why I reported it (though in the bigger picture, I think that it also may have some relevance to unbundling, specifically, how far we can limit our scope of representation and avoid advice on collateral issues without betraying our ethical duties). If you want the real analysis of the implications of Padilla for criminal lawyers, read Greenfield at Simple Justice. If you’ve posted thoughts on the case, please share them in the comment section.

Resources for Solos and Small Firms Practicing Criminal Law

Carolyn Elefant — Thu, 03 Jul 2008 07:58:05 +0000

Russ Bensing of the Briefcase provides this quick but thorough recap
of the Supreme Court’s thirteen criminal law related decisions of the past term, with links to each of the decision. Bensing describes that his summary keeps with the original intention of his blog, which was to "create a resource for solo practitioners and small firm lawyers who don’t have the resources the big guys have for research."

Great job, Russ – linking to, and summarizing 13 Supreme Court rulings is not small feat. And for those who practice criminal law, bookmark or save this post so you can find it easily in the future.

A Solo At the Supremes

Carolyn Elefant — Mon, 05 Nov 2007 21:52:27 +0000

Over at The WSJ Law Blog, there’s a nice profile of Richard Diaz, the Florida solo who represents Michael Williams, a defendant who is challenging the constitutionality of a federal child-pornography statute in United States v. Williams. Last week, Diaz argued the case before the Supreme Court.

But despite his moment of glory at WSJ Law Blog, Diaz took a bit of a beating over at Volokh Conspiracy, where Eugene Volokh termed Diaz’s brief “pretty shoddy.” The post generated 66 comments, which discussed whether a brief even matters at the High Court (where talented law clerks could just as easily do the research and analysis) and whether Diaz hurt his client by handling the case himself instead of passing it on to another lawyer.

I’ll admit that Diaz’s brief isn’t a model of clear writing, but I’ve seen much, much worse. But how does Diaz’s brief compared to others filed at the Supreme Court by more experienced practitioners? And why is it that solos who represent criminal clients at the Supreme Court are regularly attacked by “experts” convinced that they could do a better job?

And maybe they could, at least up at the Court. But first, the cases have to get there. And I think that many of the experts underestimate the time and the skill that into shepherding a case from the trial level up to the Supremes (the WSJ post describes the procedural history of how Diaz’s client got to the court). Even where a case presents an interesting issue, most clients rarely “buy on.” They want to understand the issue and get a sense of their chance for success. They need to figure out if it’s worth the extra money and psychological toll to move ahead, or if they’re better off just making the best of a result to have a case over.

And the way you get clients to move ahead isn’t by pushing your legal analysis. Foremost, you’ve got to build a trusting relationship with your client so that they’ll accept your advice when you recommend pursuing an appeal to begin with. And Diaz established that kind of bond with his client.

Consider this quote from the WSJ Law Blog story, where Diaz describes why his client chose him over a Supreme Court expert:

I got calls from all over the country from lawyers who called themselves First Amendment advocates. Some graciously offered help, others aggressively tried to take the case away from me. One lawyer accused me of not being an appellate advocate and threatened to contact my client and directly to solicit the case from him. So I wrote to Mr. Williams and I honestly told him that I was neither an appellate advocate nor a First Amendment expert but asked him what he wanted me to do. He essentially told me, “I’ve known you for 20 years as a street cop and I’ve seen you work in the federal court building for over 10 years. There’s nobody I want arguing my case in front of the Supreme Court except you.”

Perhaps Diaz didn’t have the best Supreme Court brief. But he has something far more valuable: the thrill and honor of knowing that his client trusted him with one of the most important legal decisions of his life. And that’s something that many Supreme Court experts will never experience.

Great Criminal Law Resource, and Why It Helps Solos

Carolyn Elefant — Thu, 12 Apr 2007 11:59:22 +0000

At Illinois Trial Lawyer , Evan Schaeffer shares a wonderfully valuable resource, The Center for Criminal Justice Advocacy. The Center was formed as a free, non-partisan training resource to assist new lawyers in becoming competent criminal practitioners. And one of the Center’s missions is to provide newly licensed sole practitioners with materials to provide a structured analytical approach to planning and conducting a criminal trial. The site is chocked full of resources, including sample opening statements, witness interview forms and even law office management tips for solos setting up a criminal practice.

The CCJA site will help far more solos than those who specialize in criminal work – and in fact, arguably provides a more significant service for those who don’t necessarily seek to focus on criminal work. In my view, whether you want to practice criminal law or not, handling criminal cases on a court appointed basis offers an excellent way for solos to build skills and make some money at the same time. When I started my firm, I was adamant about getting into court so I signed up for DC’s court appointed panel. Within two years, I’d argued several suppression motions and had a couple of bench trials, two jury trials and sentencing hearings. I earned some money (enough to pay rent, at least) and acquired the experience that I’d craved. But I was fortunate: the DC Public Defender’s office offered a two day training program that taught new court appointed lawyers exactly what we needed to do from arraignment through appeals. That course, combined with a $60 handbook on DC Criminal Practice and a couple of days of court-watching gave me enough of a foundation to actually procure pretty good results, considering my lack of experience.

The CCJA site provides much of the background that I received in my DC training course (though of course, the information is more general rather than jurisdiction specific). Nevertheless, with a resource like this, new solos who want to sample criminal work either to make some money or get courtroom experience can do so more readily, while still serving clients with the level of competence they deserve.

Should you go with a judge or a jury?

Carolyn Elefant — Wed, 28 Jun 2006 22:02:19 +0000

Over at Legal Blogwatch, I posted here about a recent analysis by Volokh guest blogger Andy Leipold, who found that criminal defendants stand a
better chance of acquittal before a jury. I thought that the study might help some of my readers who practice criminal law to make more informed decisions about a bench or [jury] box trial.

And by the way, when postings here at MyShingle are slim, you can always catch me over at Legal Blogwatch writing about a variety of legal news stories.